[12.] Fortnightly Review, November 1883, pp. 619–20.
[13.] Lactant, De M. Persecut., cc. 7, 23.
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[14.] Taine, L’Ancien Régime, pp. 337–8 (in the English Translation).
[15.] Report of Commissioners for Inquiry into the Administration and Practical Operation of the Poor Laws, p. 37. 20 February 1834.
THE SINS OF LEGISLATORS
Be it or be it not true that Man is shapen in iniquity and conceived in sin, it is unquestionably true that Government is begotten of aggression and by aggression. In small undeveloped societies where for ages complete peace has continued, there exists nothing like what we call Government: no coercive agency, but mere honorary headship, if any headship at all. In these exceptional communities, unaggressive and from special causes unaggressed upon, there is so little deviation from the virtues of truthfulness, honesty, justice, and generosity, that nothing beyond an 1
occasional expression of public opinion by informally-assembled elders is needful. Conversely, we find proofs that, at first recognized but temporarily during leadership in war, the authority of a chief is permanently established by continuity of war; and grows strong where successful war ends in subjection of neighbouring tribes. And thence onwards, examples furnished by all races put beyond doubt the truth, that the coercive power of the chief, developing into king, and king of kings (a frequent title in the ancient East), becomes great in proportion as conquest becomes 2
habitual and the union of subdued nations extensive. Comparisons disclose a further truth which should be ever present to us—the truth that the aggressiveness of the ruling power inside a society increases with its aggressiveness outside the society. As, to make an efficient army, the soldiers must be subordinate to their commander; so, to make an efficient fighting community, must the citizens be subordinate to their government. They must furnish recruits to the extent demanded, and yield up whatever property is required.
An obvious implication is that political ethics, originally identical with the ethics of war, must long remain akin to them; and can diverge from them only as warlike activities and preparations become less. Current evidence shows this. At present on the Continent, the citizen is free only when his services as a soldier are not demanded; and during the rest of his life he is largely enslaved in supporting the military organization. Even among ourselves a serious war would, by the necessitated conscription, suspend the liberties of large numbers and trench on the liberties of the rest, by taking from them through taxes whatever supplies were needed—that is, forcing them to labour so many days more for the State. Inevitably the established code of conduct in the dealings of Governments with citizens, must be allied to their code of conduct in their dealings with one another.
I am not, under the title of this article, about to treat of the trespassers and the revenges for trespasses, accounts of which mainly constitute history; nor to trace the internal inequities which have ever accompanied the external inequities. I do not propose here to catalogue the crimes of irresponsible legislators; beginning with that of King Khufu, the stones of whose vast tomb were laid in the bloody sweat of a hundred thousand slaves toiling through long years under the lash; going on to those committed by conquerors, Egyptian, Assyrian, Persian, Macedonian, Roman, and the rest; and ending with those of Napoleon, whose ambition to set his foot on the neck of 3
the civilized world, cost not less than two million lives. Nor do I propose here to enumerate http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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those sins of responsible legislators seen in the long list of laws made in the interests of dominant classes—a list coming down in our own country to those under which there were long maintained slavery and the slave-trade, torturing nearly 40,000 negroes annually by close packing during a tropical voyage, and killing a large percentage of them, and ending with the corn-laws, by which, 4
says Sir Erskine May, “to ensure high rents, it had been decreed that multitudes should hunger.”
Not, indeed, that a presentation of the conspicuous misdeeds of legislators, responsible and irresponsible, would be useless. It would have several uses—one of them relevant to the truth above pointed out. Such a presentation would make clear how that identity of political ethics with military ethics which necessarily exists during primitive times, when the army is simply the mobilized society and the society is the quiescent army, continues through long stages, and even now affects in great degrees our law-proceedings and our daily lives. Having, for instance, shown that in numerous savage tribes the judicial function of the chief does not exist, or is nominal, and that very generally during early stages of European civilization, each man had to defend himself and rectify his private wrongs as best he might—having shown that in mediaeval times the right of private war among members of the military order was brought to an end, not because the head ruler thought it his duty to arbitrate, but because private wars interfered with the efficiency of his army in public wars—having shown that the administration of justice displayed through subsequent ages a large amount of its primitive nature, in trial by battle carried on before the king or his deputy as umpire, and which, among ourselves, continued nominally to be an alternative form of trial down to 1819; it might then be pointed out that even now there survives trial by battle under another form: counsel being the champions and purses the weapons. In civil cases, the ruling agency cares scarcely more than of old about rectifying the wrongs of the injured; but, practically, its deputy does little less than enforce the rules of the fight: the result being less a question of equity than a question of pecuniary ability and forensic skill. Nay, so little concern for the administration of justice is shown by the ruling agency, that when, by legal conflict carried on in the presence of its deputy, the combatants have been pecuniarily bled even to the extent of producing prostration, and when, an appeal being made by one of them, the decision is reversed, the beaten combatant is made to pay for the blunders of the deputy, or of a preceding deputy; and not unfrequently the wronged man, who sought protection or restitution, is taken out of court pecuniarily dead.
Adequately done, such a portrayal of governmental misdeeds of commission and omission, proving that the partially-surviving code of ethics arising in, and proper to, a state of war, still vitiates governmental action, might greatly moderate the hopes of those who are anxious to extend governmental control. After observing that along with the still-manifest traits of that primitive political structure which chronic militancy produces, there goes a still-manifest survival of its primitive principles; the reformer and the philanthropist might be less sanguine in their anticipations of good from its all-pervading agency, and might be more inclined to trust agencies of a nongovernmental kind.
But leaving out the greater part of the large topic comprehended under the title of this article, I propose here to deal only with a comparatively small remaining part—those sins of legislators which are not generated by their personal ambitions or class interests, but result from lack of the study by which they are morally bound to prepare themselves.
A druggist’s assistant who, after listening to the description of pains which he mistakes for those http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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of colic, but which are really caused by inflammation of the caecum, prescribes a sharp purgative and kills the patient, is found guilty of manslaughter. He is not allowed to excuse himself on the ground that he did not intend harm but hoped for good. The plea that he simply made a mistake in his diagnosis is not entertained. He is told that he had no right to risk disastrous consequences by meddling in a matter concerning which his knowledge was so inadequate. The fact that he was ignorant how great was his ignorance is not accepted in bar of judgement. It is tacitly assumed that the experience common to all should have taught him that even the skilled, and much more the unskilled, make mistakes in the identification of disorders and in the appropriate treatment; and that having disregarded the warning derivable from common experience, he was answerable for the consequences.
We measure the responsibilities of legislators for mischiefs they may do, in a much more lenient fashion. In most cases, so far from thinking of them as deserving punishment for causing disasters by laws ignorantly enacted, we scarcely think of them as deserving reprobation. It is held that common experience should have taught the druggist’s assistant, untrained as he is, not to interfere; but it is not held that common experience should have taught the legislator not to interfere till he has trained himself. Though multitudinous facts are before him in the recorded legislation of our own country and of other countries, which should impress on him the immense evils caused by wrong treatment, he is not condemned for disregarding these warnings against rash meddling. Contrariwise, it is thought meritorious in him when—perhaps lately from college, perhaps fresh from keeping a pack of hounds which made him popular in his county, perhaps emerging from a provincial town where he acquired a fortune, perhaps rising from the bar at which he has gained a name as an advocate—he enters Parliament; and forthwith, in quite a light-hearted way, begins to aid or hinder this or that means of operating on the body politic. In this case there is no occasion even to make for him the excuse that he does not know how little he knows; for the public at large agrees with him in thinking it needless that he should know anything more than what the debates on the proposed measures tell him.
And yet the mischiefs wrought by uninstructed lawmaking, enormous in their amount as compared with those caused by uninstructed medical treatment, are conspicuous to all who do but glance over its history. The reader must pardon me while I recall a few familiar instances.
Century after century, statesmen went on enacting usury laws which made worse the condition of 5
the debtor—raising the rate of interest “from five to six when intending to reduce it to four,” as under Louis XV; and indirectly producing undreamt of evils of many kinds, such as preventing the reproductive use of spare capital, and “burdening the small proprietors with a multitude of 6
perpetual services.” So too, the endeavours which in England continued through five hundred years to stop forestalling, and which in France, as Arthur Young witnessed, prevented any one 7
from buying “more than two bushels of wheat at market,” went on generation after generation increasing the miseries and mortality due to dearth; for, as everybody now knows, the wholesale 8
dealer, who was in the statue “De Pistoribus” vituperated as “an open oppressor of poor people,”
is simply one whose function it is to equalize the supply of a commodity by checking unduly rapid consumption. Of kindred nature was the measure which, in 1315, to diminish the pressure of famine, prescribed the prices of foods, but which was hastily repealed after it had caused entire disappearance of various foods from the markets; and also such measures, more continuously 9
operating, as those which settled by magisterial order “the reasonable gains” of victuallers. Of like spirit and followed by allied mischiefs have been the many endeavours to fix wages, which began with the Statute of Labourers under Edward II, and ceased only sixty years ago; when, http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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having long galvanized in Spitalfields a decaying industry and fostered there a miserable population, Lords and Commons finally gave up fixing silk-weavers’ earnings by the decisions of magistrates.
Here I imagine an impatient interruption. “We know all that; the story is stale. The mischiefs of interfering with trade have been dinned in our ears till we are weary; and no one needs to be taught the lesson afresh.” My first reply is that by the great majority the lesson was never properly learnt at all, and that many of those who did learn it have forgotten it. For just the same pleas which of old were put in for these dictations, are again put in. In the statute 35 of Edward II, which aimed to keep down the price of herrings (but was soon repealed because it raised the price), it was complained that people “coming to the fair … do bargain for herring, and every of them, by malice and envy, increase upon other, and, if one proffer forty shilling, another will proffer ten shillings more, and the third sixty shillings, and so every one surmounteth other in the 10
bargain.”
And now “the higgling of the market,” here condemned and ascribed “to malice and
envy,” is being again condemned. The evils of competition have all along been the stock cry of the Socialists; and the council of the Democratic Federation denounces the carrying on of exchange under “the control of individual and greed profit.” My second reply is that interferences with the law of supply and demand, which a generation ago were admitted to be habitually mischievous, are now being daily made by Acts of Parliament in new fields; and that, as I shall presently show, they are in these new fields increasing the evils to be cured and producing fresh ones, as of old they did in fields no longer intruded upon.
Returning from this parenthesis, I go on to explain that the above Acts are named to remind the reader that uninstructed legislators have in past times continually increased human suffering in their endeavours to mitigate it; and I have now to add that if these evils, shown to be legislatively intensified or produced, be multiplied by ten or more, a conception will be formed of the aggregate evils caused by law-making unguided by social science. In a paper read to the Statistical Society in May 1873, Mr. Janson, vice-president of the Law Society, stated that from the Statute of Merton (20 Henry III) to the end of 1872, there had been passed 18,110 public Acts; of which he estimated that four-fifths had been wholly or partially repealed. He also stated that the number of public Acts repealed wholly or in part, or amended, during the three years 1870-71-72 had been 3,532, of which 2,579 had been totally repealed. To see whether this state of repeal has continued, I have referred to the annually-issued volumes of “The Public General Statutes” for the last three sessions. Saying nothing of the numerous amended Acts, the result is that in the last three sessions there have been totally repealed, separately or in groups, 650 Acts, belonging to the present reign, besides many of preceding reigns. This, of course, is greatly above the average rate; for there has of late been an active purgation of the statute-book. But making every allowance, we must infer that within our own times, repeals have mounted some distance into the thousands. Doubtless a number of them have been of laws that were obsolete; others have been demanded by changes of circumstances (though seeing how many of them are of quite recent Acts, this has not been a large cause); others simply because they were inoperative; and others have been consequent on the consolidations of numerous Acts into single Acts. But unquestionably in multitudinous cases, repeals came because the Acts had proved injurious. We talk glibly of such changes—we think of cancelled legislation with indifference. We forget that before laws are abolished they have generally been inflicting evils more or less serious; some for a few years, some for tens of years, some for centuries. Change your vague idea of a bad law into a definite idea of it as an agency operating on people’s lives, and you see http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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that it means so much of pain, so much of illness, so much of mortality. A vicious form of legal procedure, for example, either enacted or tolerated, entails on suitors, costs, or delays, or defeats. What do these imply? Loss of money, often ill-spared; great and prolonged anxiety; frequently consequent bad health; unhappiness of family and dependents; children stinted in food and clothing—all of them miseries which bring after them multiplied remoter miseries. Add to which the far more numerous cases of those who, lacking the means or the courage to enter on lawsuits, and therefore submitting to frauds, are impoverished; and have similarly to bear the pains of body and mind which ensue. Even to say that a law has been simply a hindrance, is to say that it has caused needless loss of time, extra trouble, and additional worry; and among over-burdened people extra trouble and worry imply, here and there, physical and mental prostrations, with their entailed direct and indirect sufferings. Seeing, then, that bad legislation means injury to men’s lives, judge what must be the total amount of mental distress, physical pain, and raised mortality, which these thousands of repealed Acts of Parliament represent! Fully to bring home the truth that law-making unguided by adequate knowledge brings enormous evils, let me take an instance which a question of the day recalls.
Already I have hinted that interferences with the connexion between supply and demand, given up in certain fields after immense mischiefs had been done during many centuries, are now taking place in other fields. This connexion is supposed to hold only where it has been proved to hold by the evils of disregarding it: so feeble is men’s belief in it. There appears no suspicion that in cases where it seems to fail, natural causation has been traversed by artificial hindrances. And yet in the case to which I now refer—that of the supply of houses for the poor—it needs but to ask what laws have been doing for a long time past, to see that the terrible evils complained of are mostly law-made.
A generation ago discussion was taking place concerning the inadequacy and badness of industrial dwellings, and I had occasion to deal with the question. Here is a passage then written: An architect and surveyor described it [the Building Act] as having worked after the following manner. In those districts of London consisting of inferior houses built in that unsubstantial fashion which the new Building Act was to mend, there obtains an average rent, sufficiently remunerative to landlords whose houses were run up
economically before the New Building Act passed. This existing average rent fixes the rent that must be charged in these districts for new houses of the same
accommodation—that is the same number of rooms, for the people they are built for do not appreciate the extra safety of living within walls strengthened with hoop-iron bond. Now it turns out upon trial, that houses built in accordance with the present regulations, and let at this established rate, bring in nothing like a reasonable return.
Builders have consequently confined themselves to erecting houses in better districts (where the possibility of a profitable competition with pre-existing houses shows that those pre-existing houses were tolerably substantial), and have ceased to erect dwellings for the masses, except in the suburbs where no pressing sanitary evils exist. Meanwhile, in the inferior districts above described, has resulted an increase of overcrowding—half-a-dozen families in a house, a score lodgers to a room. Nay,
more than this has resulted. That state of miserable dilapidation into which these abodes of the poor are allowed to fall, is due to the absence of competition from new http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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houses. Landlords do not find their tenants tempted away by the offer of better accommodation. Repairs, being unnecessary for securing the largest amount of
profit, are not made. … In fact for a large percentage of the very horrors which our sanitary agitators are trying to cure by law, we have to thank previous agitators of the same school!—Social Statics, p. 384 (edition of 1851).
These were not the only law-made causes of such evils. As shown in the following further passage, sundry others were recognized:
Writing before the repeal of the brick duty, the Builder says: “It is supposed that one-fourth of the cost of a dwelling which lets for 2S. 6d. or 3s. a week is caused by the expense of the title-deeds and the tax on wood and bricks used in its
construction. Of course, the owner of such property must be remunerated, and he therefore charges 7½d. or 9d. a week to cover these burdens.” Mr. C. Gatliff,
secretary to the Society for Improving the Dwellings of the Working Classes,
describing the effect of the window-tax, says: “They are now paying upon their
institution in St. Pancras the sum of £162 16s. in window-duties, or 1 per cent per annum upon the original outlay. The average rental paid by the Society’s tenants is 5s. 6d. per week, and the window-duty deducts from this 7¼d. per week.”—The
Times, 31 January 1850.—Social Statics, p. 385 (edition of 1851).
Neither is this all the evidence which the press of those days afforded. There was published in The Times of 7 December 1850 (too late to be used in the above-named work, which I issued in the last week of 1850), a letter dated from the Reform Club, and signed “Architect,” which contained the following passages:
Lord Kinnaird recommends in your paper of yesterday the construction of model
lodging-houses by throwing two or three houses into one.
Allow me to suggest to his Lordship, and to his friend Lord Ashley to whom he refers, that if,—
1. The window tax were repealed,
2. The building Act repealed (excepting the clauses enacting that party
and external walls shall be fireproof),
3. The timber duties either equalized or repealed, and,
4. An Act passed to facilitate the transfer of property.
There would be no more necessity for model lodging-houses than there is for model ships, model cotton-mills, or model steam-engines.
The first limits the poor man’s house to seven windows,
The second limits the size of the poor man’s house to 25 feet by 18 (about the size of a gentleman’s dining-room), into which space the builder has to cram a staircase, an entrance passage, a parlour, and a kitchen (walls and partitions included).
The third induces the builder to erect the poor man’s house of timber unfit for http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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building purposes, the duty on the good material (Baltic) being fifteen times more than the duty on the bad or injurious article (Canadian). The Government, even, exclude the latter from all their contracts.
The fourth would have considerable influence upon the present miserable state of the dwellings of the poor. Small freeholds might then be transferred as easily as leaseholds. The effect of building leases has been a direct inducement to bad
building.
To guard against mis-statements or over-statements, I have taken the precaution to consult a large East-end builder and contractor of forty years’ experience, Mr. C. Forrest, Museum Works, 17 Victoria Park Square, Bethnal Green, who, being churchwarden, member of the vestry, and of the board of guardians, adds extensive knowledge of local public affairs to his extensive knowledge of the building business. Mr. Forrest, who authorizes me to give his name, verifies the foregoing statements, with the exception of one which he strengthens. He says that “Architect”
understates the evil entailed by the definition of “a fourth-rate house”; since the dimensions are much less than those he gives (perhaps in conformity with the provisions of a more recent Building Act). Mr. Forrest has done more than this. Besides illustrating the bad effects of great increase in ground-rents (in sixty years from £1 to £8 10s. for a fourth-rate house) which, joined with other causes, had obliged him to abandon plans for industrial dwellings he had intended to build—besides agreeing with “Architect” that this evil has been greatly increased by the difficulties of land transfer due to the law-established system of trusts and entails; he pointed out that a further penalty on the building of small houses is inflicted by additions to local burdens (“prohibitory imposts” he called them): one of the instances he named being that to the cost of each new house has to be added the cost of pavement, roadway, and sewerage, which is charged according to length of frontage, and which, consequently, bears a far larger ratio to the value of a small house than to the value of a large one.
From these law-produced mischiefs, which were great a generation ago, and have since been increasing, let us pass to more recent law-produced mischiefs. The misery, the disease, the mortality, in “rookeries,” made continually worse by artificial impediments to the increase of fourth-rate houses, and by the necessitated greater crowding of those which existed, having become a scandal, Government was invoked to remove the evil. It responded by Artisans’
Dwellings Acts; giving to local authorities powers to pull down bad houses and provide for the building of good ones. What have been the results? A summary of the operations of the Metropolitan Board of Works, dated 21 December 1883, shows that up to last September it had, at a cost of a million and a quarter to ratepayers, unhoused 21,000 persons and provided houses for 12,000—the remaining 9,000 to be hereafter provided for, being, meanwhile, left houseless.
This is not all. Another local lieutenant of the Government, the Commission of Sewers for the City, working on the same lines, has, under legislative compulsion, pulled down in Golden Lane and Petticoat Square, masses of condemned small houses, which, together, accommodated 1,734
poor people; and of the spaces thus cleared five years ago, one has, by State authority, been sold for a railway station, and the other is only now being covered with industrial dwellings which will eventually accommodate one-half of the expelled population: the result up to the present time being that, added to those displaced by the Metropolitan Board of Works, these 1,734 displaced five years ago, form a total of nearly 11,000 artificially made homeless, who have had to find corners for themselves in miserable places that were already overflowing!
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See then what legislation has done. By ill-imposed taxes, raising the prices of bricks and timber, it added to the costs of houses; and promoted, for economy’s sake, the use of bad materials in scanty quantities. To check the consequent production of wretched dwellings, it established regulations which, in mediaeval fashion, dictated the quality of the commodity produced: there being no perception that by insisting on a higher quality and therefore higher price, it would limit the demand and eventually diminish the supply. By additional local burdens, legislation has of late still further hindered the building of small houses. Finally, having, by successive measures, produced first bad houses and then a deficiency of better ones, it has at length provided for the artificially-increased overflow of poor people by diminishing the house-capacity which already could not contain them! <