The greatest minds now insist an individual will more freely act, not only for the furtherance of personal interests, but also for collective interests, without being constrained thereto by an external power. Whenever room is to be made, they say, for the advance of society, public authority must retire within its narrowest jurisdiction; yielding, because of its impracticability, all control over concerns purely personal. “Who remembers having done anything, or having refrained from doing anything, on account of the statutes? If we could realize how little civil law contributes to the good conduct and well-being of society, our interest in legislators would be greatly lessened. Of the millions upon millions of acts of kindness and justice which go to make up civilized life, I take it that nine in ten would not be performed at all, if they were required by law.
John Stuart Mill has clearly defined the limit of individual “sovereignty”—as it is termed—and where the authority of society should begin. “Each will receive its proper share, if each has that which more particularly concerns it. To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society.
“The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating their constituted rights. The offender may then be justly punished by opinion, though not by law. As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes an open one. But there is no room for entertaining any such question, when a person’s conduct affects the interest of no person besides himself, or need not affect them unless they like, all the persons concerned being of full age, and with the ordinary amount of understanding. In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.”
Everybody agrees with this proposition, in the abstract. At this period of time, nobody would dispute “personal liberty,” as a “glittering generality.” People are too smart for that. It would be impolite and unfashionable. They would agree with you, perhaps, that “personal liberty” is the source of all progress, the lever of all conquests, the inspiration of all achievements. “The great, vital, pivotal fact of human life; all progress and all happiness begin and end in personal freedom.” O yes, they will readily agree with the rhetoric involved. “The prize, the precious jewel of the ages, is personal liberty. It has no equivalents. Untold wealth, a mine of diamonds, a palace, are baubles by the side of personal liberty. We recognize the supreme importance of this principle. We are willing that all men should be free—if they will only do what is best for them. We rejoice in the utmost liberty of opinion and action—if people will only do and say what is right.”
Thus is “freedom” trespassed upon, under pretence that is for the good of the man or men whose rights are violated. Such was probably the pretext for every tyrannical invasion of popular rights known to history. Thus was it quaintly put by Dio Lewis: “The Inquisition believed in the perfect liberty of all men to be Catholics, but if they caught a man with other notions about salvation, they put a thumb-screw on him. Our Puritan fathers believed in personal freedom as no other men ever did. They left their homes, crossed a stormy ocean, and braved a thousand dangers, that they might be free to think and say what they pleased. And they were perfectly willing that all who came along might think and say what they pleased, unless, as sometimes unfortunately happened, the other men said and thought things which conflicted with the things which the fathers thought and said. They sometimes came across a Quaker, whose views did not seem quite the thing, and they hung him. Our New England fathers believed in ‘religious liberty.’ Indeed, ‘religious liberty’ was their constant boast; but if a man did not believe in hell, they would not let him testify in court.... But our fathers were always very kind about it; they said he was at liberty, perfect liberty, at any time to believe in hell, and then he might swear a blue streak.”
What is really meant by this definition of “personal liberty” is the absolute right of every individual that every other individual shall act, in every respect, exactly as he ought; “that whosoever fails thereof, in the smallest particular, violates my social right and entitles me to demand of the legislature the removal of the grievance.” “This doctrine,” continued Mill, “ascribes to all mankind a vested interest in each other’s moral, intellectual, and physical perfection, to be defined by each claimant, according to his own standard.”
Of this class of men Dr. Lewis well said: “They consider themselves born to control other men. They are ever inquiring, ‘What ought this man to do?’ and if that man refuses to do it, ‘How can we compel him?’ They proceed thus: ‘Resolved, That the righteous should govern the world. Resolved, That we are the righteous.’”
In what language can I fitly designate a principle of action so impertinent and presumptious? Who can deny the moral “liberty” of his fellow creature, as an abstract proposition? Is not the moral equality, or independence of man one of his essential rights? Neither one, nor any number of persons, is warranted in saying to another of mature years, what the latter shall, or shall not do with his life for his own benefit. “He is most deeply interested in his own well-being; the interest which another person can have in it is trifling, compared with that which he himself has.” It is time for society to distinguish, sharply, between the province of morality and that of legislation. With the same end in view, perhaps, yet they should differ widely in extent. Admit that morals and the law have the same center, they have not the same circumference. There may be a moral guide to the conduct of an individual, through all the details of life, through all the relationships of society; but legislation cannot be this, and if it could, it ought not to exercise a continued and direct interference with the conduct of men. There are many acts useful to the community which the legislator ought never to command; so are there many hurtful acts, which he ought not to forbid. There is certainly a broad distinction between moral and legal rights. For instance, “a man has no moral right to hate his wife, but he has a perfect legal right to hate her. A man has no moral right to foreclose a mortgage on a sick widow’s home, and turn her and her children out in the snow, but he has a perfect legal right to do it. A man has no moral right to make a glutton of himself, destroy his usefulness, and thus throw his wife and children on the town, but he has a perfect legal right to do it.” A man has no moral right to drink rum, but he has a perfect legal right to do so. What actions, then, may be legally punished as offenses? “What a question,” I hear some one exclaim; “are not all men agreed upon it? Do you ask us to prove an acknowledged truth.” I answer in words of the great Jeremy Bentham: “Be it so. But on what is founded that agreement? Demand of each his reasons. You will find a strange diversity of interest and principles. You will find it not only among the people, but among philosophers.... The agreement which you see is founded only on prejudices; and these prejudices vary, according to the times and places, according to opinions and customs.... People have always said that such an action is an offense. Such is the guide of the multitude, and even of the legislator. But if usage has made innocent actions crimes; if it makes venial offenses appear heavy, and heavy offences light; if it has varied everywhere, it is clear that we must subject it to some rule.”
Vices are not rightly punishable by law. They are amenable to education only. Should A. assist B. to indulge in a vice, and A. uses no fraud or coercion, and B. is compos mentis, A. is not guilty of a crime, in the proper sense. Suppose A. were a cook, who compounds for B. rich and delicious dishes, and of which B. partakes to such an extent that he sickens and dies, A. is not guilty of a crime. Neither is B.’s indulgence in the strong food or strong drink a crime punishable by law, only a vice amenable to discretion and judgment.
Correctly considered, then, a crime is an act which one man, with “malice prepense,” commits upon the person or property of another, without that other’s consent. Crime may be subject to law. A vice, on the other hand, is any act or passion in which a person may indulge himself: malice, hypocrisy, pride, envy, hatred, avarice, ambition, profanity, falsehood, indolence, cowardice, drunkenness, gluttony, tyranny, fanaticism, extravagance, etc., etc. Unless this distinction be recognized by the law, there can be no such thing as individual right, liberty or property, “no such thing as the right of one man to the control of his own person and property, and the corresponding and co-equal right of another man to the control of his own person and property.”