on liberty-第32章
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prescription; the presence of some third person might be required;
to bring home the fact to the purchaser; in case there should
afterwards be reason to believe that the article had been applied to
criminal purposes。 Such regulations would in general be no material
impediment to obtaining the article; but a very considerable one to
making an improper use of it without detection。
The right inherent in society; to ward off crimes against itself
by antecedent precautions; suggests the obvious limitations to the
maxim; that purely self…regarding misconduct cannot properly be
meddled with in the way of prevention or punishment。 Drunkenness;
for example; in ordinary cases; is not a fit subject for legislative
interference; but I should deem it perfectly legitimate that a person;
who had once been convicted of any act of violence to others under the
influence of drink; should be placed under a special legal
restriction; personal to himself; that if he were afterwards found
drunk; he should be liable to a penalty; and that if when in that
state he committed another offence; the punishment to which he would
be liable for that other offence should be increased in severity。
The making himself drunk; in a person whom drunkenness excites to do
harm to others; is a crime against others。 So; again; idleness; except
in a person receiving support from the public; or except when it
constitutes a breach of contract; cannot without tyranny be made a
subject of legal punishment; but if; either from idleness or from
any other avoidable cause; a man fails to perform his legal duties
to others; as for instance to support his children; it is no tyranny
to force him to fulfil that obligation; by compulsory labour; if no
other means are available。
Again; there are many acts which; being directly injurious only to
the agents themselves; ought not to be legally interdicted; but which;
if done publicly; are a violation of good manners; and coming thus
within the category of offences against others; may rightly be
prohibited。 Of this kind are offences against decency; on which it
is unnecessary to dwell; the rather as they are only connected
indirectly with our subject; the objection to publicity being
equally strong in the case of many actions not in themselves
condemnable; nor supposed to be so。
There is another question to which an answer must be found;
consistent with the principles which have been laid down。 In cases
of personal conduct supposed to be blamable; but which respect for
liberty precludes society from preventing or punishing; because the
evil directly resulting falls wholly on the agent; what the agent is
free to do; ought other persons to be equally free to counsel or
instigate? This question is not free from difficulty。 The case of a
person who solicits another to do an act is not strictly a case of
self…regarding conduct。 To give advice or offer inducements to any one
is a social act; and may; therefore; like actions in general which
affect others; be supposed amenable to social control。 But a little
reflection corrects the first impression; by showing that if the
case is not strictly within the definition of individual liberty;
yet the reasons on which the principle of individual liberty is
grounded are applicable to it。 If people must be allowed; in
whatever concerns only themselves; to act as seems best to themselves;
at their own peril; they must equally be free to consult with one
another about what is fit to be so done; to exchange opinions; and
give and receive suggestions。 Whatever it is permitted to do; it
must be permitted to advise to do。 The question is doubtful only
when the instigator derives a personal benefit from his advice; when
he makes it his occupation; for subsistence or pecuniary gain; to
promote what society and the State consider to be an evil。 Then;
indeed; a new element of complication is introduced; namely; the
existence of classes of persons with an interest opposed to what is
considered as the public weal; and whose mode of living is grounded on
the counteraction of it。 Ought this to be interfered with; or not?
Fornication; for example; must be tolerated; and so must gambling; but
should a person be free to be a pimp; or to keep a gambling…house? The
case is one of those which lie on the exact boundary line between
two principles; and it is not at once apparent to which of the two
it properly belongs。
There are arguments on both sides。 On the side of toleration it
may be said that the fact of following anything as an occupation;
and living or profiting by the practice of it; cannot make that
criminal which would otherwise be admissible; that the act should
either be consistently permitted or consistently prohibited; that if
the principles which we have hitherto defended are true; society has
no business; as society; to decide anything to be wrong which concerns
only the individual; that it cannot go beyond dissuasion; and that one
person should be as free to persuade as another to dissuade。 In
opposition to this it may be contended; that although the public; or
the State; are not warranted in authoritatively deciding; for purposes
of repression or punishment; that such or such conduct affecting
only the interests of the individual is good or bad; they are fully
justified in assuming; if they regard it as bad; that its being so
or not is at least a disputable question: That; this being supposed;
they cannot be acting wrongly in endeavouring to exclude the influence
of solicitations which are not disinterested; of instigators who
cannot possibly be impartial… who have a direct personal interest on
one side; and that side the one which the State believes to be
wrong; and who confessedly promote it for personal objects only。 There
can surely; it may be urged; be nothing lost; no sacrifice of good; by
so ordering matters that persons shall make their election; either
wisely or foolishly; on their own prompting; as free as possible
from the arts of persons who stimulate their inclinations for
interested purposes of their own。 Thus (it may be said) though the
statutes respecting unlawful games are utterly indefensible… though
all persons should be free to gamble in their own or each other's
houses; or in any place of meeting established by their own
subscriptions; and open only to the members and their visitors… yet
public gambling…houses should not be permitted。 It is true that the
prohibition is never effectual; and that; whatever amount of
tyrannical power may be given to the police; gambling…houses can
always be maintained under other pretences; but they may be
compelled to conduct their operations with a certain degree of secrecy
and mystery; so that nobody knows anything about them but those who
seek them; and more than this society ought not to aim at。
There is considerable force in these arguments。 I will not venture
to decide whether they are sufficient to justify the moral anomaly
of punishing the accessary; when the principal is (and must be)
allowed to go free; of fining or imprisoning the procurer; but not the
fornicator… the gambling…house keeper; but not the gambler。 Still less
ought the common operations of buying and selling to be interfered
with on analogous grounds。 Almost every article which is bought and
sold may be used in excess; and the sellers have a pecuniary
interest in encouraging that excess; but no argument can be founded on
this; in favour; for instance; of the Maine Law; because the class
of dealers in strong drinks; though interested in their abuse; are
indispensably required for the sake of their legitimate use。 The
interest; however; of these dealers in promoting intemperance is a
real evil; and justif