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 CHAPTER II

THE LIMITS OF LIBERTY

THE power of the State may be defined as the

resultant of all the social forces operating within a
definite area. " It follows," says Professor Huxley,
with characteristic logical thoroughness, " that no
limit is, or can be, theoretically set to State inter-
ference."
Ab extra-this is so. I have always endeavoured
to show that the effective majority has a right (a
legal right) to do just what it pleases. How can
the weak set a limit to the will of the strong? Of
course, if the State is rotten, if it does not actually
represent the effective majority of the country, then
it is a mere sham, like some little old patriarch
who rules his brawny sons by the prestige of ancient
thrashings.
The time comes in the life of every Government
when it becomes effete, when it rules the stronger by
sheer force of prestige; when the bubble waits to be
pricked, and when the first determined act of resist-
ance brings the whole card-castle down with a crash.
The bouleversement is usually called a revolution.
On the contrary, it is merely the outward and visible

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 CHAP. II1 THE LIMITS OF LIBERTY 59

expression of a death which may have taken place

years before. In such cases a limit can be set to
State interference by the simple process of explod-
ing the State. But when a State is (as Hobbes
assumes) the embodiment of the will of the effective
majority-force majeure-of the country, then clearly
no limit can be set to its interference-ab extra.
And this is why Hobbes (who always built on fact)
describes the power of the State as absolute. This
is why he says that each citizen has conveyed all his
strength and power to the State.
I fail to see any a friori assumption here. It
is the plain truth of his time and of our own. We
may agree with John Locke that there ought to be
some limit to despotism, and we may keep on
shifting the concentrated force from the hands of
the One to those of the Few; from the hands of
the Few to those of the Many; and from the hands
of the Many to those of the Most-the numerical
majority. But this handing about of the power
cannot alter its nature; it still remains unlimited
despotism, as Hobbes rightly assumes. Locke's
pretence that the individual citizens reserved certain
liberties when the State was formed is of course the
merest allegory, without any more foundation, in
fact, than Rousseau's Contrat Social. It is on a
par with the " natural right " of every citizen born
into the world to an acre of land and a good
education. We may consider that nation wise
which should guarantee these advantages to all its
children, or we may not; but we must never forget
that the rights, when created, are created by the
will of the strong for its own good pleasure, and

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 6o LAW IN A FREE STATE CHAP.

not carved out of the absolute domain of despotism

by any High Court of Eternal Justice.
Surely it is the absence of all these a priori
vapourings, common to Locke, Rousseau, and Henry
George, which renders the writings of Hobbes so
fascinating and so instructive.
Shall we then sit down like blind fatalists in
presence of the doctrine "no limit can be set to
State interference"? Certainly not. I have admitted
that no limit can be set from without. But just as we
can influence the; actions of a man by appeals to
his understanding, so that it may be fairly said of
such an one "he cannot lie," and of another that it
is easier to turn the sun from its course than
Fabricius from the path of duty: so we may
imbue the hearts of our own countrymen with the
doctrine of individualism in such wise that it may
some time be said of England, "Behold a free
country." It is to this end that individualists are
working. Just as a virtuous man imposes re-
strictions on the gratification of his own appetites,
apparenttly setting a limit to his present will, and
compelling a body to move in a direction other
than that of least resistance, so, it is hoped, will
the wise State of the future lay down a general
principle of State action for its own voluntary guid-
ance, which principle is briefly expressed in the words
Let be.'
I Is it not a pity to go to France for a term to denote a political
idea so peculiarly English? The correct and idiomatic English for
laissez-faire is let lc. " Let me be," says the boy in the street, pro-
testing against interference. Moreover, it is not only colloquial but
classical. "The rest said, Let be, let us see whether Elias will come
to save him " (Matt. xxvii. 49).

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 II THE LIMITS OF LIBERTY

In his effort to supply destructive criticism of a

prioripolitical philosophy, which is the task Professor
Huxley set before him, it seems to me he has been
a little unjust to Individualism. He has taken for
granted that it is based on a priori assumptions and
arguments which are as foreign to the reasoning of
some of its supporters as to its own. The indi-
vidualist claims that under a system of increasing
political liberty, many evils, of which all alike com-
plain, would disappear more rapidly and more
surely before the forces of co-operation than they will
ever do before the distracted efforts of democratic
" regimentation."
Of course there are individualists as there are
socialists, and, we may add, artists and moralists and
most other -ists who hang most of their conclusions
on capital letters. We have Liberty and Justice
and Beauty and Virtue and all the rest of the family ;
but it is not fair to assert or even to insinuate that
Individualism as a practical working doctrine in this
country and in the United States is based on
reasoning from abstractions. Professor Huxley refers
to " moderns who make to themselves metaphysical
teraphim out of the Absolute, the Unknowable, the
Unconscious, and the other verbal abstractions whose
apotheosis is indicated by initial capitals." And he
adds, " So far as this method of establishing their
claims is concerned, socialism and individualism are
alike out of court." Granted-but so is morality.
Honesty, Truth, Justice, Liberty, and Right are
teraphim when treated as such, every whit as
ridiculous as the Unknowable or the Unconditioned.
Nevertheless it is surely possible to label general

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 62 LAW IN A4 FREE STA TE CHAP.

ideas with general names, after the discovery of their

connotation, without being charged with the worship
of abstractions. And unless Professor Huxley is
prepared to dispense with such general ideas as
Right and Wrong, True, Beautiful and Free, I fail to
see what objection he can have to the Unknowable
when employed to denote what has been so carefully
and clearly defined under that term by Mr. Spencer.
At the same time I admit that we have reason
to thank Professor Huxley for his onslaught on
Absolutism in politics, whereby he has done more
good to the cause of progress than he could ever
hope to do by merely dubbing himself either indi-
vidualist or socialist. When the majority learns that
its acts can be criticised, just as other people's acts
are criticised ; that it can behave in an "ungentle-
manly" manner, as well as in a wrongful manner;
that it should be guided in its treatment of the
minority by its conscience, and not solely by laws of
its own making; then there will be no scope for
any other form of government than that which- is
based on individualism; and the Rights of Man
will exist as realities, and not as a mere expression
denoting each man's private notions of what his
rights ought to be.
No one with the smallest claim to attention has
been known to affirm that this or any other nation
is yet ripe for the abolition of the State. Some of
the more advanced individualists and philosophical
anarchists express the view that absolute freedom
from State interference is the goal towards which
civilisation is making, and, as is usual in the ranks
of all political parties, there are not wanting im-

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 if THE LIMITS OF LIBERTY 63

patient persons who contend that now is the time for

every great reform.
Such are the people who would grant repre-
sentative institutions to the Fijians, and who would
model the Government of India on that of the
United States of America. They may safely be
left out of account. I suppose no one acquainted
with his political writings will accuse Mr. Victor
Yarros of backwardness or even of opportunism.
Yet, says he:-
The abolition of the external State must be preceded by the
decay of the notions which breathe life and vigour into that
clumsy monster: in other words, it is only when the people
learn to value liberty, and to understand the truths of the
anarchistic philosophy, that the question of practically abolish-
ing the State looms up and acquires significance.

Again, Mr. Benjamin Tucker, the high priest of

anarchy in America, claims that it is precisely what
is known in England as individualism. So far is
he from claiming any natural right to liberty that he
expressly repudiates all such a prioripostulates, and
bases his political doctrine on the evidence (of which
there is abundance) that liberty would be the mother
of order. Referring to Professor Huxley's attack on
anarchists as persons who build on baseless assump-
tions and fanciful suppositions, he says :-
If all anarchists were guilty of such folly, scientific men
like Professor Huxley could never be expected to have respect
for them; but the professor has yet to learn that there are
anarchists who proceed in a way that he himself would
enthusiastically approve; who take nothing for granted; who
vitiate their arguments by no assumptions; but who study
the facts of social life, and from them derive the lesson that
liberty would be the mother of order.

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 64 LAW IN A FREE STATE CHAP.

The truth is that the science of society has met

with general acceptance of late years, and (thanks
chiefly to Mr. Spencer) even the most impatient
reformers now recognise the fact that a State is an
organism and not an artificial structure to be pulled
to pieces and put together on a new model whenever
it pleases the effective majority to do so. Advice
which is good to a philosopher may be bad to a savage
and worse to an ape. Similarly institutions which
are well suited to one people may be altogether un-
suited to another, and the best institutions conceivable
for a perfect people would probably turn out utterly
unworkable even in the most civilised country of
this age. The most ardent constitution-framer now
sees that the chances are very many against the
Anglo-Saxon people having reached the zenith
of progress exactly at the moment when Nature has
been pleased to evolve him as its guide. And if it
must be admitted that we are not yet ripe for that
unconditioned individual liberty which may be the
type of the society of the future, it follows that for
the present we must recognise some form of State
interference as necessary and beneficent. The
problem is, What are the proper limits of liberty?
and if these cannot be theoretically defined, what
rules should be adopted for our practical guidance ?
With those who answer No limits, I will not quarrel.
Such answer implies the belief that we have as a
nation already reached the top rung of the ladder-
that we are ripe for perfect anarchy. This is a
question of fact which each can answer for himself.
I myself do not believe that we have attained to this
degree of perfection, and furthermore those who do

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 II THE L-IMITS OF LIBERTY 65

believe it cannot evade the task of fixing the

limits of liberty in a lower plane of social develop-
ment. We can force them to co-operate with
us by admitting their contention for the sake of
argument, and then asking whether the Russians
are ready for absolute freedom, and if so, whether
the Hindoos are ready, or the Chinese, or the Arabs,
or the Hottentots, or the tree-dwarfs? The ab-
solutist is compelled to draw the line sooner or
later, and then he is likewise compelled to admit
that the State has legitimate functions on the other
side of that line.
And he must also admit that in practice people
have to settle where private freedom and State action
shall mutually limit each other. Benjamin Tucker's
last word still leaves us in perplexity as to the
practical rule to be adopted now. Let me quote his
words and readily endorse then,-as far as they
go:-

Then liberty always, say the anarchists. No use of force,

except against the invader; and in those cases where it is
difficult to tell whether the alleged offender is an invader or
not, still no use of force except where the necessity of im-
mediate solution is so imperative that we must use it to save
ourselves. And in these few cases where we must use it, let
us do so frankly and squarely, acknowledging it as a matter
of necessity, without seeking to harmonise our action with any
political ideal or constructing any far-fetched theory of a State
or collectivity having prerogatives and rights superior to those
of individuals and aggregations of individuals and exempted
from the operation of the ethical principles which individuals
are expected to observe. This is the best rule that I can
frame as a guide to voluntary co-operators. To apply to it
only one case, I think that under a system of anarchy, even if
it were admitted that there was some ground for considering
F

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 66 LAW IN A FREE STATE CHAP.

an unvaccinated person an invader, it would be generally

recognised that such invasion was not of a character to
require treatment by force, and that any attempt to treat
it by force would be regarded as itself an invasion of a
less doubtful and more immediate nature, requiring as such
to be resisted.

But how far does this " best rule " carry us ? Let
us test it by the case selected. Mr. Tucker thinks
that under a r/gine of liberty it would be generally
recognised that such an invasion of the individual's
freedom of action as is implied by compulsory
vaccination is a greater and a worse invasion than
the converse invasion of the general freedom by
walking about in public " a focus of infection."
Perhaps it would be so recognised in some future
state of anarchy, but is it so recognised now ? I
think not. The majority of persons, in this country
at least, treat it, and consider that it ought to be
treated, as an offence; just as travelling in a public
conveyance with the scarlatina rash is treated.
And the question is,. What, in face of actual public
opinion, ought we to do to-day ? The rule gives
us no help. Even the most avowed State socialist
is ready to say that compulsion in such matters
is justifiable only when it is " so imperative that
we must use it to save selves." He is ready to
do so, if need be, " fairly and squarely, acknowledg-
ing it as a matter of necessity." But so is the
protectionist; so is the religious persecutor. Mr.
Tucker continues :-

The question before us is not what measures and means of

interference we are justified in instituting, but which of those
already existing we should first lop off And to this the

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 n THE LIMITS OF LIBERTY 67

anarchists answer that unquestionably the first to go should

be those that interfere most fundamentally with a free market,
and that the economic and moral changes that would result
from this would act as a solvent upon all the remaining forms
of interference.

Good again, but why ? There must be some

middle principle upon which this conclusion is based.
And it is for this middle principle, this practical
rule for the guidance of those who must act at
once, that a search must be made. To restate the
question :-
Can any guiding principle be formulated whereby
we may know where the State should interfere with
the liberties of its citizens and where it should not?
Can any definite limits be assigned to State action ?
Where in theory shall we draw the line which in
practice we have to draw somewhere?
Surely an unprincipled State is as bad as an un-
principled man. Yet what should we think of a
man who, in moral questions, decided each case on its
merits as a question of immediate expediency? who
admitted that he told the truth or told lies just as it
suited the object he had presently in view? We
should say he was an unprincipled man, and we
should rightly distrust him. An appeal to Liberty is
as futile as an appeal to Justice, until we have
defined Liberty.
Various suggestions have been made in order to
get over this difficulty. Some people say, Let every
man do what is right in his own eyes, provided he
does not thereby injure others. To quote Mill:-
The principle is that the sole end for which mankind are
warranted, individually or collectively, in interfering with the

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 68 LAW IN A FREE STATE CHAP.

liberty of action of any of their number, is self-protection : that

the only purpose for which power can be rightfully exercised
over any member of a civilised community against his will is
to prevent harm to others.

To this Lord Pembroke shrewdly replies

But how far does this take us ? The very kernel of our
difficulty is the fact that hardly any actions are purely self-
regarding. The greater part of them bear a double aspect-
one which concerns self, another which concerns others.

We might even go further; we might plausibly

maintain that every act performed by a citizen from
his birth to his death injures his neighbours more or
less indirectly. If he eats his dinner he diminishes
the supply of food and raises the price. His very
existence causes an enhanced demand for the neces-
saries of life; hence the cry against over-population.
One who votes on the wrong side in a Parliamentary
election injures all his fellow-countrymen. One who
marries a girl loved by another injures that other.
One who preaches Christianity or Agnosticism (if
untrue) injures his hearers and their relatives and
posterity. One who wins a game pains the loser.
One who sells a horse for more than it is worth
injures the purchaser, and one who sells it for less
than it is worth injures his own family.
Taking practical questions concerning which there
is much dispute; there are advocates of State
interference with the citizen's freedom to drink what
he likes, who base their action, not on the ground
that the State should protect a fool against the
effects of his folly, but on the ground that drink fills
the workhouses and the prisons, which have to be

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 n THE LIMITS OF LIBERTY 69

maintained out of the earnings of the sober; and,

furthermore, that drink leaves legacies of disease and
immorality to the third and the fourth generation.
Advocates of compulsory vaccination have been
heard to say that they would willingly leave those
who refuse the boon to perish of smallpox, but that
unvaccinated persons are foci of infection, and must
be suppressed in the common interest. Many people
defend the Factory Acts, not for the sake of the
apathetic workers who will not take the trouble to
organise and to defend themselves, but for the sake
of the physique of the next generation. The sup-
pression of gambling-hells is favoured by many, not
on account of the green-horns who lose their money,
but because they are schools of cheating and fraud,
and turn loose upon society a number of highly-
trained swindlers. On the whole, Mill's test will
not do.
Some say, "We must fall back on the consensus
of the people; there is nothing else for it ; we must
accept the arbitrary will-the caprice-of the govern-
ing class, be they the many or be they the few."
Others, again, qualify that contention. These say,
let us loyally accept the verdict of the majority.
This is democracy. I have nothing to urge against
it. But, unfortunately, it only shoves the question
a step further back. How are the many to decide
for themselves when they ought to interfere with the
minority and when they ought not? This is just the
guiding principle of which we are in search; and it
is no answer to tell us that certain persons must
decide it for themselves. We are amongst the
number; what is our vote going to be? Of course

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 yo0 LAW IN A FREE STATE CHAP.

the stronger can do what they choose; but what

ought they to choose? What is the wisest course
for their own welfare, leaving the minority out of the
reckoning ?
Socialists say, treat all alike, and all will be well.
But equality in slavery is not liberty. Even the fox
in the fable would not have had his own tail cut off
for the fun of seeing the other foxes in like plight.
After the event, it was quite another matter; and
one can forgive those who are worked to death for
demanding that the leisured classes shall be forced
to earn their living. Lock us all up in gaol, and we
shall all be equally moral and equally happy.
Nor is it any solution of this particular problem
to abolish the State, however prudent that course
might or might not be: the answer to the present
question is not " No Government! " For this again
merely throws the difficulty a step further back. We
may put the State on one side and imagine a purely
anarchic form of society, and the same question still
arises. That is to say, philosophical anarchists do
not pretend that the anarchy of the wild beasts is
conceivable among sane men, still less desirable,-
though they are usually credited with this imbecile
notion. They believe that all necessary restrictions
on absolute liberty can be brought about by voluntary
combination. Let us admit that this may be so.
The question then arises, for what purposes are
people to combine? Thus the majority in a club
can, if they choose, forbid billiard-playing on Sundays.
Ought they to do so? Of course the majority may
disapprove of and refrain from it, but ought they
to permit the minority to play? If not, on what

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 HI THE LIMITS OF LIBERTY 71

grounds ? The Christians in certain parts of Russia

have an idea that they are outwitted and injured
by their Jew fellow-citizens. If unrestrained by the
stronger majority outside-the State-they persecute
and drive off the Jews. Ought they to do this?
If you reply, " Leave it to the sense of the people,"
the answer is settled, they ought. It is, therefore,
no answer to our question to say, Away with the
State. It may be a good cry, but it is no solution
of our problem. Because you cannot do away with
the effective majority.
To reply that out of one hundred persons, the
seventy-five weak and therefore orderly persons can
combine against the twenty-five advocates of brute
force, is merely to beg the whole question. Ought
they to combine for this purpose ? And if so, why
not for various other purposes ? Why not for the
very purposes for which they are now banded
together in an association called the State?
You rejoin, "True, but it would be a voluntary
State, and that makes all the difference; no one
need join it against his will." My answer is, he need
not join it now. The existence of the burglar in our
midst is sufficient evidence for this. But since the
anarchy of the wild beasts is out of the question, it
is clear that certain arbitrary and aggressive acts on
the part of individuals must be met and resisted by
voluntary combination-by the voluntary combina-
tion of a sufficient number of others to overpower
them by fear, or, if necessary, by brute force. Again
I ask, for what purposes are these combinations to
be made?
Whether we adopt despotism or democracy,

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 72 LAW IN A FREE STA TE CHAP.

socialism or anarchy, we are always brought back to

this unanswered question, What are the limits of
group action in relation to its units ? Shall we say
that the State should never interfere with the mutual
acts of willing parties ? (And by the State I wish
to be understood as here meaning the effective
majority of a group, be it a club or be it a nation.)
This looks plausible, but alas! who are the parties ?
The parties acting, or the parties affected ? Clearly
the latter, for otherwise, two persons could agree to
kill a third. But who then are the persons affected ?
Suppose a print-seller, with a view to business,
exposes in his shop-window a number of objection-
able pictures, for the attraction of those only who
choose to look at them and possibly to buy them.
I have occasion to walk through that street; am I
a party ? How am I injured? Is my sense of
decency shocked and hurt? But if this is sufficient
ground for public interference, then I have a right to
call for its assistance when my taste is hurt and
shocked by a piece of architecture which violates the
laws of high art. I have similar ground of com-
plaint when a speaker gets up in a public place and
preaches doctrines which are positively loathsome to
me. I have a right of action against a man clothed
in dirty rags, or with pomaded hair or a scented
pocket-handkerchief.
If you reply that in these cases my hurt is
not painful enough to justify any interference with
another's freedom, I have only to cite the old and
almost forgotten arguments for the inquisition. The
possible eternal damnation of my children, who are
exposed to heretical teaching, is surely a sufficiently

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 II THE LIMITS OF LIBERTY 73

painful invasion of my happiness to warrant the

most strenuous resistance. And even to modefn
ears, it will seem reasonable that I should have
grounds of action against a music-hall proprietor
who should offend the moral sense of my children
with songs of a pernicious character. This test then
will not do.
It has been suggested that the State should not
meddle except on the motion of an individual
alleging injury to himself. In other words, that the
State must never act as prosecutor, but leave all
such matters entirely to private initiative; and that
no person should be permitted to complain that some
other person is injured or likely to be injured by the
act complained of. But there are two valid objec-
tions to this rule: firstly, it provides no test of
injury or hurt; secondly, it would not meet the case
of cruelty to animals or young children, or imbeciles
or persons too poor or too ill to take action. It
would permit of the murder of a friendless man.
This will not do.
May I now venture to present my own view? I
feel convinced that there is no a priori solution of
the problem. We cannot draw a hard and fast line
between the proper field of State interference and the
field sacred to individual freedom. There is no
general principle whereby the effective majority can
decide whether to interfere or not. And yet we are
by no means left without guidance. Take the
parallel region of morals : no man has ever yet
succeeded in defining virtue a priori All we can
say is that those acts which eventually conduce to
the permanent welfare of the agent are moral acts,

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 74 LA W IN A4 FREE S TATE CHAP.

and those which lead in the opposite direction are

inmoral. But if any one asks for guidance before-
hand, he has to go away empty. It is true, certain
preachers tell him to stick to the path of virtue, but
when it comes to casuistry they no more know which
is the path of virtue than he does himself. " Which
is the way to York?" asks a traveller. " Oh, stick
to the York Road, and you can't go wrong." That
is the sum and substance of what the moralists have
to tell us. And yet we do not consider that we are
altogether without guidance in these matters. Middle
principles, reached by induction from the experience
of countless generations, have been formulated, which
cannot be shown to be true by any process of deduc-
tion from higher truths, but which we trust, simply
because we have found them trustworthy a thousand
times, and our parents and friends have safely
trusted them too. Do not lie. Do not steal. Do
not hurt your neighbour's feelings without cause.
And why not ? Because, as a general rule, it will
not pay.
Where is the harm in saying two and two make
five? Either you are believed or you are disbelieved.
If disbelieved, you are a failure. One does not talk
for the music of the thing, but to convey a belief.
If you are believed, you have given away false coin
or a sham article. The recipient thinks he can buy
with it or work with it, and lo! it breaks in his hand.
He hates the cause of his disappointment. " Well,
what of that ? " you say; " if I had been strong
enough or plucky enough, I would have broken his
head, and he would have hated me for that. Then
why should I be ashamed to tell a lie to a man whom

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 n THE LIMITS OF LIBERTY 75

I deliberately wish to hurt? Here we come nearly

to the end of our tether. Experience tells us that it
is mean and self-wounding to lie, and we believe it.
Those who try find it out in the end.
And if this is the true view of individual morals,
it should also be found true of what may be called
Group Morals or State Laws. We must give up all
hope of deducing good laws from high general
principles, and rest content with those middle
principles which originate in expedience and are
verified by experience. And we must search for
these middle principles by observing the tendency of
civilisation. In morals they have long been stated
with more or less precision, but in politics they are
still unformulated. By induction from the cases
presented to us in the long history of mankind, we
can, I believe, find a sound working answer to the
question we set out with. All history teaches us
that there has been an increasing tendency to remove
the restrictions placed by the State on the absolute
liberty of its citizens. That is an observed fact
which brooks no contradiction. In the dawn of
civilisation, we find the bulk of the people in a state
of absolute bondage, and even those who supposed
themselves to be the independent classes, subject to
a most rigorous despotism. Every act from the
cradle to the grave must conform to the most savage
and exacting laws. Nothing was too sacred or too
private for the eye of the State. Take the Egyptians,
the Assyrians, the Babylonians, the Persians; we
find them all in a state of the most complete subjec-
tion to central authority. Probably the code of law
best known to us, owing to its adoption as the

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 76 LAW IN A FREE STA TE CHAP.

canvas on which European religion is painted, is the

code of the Jewish theocracy. Most of us know
something of the drastic and searching rules laid
down in the books of Moses. Therein we find every
concern of daily life ruled and regulated by the
Legislature; how and when people shall wash them-
selves, what they may eat and what they must avoid,
how the food is to be cooked, what clothes may be
worn, whom they may marry, and with what rites; while,
in addition to this, their religious views are provided
carefully for them and also their morals, and in case
of transgression, intentional or accidental, the form of
expiation to be made. Nor were these laws at all
peculiar to the Jews. On the contrary, the laws of
some of the contemporary civilisations seem to have
been, if possible, even more exacting and frivolously
meddlesome. The Greek and Roman laws were
nothing like the Oriental codes, but still they were
far more meddlesome and despotic than anything we
have known in our day. And even in free and
merry England we have in the olden times put up
with an amount of fussy State interference which
would not be tolerated for a week nowadays. One
or two specimens of early law in this country may
be cited in order to recall the extent and severity of
this kind of legislation.
They shall have bows and arrows and use the same of
Sundays and holidays; and.leave all playing at tennis or foot-
ball and other games called quoits, dice, casting of the stone,
kailes, and other such importune games.
Forasmuch as labourers and grooms keep greyhounds and
other dogs, and on the holidays when good Christians be at
church hearing divine service, they go hunting in parks,
warrens, and connigries, it is ordained that no manner of lay-

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man which bath not lands to the value of forty shillings a year
shall from henceforth keep any greyhound or other dog to hunt,
nor shall he use ferrets, nets, heys, harepipes nor cords, nor
other engines for to take or destroy deer, hares, nor conies, nor
other gentlemen's game, under pain of twelve months' imprison-
ment.
For the great dearth that is in many places of the realm of
poultry, it is ordained that the price of a young capon shall not
pass threepence, and of an old fourpence, of a hen twopence,
of a pullet a penny, of a goose fourpence.
Esquires and gentlemen under the estate of a knight shall
not wear cloth of a higher price than four and a-half marks,
they shall wear no cloth of gold nor silk nor silver, nor no
manner of clothing embroidered, ring, button, nor brooch of
gold nor of silver, nor nothing of stone, nor no manner of fur;
and their wives and daughters shall be of the same condition as
to their vesture and apparel, without any turning-up or purfle
or apparel of gold, silver, nor of stone.
Because that servants and labourers will not, nor by a long
season would, serve and labour without outrageous and excessive
hire, and much more than hath been given to such servants and
labourers in any time past, so that for scarcity of the said
servants and labourers the husbands and land-tenants may not
pay their rents nor live upon their lands, to the great damage
and loss as well of the Lords as of the Commons, it is accorded
and assented that the bailiff for husbandry shall take by the
year 13s. 3d. and his clothing once by the year at most; the
master hind ios., the carter ios., the shepherd ios., the oxherd
6s. 8d., the swineherd 6s., a woman labourer 6s., a dey 6s., a
driver of the plough 7s. at the most, and every other labourer
and servant according to his degree; and less in the country
where less was wont to be given, without clothing, courtesy or
other reward by covenant. And if any give or take by covenant
more than is above specified, at the first that they shall be
thereof attainted, as well the givers as the takers, shall pay the
value of the excess so taken, and at the second time of their
attainder the double value of such excess, and at the third time
the treble value of such excess, and if the taker so attainted
have nothing whereof to pay the said excess, he shall have forty
days' imprisonment.

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One can cite these extraordinary enactments by

the score, with the satisfactory result of raising a
laugh at the expense of our ancestors; but before
making too merry, let us examine the beam in our
own eye. Some of the provisions of our modern
Acts of Parliament, when looked at from a proper
distance, are quite as ludicrous as any of the little
tyrannies of our ancestors. I do not wish to tread
on delicate ground, or to raise party bias, and there-
fore I will resist the temptation of citing modern
instances of legislative drollery.' Doubtless the
permanent tendency in this country, as all through
history, is in a direction opposed to this sort of
grandmotherly government; but the reason is not,
I fear, our superior wisdom; it is the increasing
number of conflicting interests, all armed with demo-
cratic power, which renders it difficult. The spirit
is willing, but the flesh is weak.
I can imagine no healthier task for our new
school of social reformers than a careful inquiry into
the effects of all State attempts to improve humanity.
It would take too long to go through even a few of
them now. There are all the statutes of Plantagenet
days against forestalling and regrating and usury;
there are the old sumptuary laws, the fish laws, the
cloth laws, the Tippling Acts, the Lord's Day Observ-
ance Act, the Act against making cloth by machinery,
which, by its prohibition of the "divers devilish con-
trivances," drove trade to Holland and to Ireland,
I I may, however, refer to a quaint tract entitled " Municipal
Socialism," published by the Liberty and Property Defence League.
This capital satire on modern local legislation I take up in the name of
our forefathers and fling at the heads of those pharisaical reformers of
to-day who never weary of tittering at " the wisdom of our ancestors."

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and thus made it needful to suppress the Irish

woollen trade. Still, on the whole, as I have said,
State interference shows signs of becoming weaker
and weaker as civilisation progresses. And this
brings us back to our original question, What is the
rule whereby the majority is to guide itself as to
where it should interfere with the freedom of indi-
viduals and where it should not? It is this: while
according the same worship to Liberty in politics
that we accord to Honesty in private dealings, hardly
permitting ourselves to believe that its violation can
in any case be wise or permanently expedient,-
while leaning to Liberty as we lean to Truth, and
deviating from it only when the arguments in favour
of despotism are absolutely overwhelming, our aim
should be to find out by study of history what those
classes of acts are, in which State interference shows
signs of becoming weakened, and as far as possible to
hasten on the day of complete freedom in such matters.
When the student of history sees how the Statute
of Labourers broke down in its effort to regulate
freedom of contract between employer and employed,
in the interest of the employer, he will admit the
futility of renewing the attempt, this time in the
interest of the employed. When he reads the pre-
amble 1 (or pre - ramble, as it is aptly styled in
working-men's clubs) to James's seventh Tippling
Act, he will be less sanguine in embarking on modern
temperance legislation.
1 "Whereas, notwithstanding all former laws and provisions
already made, the inordinate and extreme vice of excessive drinking
and drunkenness doth more and more abound, to the great offence
of Almighty God and the wasteful destruction of God's good crea-
tures . . ."

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We find the same record of failure and accom-

panying mischiefs all along the line, and it is mainly
our ignorance of history that blinds us to the truth.
By this process of induction, the earnest and honest
reformer is led to discover what those individual
acts are which are really compatible with social
cohesion. He finds that while the State tends to
suppress violence and fraud and stealth with ever-
increasing severity, it is at the same time more and
more tolerant, not from sympathy, but from necessity,
of the results, good, bad, and indifferent, of free con-
tract between full-grown sane men and women.
And when a well-wisher to mankind has once
thoroughly appreciated and digested this general
principle, based as it is on a survey of facts and
history, and not woven out of the dream-stuff of a
priori philosophy, he will be content to remove all
artificial hindrances to progress, and to watch the
evolution of society, instead of trying to model it
according to his own vague ideas of the Just, and the
Good, and the Beautiful.
I wish to show that the only available method of
discovering the true limits of liberty at any given
period is the historic. History teaches us that there
has been a marked tendency (in the main continuous)
to reduce the number of State restrictions on the
absolute freedom of the citizens. State prohibitions
are becoming fewer and more definite, while, on the
other hand, some of them are at the same time more
rigorously enforced. Freedom to murder and to rob
is more firmly denied to the individual, while in the
meantime he has won the liberty to think as he
pleases, to say a good deal more of what he pleases,

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 iIf THE LIMITS OF LIBERTY 8I

to dress in accordance with his own taste, to eat

when and what he likes, and to do, without let or
hindrance, a thousand things which, in the olden
times, he was not allowed to do without State super-
vision. The proper aim of the reformer, therefore,
is to find out, by a study of history, exactly what
those classes of acts are in which State interference
shows signs of becoming weaker and weaker, and
what those other classes of acts are in which such
interference tends to be more rigorous and regular.
He will find that these two classes are becoming
more and more differentiated. And he will then, to
the utmost of his ability, hasten on the day of
absolute freedom in the former class of cases, and
insist on the most determined enforcement of the law
in the latter class. Whether this duty will in time
pass into other hands, that is to say, whether private
enterprise will ever supplant the State in the per-
formance of this function, and whether that time is
near or remote, are questions of the greatest interest.
What we are mainly concerned to note is that the
organisation or department upon which this duty
rests incurs a responsibility which must, if society is
to maintain its vitality, be faithfully borne. The
business of carrying out the fundamental laws
directed against the lower forms of competition,-
murder, robbery, fraud, etc.-must, by whomsoever
undertaken, be unflinchingly performed, or the entire
edifice of modern civilisation will fall to pieces.
It is enough to make a rough survey of the acts
of citizens in which the State claims, or has at one
time claimed, to exercise control; to track those
rlaims through the ages; and to note the changes

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 82 LAW IN A FREE STATE CHAP.

which have taken place in those claims. It remains

to follow up the tendency into the future. Any one
undertaking this task will, I repeat, find himself in
the presence of two large and fairly well-defined
classes of State restrictions on private liberty; those
which tend to become more thorough and invariable,
and those which tend to become weaker, more
spasmodic and variable. And he will try to abolish
these unprincipled interferences altogether, in the
belief, based on history, that, though some harm will
result from the change, a far more than compensat-
ing advantage will accrue to the race. In short,
what we have to do is to find the Least Common
Bond in politics, as a mathematician finds the Least
Common Multiple in the field of numbers.
Take these two joint-stock companies, and con-
sider their prospects. The first is formed for the
purpose of purchasing a square mile of land, for
getting the coal from under the surface, for erecting
furnaces on the land, for making pig-iron and con-
verting it into wrought iron and steel, for building
houses, churches, and schools for the workpeople, and
for converting them and their neighbours to the
Catholic faith, and for doing all such other matters
and things as shall from time to time appear good
to the Board of Directors. The second company is
formed for the purpose of leasing a square mile of
land, for getting the coal from under the surface, and
selling it to the coal-merchants. Now that is just
the difference between the State of the past and the
State of the future. The shareholders in the second
company are not banded together or mutually
pledged and bound by a multitude of obligations,

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 II THE LIMITS OF LIBERTY 83

but by the fewest compatible with the joint aim.

The company with the Least Common Bond is
usually the most prosperous. A State held together
by too many compacts will perform all or most of its
functions ill. What we have to find is this Least
Common Bond. Surely it would be absurd to argue
that because the shareholders should not be bound
by too many compacts, therefore they should not be
bound by any. It is folly to pretend that each
should be free to withdraw when and how he chooses;
that he should be free to go down into the pits, and
help himself to the common coal, in any fashion
agreeable to himself, so long as he takes no more
than his own portion. By taking shares in the Mid-
land Railway Company, I have not bought the right
to grow primroses on the line, or to camp out on the
St. Pancras Station platform. My liberty to do
what I choose with my share of the joint-stock is
suspended. I am to that extent in subjection. My
fellow-shareholders, or the majority of them, are my
masters. They can compel me to spend my own
money in making a line of rails which I am sure will
never pay. Yet I do not grumble. But if they had
the power (by our compact) to declare war on the
Great Northern, or to import Dutch cheeses and
Indian carpets, I should not care to be a shareholder
of that Company-a citizen of that State.
What we have got to do, then, is to purge the
great company which has long ago been formed for
the purpose of utilising the soil of this country to
the best effect, from the multifarious functions with
which it has overburdened itself. We, the share-
holders, have agreed that the Red Indian system is

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 84 LAW IN A FREE STATE CHAP.

not suited to this end; and we have therefore agreed

to forgo our rights (otherwise admitted) of taking
what we want from each other by force or fraud.
This seems to be a necessary article of association.
There is nothing to prevent us from agreeing to
forgo other rights and liberties if we choose; and
possibly there may be some other restraints on our
individual liberty which can be shown to be desirable,
if not essential, to the success of the undertaking.
If so, let them be stated, and the reason for their
adoption given. If, on the other hand, it can be
shown that a large and happy population can be
supported on this soil without any other mutual
restriction on personal freedom than that which is
involved in the main article of association, would it
not be as well for all if each kept charge of his own
conscience and his own actions?
Criticising this view, Mr. F. Evershed makes war,
as it seems to me, upon the Method of Ihduction
itself. I argue that because a certain tendency has
been observed as an increasing tendency throughout
the whole history of civilisation, we are justified in
concluding that that tendency is persistent and bene-
ficial. Mr. Evershed replies by citing cases of an
opposite tendency over short periods, such as the
manifest tendency of the State in Plantagenet times
to interfere in such matters as the price of chickens
and ducks. Mr. Thorold Rogers, in a lecture in
1883 on Laissez-Faire,referred to the tendency at
the present day towards collectivism in legislation,
and drew the conclusion that we must expect more
of it, and furthermore that it is probably beneficial.
This kind of argument can be best examined by the

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 II THE LIMITS OF LIBERTY

light of illustration. At one time navigators rightly

observed that as a general rule (not affected by
exceptions) the further you travel south, the hotter it
is. It was not till the equator was crossed that the
generalisation was shown to be false. Before the
days of Torricelli, it was said that " Nature abhors a
vacuum." It was not until Torricelli had balanced
the weight of the atmosphere with 32 feet of water
that it was discovered that Nature exults in a
vacuum; only under certain circumstances. If Adam
was created at the full moon he would have been
justified in asserting, after a few days, that in about
a fortnight the moon would cease to exist; if his
birthday was on the 2 1st December he would have
been similarly justified in believing that the climate
gets hotter and hotter every day, and that after
many days he would be roasted. Six months later
he would have to unlearn this teaching of experience.
Again, if I affirm that the sea is encroaching on the
land in south-east Yorkshire, Mr. Evershed might
point to the ebb of the tide by way of confutation.
Or, better still, he might point to the marine fossils
embedded in the rocks far away inland to prove that,
as a fact, the land was encroaching on the sea.
Now I think Mr. Evershed will admit that all we
are enabled to do by the method of induction is to
make our observations cover as wide a field as
possible, to base our conclusions upon that wide
survey, and to act upon such conclusions for what
they are worth. In what are called the practical
sciences, our generalisations are formed with a
purpose. " Honesty is the best policy " may or may
not be true for all time and in the far-off planets,

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but for our present purposes we take it as proved.

If a little girl was playing on the rocks just after
high tide, it would be a purposeless and unkind truth
to tell her that the sea was encroaching on the land.
To all intents and purposes it would be an untruth.
To tell a harbour company the same thing would be
a wholesome truth; to tell a geologist the reverse
would be also a truth requiring qualification or
explanation. The absolute and ultimate truth is
unknown-possibly unknowable. If we assume, as
some say, that at one time a shallow ocean covered
the whole surface of the earth, then the ultimate
truth is that the land is encroaching on the sea.
Now, for the purposes of social government or
organisation, I observe that laissez-faire has been an
increasing tendency from the earliest times down to
to-day; not without perturbations and aberrations,
but on the average and on the whole. I further
observe that whatever adaptations take place over a
long period, persistently and increasingly, in organised
beings, are beneficial to them. If the trunks of
elephants and the necks of giraffes grow longer and
longer as the centuries pass, I conclude that long
trunks and long necks enable the animals to reach
food otherwise unattainable, or are otherwise beneficial
to them. When I see races of men adopt rules and
customs over very long periods, such as paternal recog-
nition of offspring or collective suppression of indi-
vidual brute force, I similarly infer that these customs
are beneficial to the race. There are exceptions, I
know. Sometimes these are due to exceptional
circumstances which are known. Sometimes we
cannot account for them at all. Sheep are getting

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more and more stupid, pigs are getting fatter and

fatter, and toy - terriers are getting smaller and
weaker, and all three are less capable of self-defence,
and of self-help in the search for food than they
used to be. But we know the cause.
Oddly enough, Mr. Evershed accepts the argu-
ment from tendencies in the field of ethics. "We
know," he says, "that in all times men of all degrees
of honesty and dishonesty have lived side by side
and entered into competition with each other-
therefore there is a strong presumption that those
moral principles which in the course of time have
become predominant, are the most beneficial. The
others have had the same chance and failed." But,
to use his own words when criticising State morals,
"how far does this take us? Because London has
been hitherto getting bigger, will it eventually spread
over the whole island ? " Will honesty end in the
frankness of the crystal man who never says " Not
at home " when he is upstairs, who never says
"Glad to see you " when he is sorry, who never
regrets to be unable to come " when he is delighted
to have an excuse? If not, how far will it take us?
The answer is-far enough. The principle is good
enough for working purposes. And that is what I
affirm of the principle of let-be. Stick to it. It has
worked well up to now, whenever and wherever it
has been fairly tried. If it breaks down when the
sun grows cold and the air is " froze stiff," it will be
time enough to go into its absolute merits and to
find something better.
But Mr. Evershed draws a very important distinc-
tion between moral and political tendencies. In the

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latter case, he says, " the prime conditions necessary

for the automatic process of selection-diversity and
competition-have not been present to anything like
the same extent. States do not intermingle like in-
dividuals, but occupy separate areas, often of large
extent. Over every such area there is generally uni-
formity of system; and if the system is occasionally
changed, it is only to be replaced by another uniform
system."
Here I must join issue uncompromisingly. Even
under absolute despotism the same ruling authority
applies different political principles in different
departments; still more is this the case in constitu-
tional and democratic States. In our own country
at the present time, we have Individualism paramount
in many departments of activity, while in other
departments (e.g. sexual relations) the most stringent
socialism prevails. In religion, we have Parliament
making laws for one Christian sect and leaving the
others free to make their own laws. If nineteen
men on nineteen stools without sixpence among
them choose to buy on credit to any amount, they
may do so; but if twenty men commence similar
operations, the State steps in, takes half their affairs
out of their hands, publishes or compels them to
publish the state of their finances, their several inter-
relations, and a variety of other matters : which
makes their efforts ineffectual. Our law of partner-
ship is the embodiment of Individualism. Our law
of joint-stock companies is the embodiment of the
crudest Socialism. All through the criminal law, all
through the civil law, we find the same absence of
uniformity. Perhaps the law relating to fox-hunting

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is the most marvellous medley of anarchy and

socialism known to the world. Woe betide the
Government that tampers with it. Why, the State
which dared to muzzle all the dogs in the country,
slunk trembling away from the kennels. Muzzle the
fox-hounds and out goes the Government. Then
consider the individualism in the West-End Clubs,
and contrast it with the socialism to which the
Working-Men's Clubs are subjected.
All this is quite apart from the local variations
admitted by Mr. Evershed himself, some of which
are created by law, others by public opinion, and
others, as he says, by rebellion. The Scotch and
the English law of contract do not rest on the same
fundamental principle even. And some people say
that the right of public meeting is one thing in
England and another in Ireland; whereas in Wales
one cannot have a glass of beer with one's Sunday
sandwich. And so on, and so on. All this diversity
and competition have resulted in proving the folly of
Socialism.
And here I should like to guard myself against
misapprehension. Individualists are usually sup-
posed to regard the State as a kind of malevolent
ogre. Maleficent it is; but by no means male-
volent. The State never intervenes without a reason,
whether we deem that reason valid or invalid. The
reasons alleged are very numerous and detailed, but
they all fall under one of two heads. The State
interferes either to defend some of the parties con-
cerned against the others, or to defend itself against
all the parties concerned. This has nothing to do
with the distinction between crimes and civil in-

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juries; it is more in line with the ethical distinction

between self-regarding and other-regarding vices.
Thus when a State punishes prize-fighters, it is not
because one of them injures the other, but because
the sport is demoralising: the State is itself injured,
and not any determinate person. Similarly, there
are many laws punishing drunkenness, quite apart
from the violence and nuisance due to it. In these
cases the State alleges that, though no determinate
citizen is injured, yet the race suffers, and that it
rightly punishes the offence with a view to eliminat-
ing the habit.
Putting on one side all those acts which injure
determinate persons, whether crimes or civil injuries,
let us see what the State has done and is doing in
this country with regard to acts against which no
particular citizen has any good ground of complaint.
We may classify the subjects of these laws either
according to the object affected, or according to the
vice aimed at.
Taking some of the minor objects of the State's
solicitude by way of illustration, we find that at one
time or another it has interfered more or less with
nearly all popular games, many sports, nearly the
whole of the fine arts, and many harmless and
harmful pleasures which cannot be brought under
any of those three heads.
In looking for the motive which prompted the
State to meddle with these matters, let us give our
fathers credit for the best motive, and not, as is
usually done, the worst. Football, tennis, nine-pins,
and quoits were forbidden, as I have pointed out,
because the State thought that the time wasted over

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them might more advantageously be spent in

archery, which was quite as entertaining and far
more useful. That was a good reason, but it was
not a sufficient reason to modern minds; and more-
over the law failed in its object. Some other games,
such as baccarat, dice, trump, and primero, were put
down because they led to gambling. And gambling
was objected to for the good and ample reason that
those who indulge in it are morally incapacitated for
steady work. Lotteries and betting come under
this censure. One who thinks he sees his way to
make a thousand per cent on his capital in a single
evening without hard work cannot be expected to
devote himself with zeal to the minute economics of
his trade, for the purpose of making six per cent
instead of five on the capital invested. Wealth pro-
duction is on the average a slow process, and all
attempts to hurry up nature and take short cuts to
opulence are intoxicating, enervating, disappointing,
and injurious, not only to those who make them,
but to all those who witness the triumph of the
lucky, without fixing their attention on the unsuc-
cessful. Gambling, in short, is wrong; but this
does not necessarily warrant the State in forbidding
it. Another reason alleged on behalf of interference
was, and still is, that the simple are outwitted by
the cunning. But as this is true of all competition,
even the healthiest, it does not seem to be a valid
reason for State action. It is also said that games
of chance lead to cheating and fraud. - But this is
by no means a necessary consequence. Indeed,
some of the most inveterate gamblers are the most
honourable of men. Again, the State refuses to

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sanction betting contracts for the same reason that

under the Statute of Frauds it requires certain
agreements to be in writing; namely, to ensure
deliberateness and sufficient evidence of the trans-
action. I think Barbeyrac overlooks this aspect of
the case in his Trait/ de Jeu, in which he defends
the lawfulness of chance games. He says:-
If I am at liberty to promise and give my property,
absolutely and unconditionally, to whomsoever I please, why
may I not promise and give a certain sum, in the event of a
person proving more fortunate or more skilful than I, with
respect to the result of certain contingencies, movements, or
combinations, on which we had previously agreed ? ...
Gaming is a contract, and in every contract the mutual con-
sent of the parties is the supreme law; this is an incontestable
maxim of natural equity.

But, as matter of fact, the State does not pro-

hibit, or even refuse to sanction, all contracts based
on chance. It merely requires all or some of the
usual guarantees against impulse, together with suffi-
cient evidence and notification. It is true, you are
not allowed to bet sixpence with a friend in a
public-house that one horse will beat another in a
race; you are allowed to bet a thousand pounds on
the same event in your own house or at Tattersall's;
but if you win and do not get paid you have no
redress in a court of law. But if you bet that your
baby will die within twelve months, you are not only
permitted to make the bet, but, in case the con-
tingency arises, you can recover the stakes in a
Court, provided always the gentlemen you bet with
have taken the precaution to dub themselves Life
Assurance Society. You may also send a ship to

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 1II THE LIMITS OF LIBERTY 93

sea, and bet that it will go to the bottom before it

reaches its destination. You will recover your odds
in a Court, provided the other parties are called
underwriters, or some other suitable name. You
may bet that some one will set fire to your house
before next Christmas, and, if this happens, the
Court will compel the other party to pay, though
the odds are about iooo to I-provided such other
party is called a Fire Insurance Office. Again, if
twenty men put a shilling each into a pool, buy a
goose, a sirloin of beef, and a plum-pudding, and
then spin a teetotum to see who shall take the lot,
that is a lottery, and the twenty men are all
punished for the sin by the State. But if a lady
buys a fire-screen for 63, and the same twenty men
put a sovereign each into the pool, and spin the tee-
totum to see who shall have the screen, and the 620
goes to the Missionary Society, that is called a
bazaar raffle, and no one is punished by the State.
If a dozen men put a hundred pounds apiece into a
pool, to be the property of him who outlives the
rest, that is called tontine, and is not only permitted
but guaranteed by the State. If you bet with
another man that the Eureka Mine Stocks will be
dearer in three months than they are now, that is
called speculation on the Stock Exchange, and the
State will enforce the payment of the bet. But if
you bet that the next throw of the dice will be
higher than the last, that is called gambling, and the
State will not enforce the payment of the bet. If
you sell boxes of toffee for a penny each, on the
understanding that one box out of every twenty
contains a bright new threepenny-bit, that again is

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 94 LAW IN A FREE STATE CHAP.

called a lottery, and you go to prison for the crime.

But if you sell newspapers for a penny each, on the
understanding that in a certain contingency the
buyer may net l oo, that is called advertisement,
and you go not to prison, but possibly (if you sell
plenty) to Parliament. If you bet that somebody
will redeem his written promise to pay a certain sum
of money at a certain date, that is called bill-dis-
counting, and the State sanctions the transaction;
but if you bet that the same person will defeat his
opponent in a chess-match (though similarly based
on a calculation of probabilities and knowledge of
his character and record), it is a transaction which
the State frowns at, and certainly will not sanction.
Who now will say that the State refuses to sanction
bets ? Gambling, speculation, raffles, lotteries, bill-
discounting, life-assurance, fire - insurance, under-
writing, tontine, sweepstakes- what are these but
different names for the same kind of bargain,-a
contract based on an unforeseen contingency,-a
bet? And yet how differently they are treated by
the State! Neither is it fair to charge the State
with a puritanical bias against gambling. Religion
had nothing to do with anti-gaming legislation; for
the State both tolerates and enforces wager con-
tracts, when they are the result of mature delibera-
tion, sufficiently evidenced, and, as in the case of
life-assurance, insurance against fire or shipwreck,
etc., free from the suspicion of wild intoxication.
The State has prohibited certain sports because
they are demoralising, e.g. prize-fighting; and others
because they are cruel without being useful, e.g.
cock-fighting, bear-baiting, bull-fights, etc. Angling

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it regards as useful, and therefore does not condemn

it, although it combines cruelty with the lowest form
of lying. Agitations are from time to time set on
foot for the purpose of putting down fox-hunting
on similar grounds. But, fortunately, the magni-
ficent effects of this manly sport on the physique of
the race are too palpable to admit of its suppression.
Pigeon-shooting is a very different matter. Chess
never seems to have fallen under the ban of the law;
but billiards, for some reason which I cannot discover,
has always been carefully supervised by the State.
Coming to the fine arts, they all of them seem to
be regarded by the Legislature as probable incentives
to low sensuality. Architecture is the solitary ex-
ception. Even music, which would seem to approach
nearer to divine perfection and purity than any
other earthly thing, is carefully hedged about by
law; possibly, however, this is on account of its
dangerous relation to poetry, when the two are
wedded in song. When we come to the arts of
sculpture, of painting (and its allies, printing, draw-
ing, photography, etc.), of literature (poetry and
prose), of the drama, and of dancing, we are bound
to admit that in the absence of State control they
are apt to run to licentiousness. But whether it is
wise of society, which has been compelled to abstain
from interference with sexual irregularity, to penalise
that which is suspected of leading to it, is an interest-
ing point. Fornication in itself is no longer even a
misdemeanour in this country. The Act 23 & 24
Vict. c. 32 applies only to conspiracy to induce a
woman to commit fornication; " provided," as Mr.
justice Stephen surmises, " that an agreement be-

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tween a man and a woman to commit fornication is

not a conspiracy." At the same time, whatever we
may think of these State efforts to encourage and
bolster up chastity by legislation, it is not quite
honest to ignore or misrepresent the State motive.
Monogamy is not the outcome of religious asceticism.
We have only to read the Koran or the Old Testa-
ment to see that polygamy and religion can be on
very good terms. The highest civilisations yet
known are based on the monogamic principle; and
any one who realises the effect of the system on the
children of the community must admit that it is a
most beneficial one, quite apart from the religious
aspect. Whether the action of the State conduces
to this result is quite another question. All I assert is
that the State is actuated by a most excellent motive.
The first observation on the whole history of this
kind of legislation is that it has been a gigantic
failure. That is to say, it has not diminished the
evils aimed at in the smallest degree. It has rather
increased them. It has crabbed and stunted the fine
arts, and thereby vulgarised them. By its rough and
clumsy classifications it has crushed out the appeals
of Art to the best feelings of human nature, and it
has diverted what would have been pure and whole-
some into other channels. The man who does not
see every emotion of the human soul reflected and
glorified in nature's drama around him must be a
poor prosaic thing indeed. But we need not go to
nature for what has lately been termed suggestive-
ness. We need not stray beyond the decorative art
of dress, which seems to have exercised a special
fascination over the sentimental Herrick. The

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logical outcome of systematic repression of sensual

suggestiveness is State-regulated dress. Something
like this has often been attempted. In England,
during the thirteenth and two following centuries,
dress was both regulated by Act of Parliament and
cursed from the pulpit. Eccleston mentions how
Serlo d'Abon, after preaching before Henry I. on the
sinfulness of beards and long hair, coolly drew a
huge pair of scissors from his pocket after the ser-
mon, and, taking advantage of the effect he had pro-
duced, went from seat to seat, mercilessly cropping
the king himself and the whole congregation. The
same writer, speaking of the Early English period,
tells us that " long toes were not entirely abandoned
till Henry VII., notwithstanding many a cursing by
the clergy, as well as severe legal penalties upon
their makers." I am afraid neither the cursing of
the clergy nor the penalties of the law have had the
desired effect, for we must remember that it was not
the gold nets and curled ringlets and gauze wings
worn at each side of the female head, nor the
jewelled stomachers, which were the peculiar objects
of the aversion of State and Church, but the sensualis-
ing effect of all over-refinement in the decoration of
the body.
If there is one thing more difficult than another,
it is to say where the line should be drawn between
legitimate body-decoration and meretricious adorn-
ment. When art critics like Schlegel are of opinion
that the nude figure is far less allective than care-
fully arranged drapery, it is surely the height of
blind faith to entrust the State and its blundering
machinery to lay down the laws of propriety in the
1-

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 98 LAW IN A FREE STA TE CHAP.

matter of dress. What we should think indecent in

this country is not thought indecent among the
Zulus, and since the whole question is as to the
effect of certain costumes on certain persons, and
since those persons are the general public in any
particular country, one would imagine that the
proper course to adopt would be to leave the deci-
sion upon particular cases, as they crop up, to that
public. The public may be a bad judge or a biassed
judge, but at least it is a more suitable judge than
a lumbering State, working on general principles
vaguer than a London fog.
Again, recent modern attempts to " purify " litera-
ture have brought the whole crusade into derision,
and made us the laughing-stock of Europe. Yet all
has been done with the best intentions-even the
prosecution of the sellers of Boccaccio's Decameron.
But there are moral questions in which the State
concerns itself, which do not fall under the heads of
games, sports, nor fine arts, such as drinking, opium-
eating, tobacco-smoking, and the use of other stimu-
lants. These indulgences and artificial aids to sensual
gratification have been and still are regulated and
harassed by the State. Nor is it so long ago that
the memory of man runneth not, since our own
Government made stringent rules as to the number
of meals to be eaten by the several grades of society.
The Roman law actually specified the number of
courses at each meal. An ancient English writer
refers with disgust to the then new-fangled cookery
which was coming into vogue in his day, "all brenning
like wild-fire." But I have yet to learn that gluttony
is on the decrease. And we have it on the highest

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medical authority that more deaths and more diseases

can be traced to over-eating than to over-drinking, even
in this tippling country. Nor have the laws enacted
against sexual irregularities from time immemorial
up to this day diminished, much less stamped out,
the evil. We empty the casinos only to fill the
streets, and we clear the streets only to increase the
number and deteriorate the quality of houses of ill-
fame. And during both processes we open the door
to official black-mailing. The good old saying that
you cannot make people moral by Act of Parlia-
ment has been, and still is, disregarded, but not
with impunity. Surely the State, which has con-
spicuously failed in every single department of
moralisation by force, may be wisely asked in future
to mind its own business.
But is it not possible to fix our eyes too per-
sistently and fanatically on the State? Do we not
suffer from other interferences quite as odious as the
tyrannies of the Effective Majority? Here is what
Mr. Pickard said on the Eight-hours question at the
Miners' Conference at Birmingham some few years
since. Somebody had pointed out that the Union
could themselves force short hours upon the em-
ployers, if need be, without calling upon the Legisla-
ture. " If," he replied, " no bad result is to follow
trade-union effort, how is it possible for a bad result
to follow the same arrangement brought about by
legislation ? " Commenting on this with approval,
justice, the organ of the Social Democratic Federa-
tion, says :-
This is a question which Mr. John Morley and the rest
of the politicians who prate about the need for shorter working

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 1oo0 LAW IN A FREE STATEB CHAP.

hours, while opposing the penalising of over-work, should set

themselves to answer. Obviously there is no answer that will
justify their position. If the limitation of the hours of labour
is wrong in principle, and mischievous, harmful, and destruc-
tive of our national prosperity, it is just as much so whether
effected by trade-union or by legislation.

There is a soul of truth in this. Of course we

may point out, firstly, that the passing of a Bill for
the purpose is no proof that the majority of the
persons primarily affected really desire it, whereas
the enforcement of the system by trade-unionism is
strong evidence that they do; and secondly, that the
Legislature cannot effect these objects without simul-
taneously creating greater evils owing to the neces-
sary operation of State machinery. But I venture
to say that the central truth of Mr. Pickard's remark
lies a good deal deeper than this. I think we
individualists are apt to fix our eyes too exclusively
upon the State. Doubtless it is the greatest trans-
gressor. But after all, when analysed, it is only a
combination of numerous persons in a certain area
claiming to dictate to others in the same area
what they shall do, and what they shall not do.
These numerous persons we call the effective
majority. It is precisely in the position of a cricket-
club, or a religious corporation, or any other com-
bination of men bound together by rules. Not
very long ago the Bishop of Lincoln was ruthlessly
persecuted by the majority of his co-religionists be-
cause he performed certain trifling rites. I would ask
the Church of England whether, in its own interest,
-in the interest of the majority of its own members,
-it would not be wiser to repeal these socialistic

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 IIT THE LIMITS OF LIBERTY TOT

rules against practices perfectly harmless in them-

selves. Here again we have a cause c/libre tried
before the Jockey Club. Quite apart from the out-
side interference of the State, this club can and does
sanction its own laws most effectively. It can ruin
any trainer or jockey whenever it chooses; that is to
say, whenever he violates the laws it has made.
These laws, fortunately, are about as good as human
nature is capable of, and those who suffer under
them richly deserve their fate. But it might be
otherwise. And even in this exemplary code there
is an element of despotism which might be dispensed
with. A jockey must not be an owner. Very good;
the object is clear, and the intention is excellent.
Of course a jockey ought not to expose himself to
the temptation of riding another man's horse so as
to conduce to the success of his own. No honour-
able man would yield to the temptation. On the
other hand, few owners would trust a jockey whose
own horse was entered for the same race. Now I
venture to submit that it would be better to leave
the matter entirely to the jockey's own choice, and
to reserve the penalty for the occasion where
there is convincing evidence that the jockey has
abused his trust. A jockey charged with pulling,
and afterwards found interested as owner or part-
owner or backer of another horse in the same race,
would then be dealt with under the Jockey Club
law, not before. I would strongly advise a jockey to
keep clear of ownership, and even of betting (on any
race in which his services are engaged), but I would
not make an offence out of that which in itself is
not an offence, but which merely opens the door to

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 IO2 LAW IN A FREE STATE CHAP.

temptation. This has nothing whatever to do with

the State or with State law. It is entirely a question
of what may, broadly speaking, be called Lynch
law. I have recently examined the rules of some of
the principal London clubs, and I find that they
are, many of them, largely socialistic. Unless I am
a member, I do not complain. I merely ask whether
the members themselves would not do wisely to
widen their liberties. The committee of a certain
club had recently a long and stormy discussion as to
whether billiards should be permitted on Sundays.
In nineteen out of twenty clubs the game is dis-
allowed. The individualists predominated, and the
result is that those who do not want to play can
refrain; they are not compelled to play. Those who
wish to play are not compelled to refrain.
I can imagine a people with the State reduced to
a shadow,-a Government attenuated to the admin-
istration of a very tolerant criminal code,-and yet
so deeply imbued with socialism in all their minor
combinations as to be a nation of petty despots: a
country where every social clique enforces its own
notions of Mrs. Grundy's laws, and where every club
tyrannises over its own members, fixing their politics
and religion, the limits of stakes, the hours of clos-
ing, and a countless variety of other matters. There
is or was a club in London where no meat is served
on Fridays. There are several in which card-players
are limited to half-crown points. There are many
more where one card game is permitted and another
prohibited. Whist is allowed at the Carlton, but
not poker. Then again the etiquette of the pro-
fessions is in many cases more irksome and despotic

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 n THE LIMITS OF LIBERTY 1o3

than the law of the land. Medical men have been

boycotted for accepting small fees from impecunious
patients. A barrister who should accept a brief
from a client without the intermediary expense of a
solicitor would sink to swim no more: although the
solicitor's services might be absolutely worthless.
Consider also the rules of the new Trade-unionism.
I need not go into these. The freedom, not only of
voluntary members, but of citizens outside the ring,
is utterly trampled under foot. And this brings us
back to Mr. Pickard and the soul of truth in his
argument. I affirm that a people might utterly
abolish and extirpate the State, and yet remain
steeped to the lips in socialism of the most revolting
type. And I think, as I have said, it is time for
those of us who value freedom and detest despotism,
from whatever quarter it emanates, to ask ourselves
what are the true principles of Lynch law. Suppose,
for example, there was no State to appeal to for
protection against a powerful ruffian, what should I
do? Most certainly I should combine with others
no stronger than myself, and overpower the ruffian by
superior brute force. Ought I to do this? Ought
I not rather to allow the survival of the fittest to
improve the physique of the race-even at my ex-
pense ? No? Then ought I to combine with others
against the freedom of the sly pick-pocket, who
through his superior dexterity and agility and cool
courage prevails over me, and appropriates my watch,
without any exercise of brute force ? Are not these
qualities useful to the race ? Then why should I
conspire with others against the harmless sneak who
puts chicory in his coffee? If I do not like his

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 1o4 LA WIN A4 FREE STATE CHAP.

coffee, I can go and buy somebody else's. If he

chooses to offer me stone for bread at fourpence a
pound, and if I am foolish enough to take it at the
price, I shall learn to be wiser in future, or else perish
of starvation and rid the race of a fool. Then again
why should I not conspire? Or are there some sorts
of combination which are good, and properly called
co-operation, while others are bad, and properly called
conspiracy ? Let us look a little into this matter of
combination, - this arraying of Quantity against
Quality.
Hooks and eyes are useful. Hooks are use-
less; eyes are useless. Yet in combination they
are useful. This is co-operation. Where you have
division of labour, and consequent differentiation of
function, and eventually of structure, there is co-opera-
tion. Certain tribes of ants have working members
and fighting members. The military caste are unable
to collect food, which is provided for them by the
other members of the community, in return for which
they devote themselves to the defence of the whole
society. But for these soldiers the society would
perish. If either class perished, the other class
would perish with it. It is the old fable of the belly
and the limbs.
Division of labour does not always result in
differentiation of structure. In the case of bees and
many other insects we know that it does. Among
mammals beyond the well-marked structural division
into male and female, the tendency to fixed structural
changes is very slight. In races where caste prevails,
the tendency is more marked. Even in England,
where caste is extinct, it has been observed among

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 n THE LIMITS OF LIBERTY 1og

the mining population of Northumbria. And the

notorious short-sightedness of Germans has been set
down to compulsory book-study. As a general rule,
we may neglect this effect of co-operation among
human beings. The fact remains that the organised
effort of oo individuals is a very great deal more
effective than the sum of the efforts of oo unorgan-
ised individuals. Co-operation is an unmixed good.
And the Ishmaelitic anarchy of the bumble-bee is
uneconomic. Hostility to the principle of co-opera-
tion (upon which society is founded) is usually
attributed by the ignorant to philosophical anarchists,
while socialists never weary of pointing to the glorious
triumphs of co-operation, and claiming them for
socialism. Whenever a number of persons join
hands with the object of effecting a purpose other-
wise unattainable, we have what is tantamount to a
new force,- the force of combination; and the
persons so combining, regarded as a single body,
may be called by a name,-any name: a Union, an
Association, a Club, a Company, a Corporation, a
State. I do not say all these terms denote precisely
the same thing, but they all connote co-operation.
Let the State be now abolished for the purposes
of this discussion. How do we stand? We have
by no means abolished all the clubs and companies
in which citizens find themselves grouped and inter-
banded. There they all are, just as before,-nay,
there are a number of new ones, suddenly sprung up
out of the d/bris of the old State. Here are some
eighty men organised in the form of a cricket club.
They may not pitch the ball as they like, but only
in accordance with rigid laws. They elect a king or

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 zo6 LA W IN A FREE STA4TE CHAP.

captain, and they bind themselves to obey him in the

field. A member is told off to field at long-on,
although he may wish to field at point. He must
obey the despot.
Here is a ring of horsemen. They ride races.
They back their own horses. Disputes arise about
fouling, or perhaps the course is a curve and some
rider takes a short cut; or the weights of the riders
are unequal, and the heavier rider claims to equalise
the weights. All such matters are laid before a
committee, and rules are drawn up by which all the
members of the little racing club pledge themselves
to be bound. The club grows : other riding or
racing men join it or adopt its rules. At last, so
good are its laws that they are accepted by all the
racing fraternity in the island, and all racing disputes
are settled by the rules of the Jockey Club. And
even the judges of the land defer to them, and refer
points of racing law to the club.
Here again is a knot of whalers on the beach of
a stormy sea. Each trembles for the safety of his
own vessel. He would give something to be rid
of his uneasiness. All his eggs are in one basket.
He would willingly distribute them over many
baskets. He offers to take long odds that his own
vessel is lost. He repeats the offer till the long odds
cover the value of his ship and cargo, and perhaps
profits and time. " Now," says he, " I am comfort-
able: it is true, I forfeit a small percentage ; but if
my whole craft goes to the bottom I lose nothing."
He laughs and sings, while the others go croaking
about the sands, shaking their heads and looking
fearfully at the breakers. At last they all follow his

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 II THE LIMITS OF LIBERTY 1o7

example, and the net result is a Mutual Marine

Insurance Society. After a while they lay the odds,
not with their own members only, but with others;
and the risk being over-estimated (naturally at first),
they make large dividends. But now difficulties
arise. The captain of a whaler has thrown cargo
overboard in a heavy sea. The owner claims for
the loss. The company declines to pay, on the
ground that the loss was voluntarily caused by the
captain and not by the hand of God or the king's
enemies; and that there would be no limit to
jettison if the claim were allowed. Other members
meet with similar difficulties, and finally rules are
made which provide for all known contingencies.
And when any dispute arises, the chosen umpire
(whether it be a mutual friend, or an agora-full of
citizens, or a department of State, or any other per-
son or body of persons) refers to the common practice
and precedents so far as they apply. In other words,
the rules of the Insurance Society are the law of the
land. In spite of the State, this is so to-day to a
considerable extent; I may say in all matters which
have not been botched and cobbled by statute.
There is another class of club springing out of
the altruistic sentiment. An old lady takes com-
passion on a starving cat (no uncommon sight in the
West End of London after the Season). She puts a
saucer of milk and some liver on the door-step. She
is soon recognised as a benefactress, and the cats for
a mile round swarm to her threshold. The saucers
increase and multiply, and the liver is an item in her
butcher's bill. The strain is too great to be borne
single-handed. She issues a circular appeal, and she

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 io8 LAW IN A FREE STATE CHAP,

is surprised to find how many are willing to con-

tribute a fair share, although their sympathy shrivels
up before an unfair demand. They are willing to be
taxed pro rata, but they will not bear the burden of
other people's stinginess. " Let the poor cats bear
it rather," they say; " what is everybody's business
is nobody's business. It is very sad, but it cannot
be helped. If we keep one cat, hundreds will starve;
so what is the use? " But when once the club is
started, nobody feels the burden; the Cats' Home is
built and endowed, and all goes well. Hospitals,
infirmaries, alms-houses, orphanages, spring up all
round. At first they are reckless and indiscriminate,
and become the prey of impostors and able-bodied
vagrants. Then rules are framed; the Charity
Organisation Society co-ordinates and directs public
benevolence. And these rules of prudence and
economy are copied and adopted, in many respects,
by those who administer the State Poor-Law.
Then we have associations of persons who agree
on important points of science or politics. They
wish to make others think with them, in order that
society may be pleasanter and more congenial for
themselves. They would button-hole every man in
the street and argue the question out with him, but
the process is too lengthy and wearisome. They
club together, and form such institutions as the
British and Foreign Bible Society, which has spent
£7,000,000 in disseminating its literature all over
the world. We have the Cobden Club, which is
slowly and sadly dying of inconsistency after a career
of merited success. We have scientific societies of
all descriptions that never ask or expect a penny

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 n THE LIMITS OF LIBERTY 109

reward for all their outlay, beyond making other

people wiser and pleasanter neighbours.
Finally, we have societies banded together to do
battle against rivals on the principle of "Union is
strength." These clubs are defensive or aggressive.
The latter class includes all trading associations, the
object of which is to make profits by out-man-
ceuvring competitors. The former or defensive class
includes all the political societies formed for the
purpose of resisting the State,-the most aggressive
club in existence. Over one hundred of these "pro-
tection societies" of one sort and another were at
one time federated under the hegemony of a State
Resistance Union.
Now we have agreed, for the sake of argument,
that the State is to be abolished. What is the
result ? Here are Watch Committees formed in
the great towns to prevent and to ensure against
burglars, thieves, and like marauders. How they
are to be constituted I do not clearly know; neither
do I know the limits of their functions. Here,
again, is a Mutual Inquest Society to provide for
the examination of dead persons before burial or
cremation, in order to make murder as unprofitable
a business as possible. Here is a Vigilance Asso-
ciation sending out detectives for the purpose of
discovering and lynching the unsocial wretches who
knowingly travel in public conveyances with in-
fectious diseases on them. Here is a journal
supported by consumers for the advertisement of
adulterating dealers. And here again is a fili-
bustering company got up by adventurous traders,
of the old East India Company stamp, for the

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 Iro0 LAW IN A FREE STATE . CHAP.

purpose of carrying trade into foreign countries

with or without the consent of the invaded parties.
Here is a Statistical Society devising rules to make
it unpleasant for those who evade registration and
the census, and offering inducement to all who furnish
the required information. What sort of organisation
(if any) will be formed for the enforcement (not
necessarily by brute force) of contract? Or will
there be many such organisations dealing with
different classes of contract? Will there be a
Woman's League to boycott any man who has
abused the confidence of a woman and violated his
pledges? How will it sanction and try cases of
breach of promise?
Above all, how is this powerful company for the
defence of the country against foreign invaders to be
constituted ? And what safeguards will its members
provide against the tyranny of the officials? When
a Senator proposed to limit the standing army of
the United States to three thousand, George Wash-
ington agreed, on condition that the honourable
member would arrange that the country should
never be invaded by more than two thousand.
Frankenstein created a monster he could not lay.
This will be a nut for anarchists of the future to
crack.
And now, to revert to the Vigilance Society
formed for lynching persons who travel about in
public places with smallpox and scarlatina, what
rules will they make for their guidance? Suppose
they dub every unvaccinated person a "focus of
infection," shall we witness the establishment of a
Vigilance Society to punch the heads of the de-

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 II THE LIMITS OF LIBERTY III

tectives who punch the heads of the " foci of

infection "? Remember we have both those societies
in full working order to-day. One is called the
State, and the other is the Anti-Vaccination Society.
The questions which I should wish to ask are
chiefly these two:--(I) How far may voluntary
co-operators invade the liberty of others? And
what is to prevent such invasion under a system
of anarchy? (2) Is compulsory co-operation ever
desirable? And what form (if any) should such
compulsion take ?
The existing State is obviously only a con-
glomeration of several large societies which would
exist separately or collectively in its absence; if
the State were abolished, these associations would
necessarily spring up out of its ruins, just as the
nations of Europe sprang out of the ruins of the
Roman Empire. They would apparently lack the
power of compulsion. No one would be compelled
to join against his will. Take the ordinary case of
a gaslit street. Would a voluntary gas committee
be willing to light the street without somehow taxing
all the dwellers in the street ? If yes, then there is
inequity. The generous and public-spirited pay for
the stingy and mean. But if no, then how is the
taxing to be accomplished ? And where is the line
to be drawn? If you compel a man to pay for
lighting the street, when he swears he prefers it dark
(a householder may really prefer a dark street to a light
one, if he goes to bed at sunset, and wants the traffic
to be diverted into other streets to ensure his peace);
then you will compel him to subscribe to the Watch
Fund, though his house is burglar-proof; and to the

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 II2 LAW IN A FREE STATE CHAP.

fire-brigade, though his house is fire - proof; and

to the prisons as part of the plant and tools
of the Watch Committee; and, it may logically
be urged, to the churches and schools as part also
of such plant and tools for the prevention of certain
crimes.
Moreover, if you compel him to subscribe for
the gas in the street, you must make him pay
his share of the street itself-paving, repairing, and
cleansing, and if the street, then the highway; and
if the highway, then the railway, and the canal, and
the bridges, and even the harbours and lighthouses,
and other common apparatus of transport and
locomotion.
If we are not going to compel a citizen to sub-
scribe to common benefits, even though he necessarily
shares them, how are we to remove the injustice of
allowing one man to enjoy what another has earned?
Some writers 1 are of opinion that this and all similar
questions can be settled by an appeal to justice, and
that the justice of any particular case can be ex-
tracted by a dozen jurymen. Now, in all sincerity,
I have no conception of what is commonly meant
by justice. Happiness I know; welfare I know;
expediency I know. They all mean the same thing.
We can call it pleasure, or felicity, or by any other
name. We never ask why it is better to be happy
than unhappy. We understand pleasure and pain
by faculties which underlie reason itself. A child
knows the meaning of stomach-ache long before it
knows the meaning of stomach. And no philo-
I See Mr. Spence's contribution to the Synposium; on the Land
Question, p. 42, 1890 (T. Fisher Unwin).

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 II THE LIMITS OF LIBERTY IT3

sopher knows it better. Expediency, in the sense

in which I use the term, has a meaning. Justice
has no meaning at all : that is to say, it conveys
no definite meaning to the general understanding.
Here is a flat-race about to be run between a strong,
healthy boy of sixteen and a delicate lad of twelve.
What says Justice? Are we to handicap them, or
are we not? It is a very simple question, and the
absolutist ought to furnish us with a simple answer.
If he says yes, he will have half the world down
upon him as a socialist leveller. If he says no, he
will have the other half down upon him as a brutal
individualist. But he must choose. Lower yet;-
even supposing that Justice has a distinct connotation,
and furthermore that it connotes something sublime,
even then, why should I conform to its dictates?
Because it is a virtue? Nonsense: because it is
expedient. Why should I tell the truth? There is
no reason why, except that it is expedient for me,
as I know from experience. There is no baser form
of lying than fly-fishing. Is it wrong? No. Why
not ? Because I do not ask the fishes to trust me in
the future. That is why.
I have said that Justice is too vague a guide to
the solution of political questions. We are told that,
when the question is asked, What is fair and just
between man and man? "you can get a jury of
twelve men to give a unanimous verdict." And
" that by reasoning from what is fair between man
and man we can pass to what is fair between one
man and several, and from several to all: and that
this method, which is the method of all science, of
reasoning from the particular to the general, from
I

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 I14 LAW IN A FREE STATE CHAP.

the simple to the complex, does give us reliable

information as to what should be law." 1
The flaw in this chain of reasoning is in the
assumption that because you can get a unanimous
verdict in the majority of cases as to what is fair
between man and man, therefore you can get a
true verdict. Twelve sheep will unanimously jump
through a gap in the hedge round an old quarry
if one of them will but give the lead. I do not
believe that a jury of twelve philosophers, or of
twelve members of Parliament, or of twelve judges
of the realm, or of twelve anybodies, could decide
correctly what is just and right between man and
man in any one of a thousand cases which could be
stated without deviating from the path of everyday
life. And the more they knew, the less likely they
would be to agree.
The same writer thinks the intelligence of the
" ordinary elector" quite sufficient to tell him that
" it would be unjust to take from a man by force
and without compensation a farm which he had
legally and honestly bought." Well, this is not a
very complex case: and yet I doubt whether the
" ordinary elector " could be trusted even here to see
justice, and to do it. This recipe for making good
laws forcibly reminds me of an old recipe for catch-
ing a bird: "Put a pinch of salt on its tail." I
remember trying it,-but that is some years ago.
I grant that, having once got at a sound method of
deciding what is fair and right between man and
man, you can easily proceed from the particular
to the general, and so learn how to make good
1 Symposium on the Land Question.

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 n THE LIMITS OF LIBERTY 115

laws. Yes, but first catch your hare. First show

us what is fair between man and man. That is the
whole problem. That is my difficulty, and it is not
removed by telling me you can get a dozen fellows
together who will agree about the answer.
Take a very simple case. X and Y appoint me
arbitrator in their dispute. There is no allegation
of malfeasance on either side. Both ask for justice,
and are ready to accord it, but they cannot agree as
to what is justice in the case. It appears that X
bought a pony bond fide and paid for it. That is
admitted. It further appears that the pony had
been stolen the night before out of Y's paddock. It
is hard on Y to lose his pony-it is hard on X to lose
his money. To divide the loss is hard on both.
Now how can Justice tell me the true solution ? I
must fall back on expediency. As a rule, I argue,
the title to goods should be valid only when derived
from the owner. But surely an exception should
be made in the case of a bond fide purchaser: "for it
is expedient that the buyer, by taking proper pre-
cautions, may at all events be secure of his purchase;
otherwise all commerce between man and man would
soon be at an end." These are the words of Sir
William Blackstone, but they are good enough for
me. Therefore (and not for any reason based on
justice) I should feel disposed to decide that the
pony should remain the property of the purchaser.
But on further reflection, I should bethink me how
extremely easy it would be for two men to conspire
together to steal a pony under such a law. One of
them leads the pony out of the field by night, sells
it to his colleague, gives him a receipt for the money,

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 116 LA W IN A FREE STA TE CHAP.

and disappears. Is this farce to destroy the owner's

title? What am I to do? Justice entirely deserts
me. I reflect again. There seems to be something
" fishy " about a night sale in a lane. Now had the
purchaser bought the pony at some public place at
a reasonable hour when people are about, there
would have been less ground for suspicion of foul
play. How would it be then, I ask myself, to lay
down the general rule that when the deal takes
place at any regular public place and during
specified hours, the purchaser's title should hold
good; but when the deal takes place under other
circumstances, the original owner's title should
stand? This would probably be something like
the outcome of the reflections of a simple un-
tutored mind actuated by common sense. But it
is also very like the law of England.
If I appeal for guidance to the wise, the best
they can do is to refer me to the writings of the
lawyers, where I shall find out all about market
overt and a good many other " wise regulations by
which the law hath secured the right of the pro-
prietor of personal chattels from being divested, so
far as is consistent with that other necessary policy
that bond fide purchasers in a fair, open, and regular
manner should not be afterwards put to difficulties
by reason of the previous knavery of the seller." '
But we have not got to the bottom of the problem
yet. There are chattels and chattels. Tables have
legs, but cannot walk: horses can. Thereby hangs
a tale. Consequently when I think I have mastered
all these " wise regulations," I am suddenly knocked
1 Blackstone.

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 II THE LIMITS OF LIBERTY 117

off my stool of superior knowledge by a couple of

elderly statutes-2 P. & M. c. 7 and 3 1 Eliz. c. 12
-whereby special provision is made for horse-dealing.
It is enacted that-
The horses shall be openly exposed in the time of such fair
or market for one whole hour together, between ten in the
morning and sunset, in the public place used for such sales,
and not in any private yard or stable; and shall afterwards be
brought by both the vendor and vendee to the book-keeper of
such fair or market, who shall enter down the price, colour,
and marks of such horse, with the name, additions, and abode
of such vendee and vendor, the latter being properly attested.
And even such sale shall not take away the property of the
owner, if within six months after the horse is stolen, he put in
his claim before some magistrate where the horse shall be
found; and within forty days more prove such his property, by
the oath of two witnesses, and tender to the person in posses-
sion such price as he bond fide paid for the horse in market
overt. And in case any of the points before mentioned be not
observed, such sale is to be utterly void, and the owner shall
not lose his property; and at any distance of time may seize
or bring an action for his horse wherever he happens to find
him.

And further refinements on these precautions

have since been made.
I do not say that we need approve of all these
safeguards and rules, but I do say that they testify
to a perception by the Legislature of the complexity
and difficulty of the question. And furthermore, if
anybody offers to decide such cases off-hand on
general principles, and at the same time to do justice,
he must be a bold man. For my part, the more I
look into the law as it is, the more do I see in it of
wisdom (not unadulterated of course) drawn from
experience. The little obstacles which have from

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 x18 LAW IN A FREE STATE CHAP.

time to time shadowed themselves upon my mind as

difficulties in the way of applying clear and unquali-
fied general rules to the solution of all social disputes,
are brought into fuller light, and I perceive more
and more clearly how hopeless, nay, how impossible
it is to deduce the laws of social morality from
broad general principles; and how absolutely neces-
sary it is to obtain them by induction from the
myriads of actual cases which the race has had to
solve somehow or other during the last half-dozen
millenniums.
I regard law-making as by no means an easy
task when based on expediency. On the contrary, I
think it difficult, but practicable: whereas to deduce
good laws from the principle of Justice is impossible.
One word more about Justice. I have said that
to most people the term is absolutely meaningless.
To those who have occasional glimmerings, it con-
veys two distinct and even opposed meanings-
sometimes one, sometimes the other. And it has a
third meaning, which is definite enough, but merely
negative; in which sense it connotes the elimination
of partiality. I fail to see how any political question
can be settled by that. That the State should be
no respecter of persons, that it should decide any
given case in precisely the same way, whether the
litigants happen to be A and B or C and D, may be
a valuable truth, without casting a ray of light on
the right and wrong of the question.
In this negative sense of the term I will venture
to define Justice as the Algebra of Judgments. It
deals in terms not of Dick, Tom, and Harry, but of
X, Y, and Z. Regarded in this light, Justice may

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 IT THE LIMITS OF LIBERTY Ir g

properly be described as blind, a quality which cer-

tainly cannot be predicated of that Justice which
carefully examines the competitors in life's arena and
handicaps them accordingly. Consider the countless
questions which Impartiality is incompetent to answer.
Ought a father to be compelled to contribute to the
maintenance of his natural children ? The only answer
we can get from Impartiality is that, if one man is
forced, all men should be forced. Should a man be
permitted to sell himself into slavery for life ? Should
the creditors of an insolvent rank in order of priority,
or pro rata ? Suppose a notorious card-sharper and
a gentleman of unblemished character are publicly
accused, untruly accused, of conspiring together to
cheat, should they obtain equal damages for the libel ?
To all these questions Impartiality is dumb, or
replies oracularly, " What is right for one is right for
all." And that throws no light on the subject.
In short, it is easy to underrate the difficulty of
finding out what is fair and right between man and
man. To me it seems that this is the whole of the
difficulty. And although I think that this can best
be overcome by an appeal to expediency, I must not
be understood as contending that each particular
case must be decided on its merits. We must be
guided, as we are guided in our own personal conduct,
by middle principles which have stood the test of
time and experience. Do not steal. Do not lie.
It is by the gradual discovery of similar middle
principles by induction from the disputes of every-
day life that we shall some day find ourselves in
possession of true and useful guides through the
labyrinth of legislation and politics.

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 I1o0 LAW IN A FREE STATE CHAP.

To sum up; I have tried to show that the right

course for the State to adopt towards its own citizens
-Group Morals-cannot be discovered by deduction
from any abstract principles, such as Justice or
Liberty; any more than individual morals can be
deduced from some underlying law of Virtue. The
rules of conduct by which States should be guided
are intelligible canons based on centuries of experi-
ence, very much like the rules by which our own
private lives are guided ; not absolutely trustworthy,
but better than no general rules at all. They are
usually described as the laws of the land, and in so
far as the expressed laws really do reflect the
nomological laws actually at work, these laws stand
in the same relation to the State as private resolutions
stand to the individual citizen. In law, as in all
other inductive sciences, we proceed from the par-
ticular to the general. The judge decides a new
case on its merits, the decision serves as a guide
when a similar case arises; the ratio decidendi is
extracted, and we have a general statement; these
generalisations are themselves brought under higher
generalisations by jurists and judges, and perhaps
Parliament; and finally we find ourselves in the
presence of laws or State morals as general as those
cardinal virtues by which most of us try to arrange
our lives. That the generalisations made by the
Legislature are usually false generalisations is a pro-
position which, I submit, is capable of proof and
of explanation. It is wise to obey the laws, firstly,
because otherwise we come into conflict with a
stronger power than ourselves; secondly, because in
the great majority of cases it is our enlightened

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 II1 THE LIMITS OF LIBERTY I2I

interest to do so; the welfare of individual citizens

coinciding as a rule with the welfare of the race,
and tending to do so more and more. History
shows that (probably as a means to that end ; though
of this we cannot speak positively) the State's sphere
of action is a diminishing one-that as it moves
forward it tends to shed function after function, until
only a few are left. Whether these duties will pass
into the hands of voluntary corporations at any time
is a question of the greatest interest; but it is ob-
servable that the latest functions remaining to the
State are those which are most rigorously performed.
And this seems to point to the future identity of the
State (in the sense of the sovereign power) with the
widest voluntary association of citizens-an associa-
tion based on some common interest of the widest
extent. Thus it is probable that even now an
enormous majority of persons in this country would
voluntarily forgo the right of killing or robbing
their neighbours on condition of being guaranteed
against similar treatment by others. If so, the
voluntary society which Anarchy would evolve, and
the State which ancient Socialism has evolved, tend
in the long-run to be one and the same thing. The
State or Voluntary Association, by whatever name
known, will cease to compel unwilling individuals to
join its ranks, because coercion will be no longer
required.

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