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Vices Are Not Crimes - XV.
Written by Lysander Spooner   
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Vices Are Not Crimes
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But these men, who claim that government shall use its power to prevent vice, will say, or are in the habit of saying, "We acknowledge the right of an individual to seek his own happiness in his own way, and consequently to be as vicious as he pleases; we only claim that government shall prohibit the sale to him of those articles by which he ministers to his vice."

The answer to this is that the simple sale of any article whatever — independently of the use that is to be made of the article — is legally a perfectly innocent act. The quality of the act of sale depends wholly upon the quality of the use for which the thing is sold. If the use of anything is virtuous and lawful, then the sale of it, for that use, is virtuous and lawful. If the use is vicious, then the sale of it, for that use, is vicious. If the use is criminal, then the sale of it, for that use, is criminal.

The seller is, at most, only an accomplice in the use that is to be made of the article sold, whether the use be virtuous, vicious, or criminal. Where the use is criminal, the seller is an accomplice in the crime, and punishable as such. But where the use is only vicious, the seller is only an accomplice in the vice, and is not punishable.

But it will be asked, "Is there no right, on the part of government, to arrest the progress of those who are bent on self-destruction?"

The answer is that government has no rights whatever in the matter, so long as these so-called vicious persons remain sane, compos mentis, capable of exercising reasonable discretion and self-control. Because, so long as they do remain sane, they must be allowed to judge and decide for themselves whether their so-called vices really are vices; whether they really are leading them to destruction; and whether, on the whole, they will go there or not.

When they shall become insane, non compos mentis, incapable of reasonable discretion or self-control, their friends or neighbors, or the government, must take care of them, and protect them from harm, and against all persons who would do them harm, in the same way as if their insanity had come upon them from any other cause than their supposed vices.

But because a man is supposed, by his neighbors, to be on the way to self-destruction from his vices, it does not, therefore, follow that he is insane, non compos mentis, incapable of reasonable discretion and self-control, within the legal meaning of those terms. Men and women may be addicted to very gross vices, and to a great many of them — such as gluttony, drunkenness, prostitution, gambling, prize fighting, tobacco chewing, smoking, and snuffing, opium eating, corset wearing, idleness, waste of property, avarice, hypocrisy, etc., etc. — and still be sane, compos mentis, capable of reasonable discretion and self-control, within the meaning of the law.

"The object aimed at in the punishment of vices is to deprive every man of his natural right and liberty to pursue his own happiness under the guidance of his own judgment and by the use of his own property."And so long as they are sane, they must be permitted to control themselves and their property, and to be their own judges as to where their vices will finally lead them. It may be hoped by the lookers-on, in each individual case, that the vicious person will see the end to which he is tending, and be induced to turn back.

But if he chooses to go on to what other men call destruction, he must be permitted to do so. And all that can be said of him, so far as this life is concerned, is that he made a great mistake in his search after happiness, and that others will do well to take warning by his fate. As to what may be his condition in another life, that is a theological question with which the law, in this world, has no more to do than it has with any other theological question, touching men's condition in a future life.

If it be asked how the question of a vicious man's sanity or insanity is to be determined, the answer is that it is to be determined by the same kinds of evidence as is the sanity or insanity of those who are called virtuous, and not otherwise. That is, by the same kinds of evidence by which the legal tribunals determine whether a man should be sent to an asylum for lunatics, or whether he is competent to make a will, or otherwise dispose of his property. Any doubt must weigh in favor of his sanity, as in all other cases, and not of his insanity.

If a person really does become insane, non compos mentis, incapable of reasonable discretion or self-control, it is then a crime on the part of other men, to give to him or sell to him the means of self-injury.[1] There are no crimes more easily punished, no cases in which juries would be more ready to convict, than those where a sane person should sell or give to an insane one any article with which the latter was likely to injure himself.

But it will be said that some men are made by their vices dangerous to other persons; that a drunkard, for example, is sometimes quarrelsome and dangerous toward his family or others. And it will be asked, "Has the law nothing to do in such a case?"

The answer is that if, either from drunkenness or any other cause, a man be really dangerous, either to his family or to other persons, not only himself may be rightfully restrained, so far as the safety of other persons requires, but all other persons — who know or have reasonable grounds to believe him dangerous — may also be restrained from selling or giving to him anything that they have reason to suppose will make him dangerous.

But because one man becomes quarrelsome and dangerous after drinking spirituous liquors, and because it is a crime to give or sell liquor to such a man, it does not follow at all that it is a crime to sell liquors to the hundreds and thousands of other persons who are not made quarrelsome or dangerous by drinking them. Before a man can be convicted of crime in selling liquor to a dangerous man, it must be shown that the particular man, to whom the liquor was sold, was dangerous; and also that the seller knew, or had reasonable grounds to suppose, that the man would be made dangerous by drinking it.

The presumption of law is, in all cases, that the sale is innocent; and the burden of proving it criminal, in any particular case, rests upon the government. And that particular case must be proved criminal, independentlyof all others.

Subject to these principles, there is no difficulty convicting and punishing men for the sale or gift of any article to a man, who is made dangerous to others by the use of it.

But it is often said that some vices are nuisances (public or private), and that nuisances can be abated and punished.

It is true that anything that is really and legally a nuisance (either public or private) can be abated and punished. But it is not true that the mere private vices of one man are, in any legal sense, nuisances to another man or to the public.

No act of one person can be a nuisance to another unless it in some way obstructs or interferes with that other's safe and quiet use or enjoyment of what is rightfully his own.

Whatever obstructs a public highway is a nuisance and may be abated and punished. But a hotel where liquors are sold, a liquor store, or even a grog shop, so called, no more obstructs a public highway, than does a dry goods store, a jewelry store, or a butcher's shop.

Whatever poisons the air, or makes it either offensive or unhealthful, is a nuisance. But neither a hotel, nor a liquor store, nor a grog shop poisons the air, or makes it offensive or unhealthful to outside persons.

Whatever obstructs the light, to which a man is legally entitled, is a nuisance. But neither a hotel, nor a liquor store, nor a grog shop, obstructs anybody's light, except in cases where a church, a schoolhouse, or a dwelling house would have equally obstructed it. On this ground, therefore, the former are no more, and no less, nuisances than the latter would be.

Some persons are in the habit of saying that a liquor shop is dangerous, in the same way that gunpowder is dangerous. But there is no analogy between the two cases. Gunpowder is liable to be exploded by accident, and especially by such fires as often occur in cities. For these reasons it is dangerous to persons and property in its immediate vicinity. But liquors are not liable to be thus exploded, and therefore are not dangerous nuisances, in any such sense as is gunpowder in cities.

But it is said, again, that drinking places are frequently filled with noisy and boisterous men, who disturb the quiet of the neighborhood, and the sleep and rest of the neighbors.

This may be true occasionally, though not very frequently. But whenever, in any case, it is true, the nuisance may be abated by the punishment of the proprietor and his customers, and if need be, by shutting up the place. But an assembly of noisy drinkers is no more a nuisance than is any other noisy assembly.

A jolly or hilarious drinker disturbs the quiet of a neighborhood no more, and no less, than does a shouting religious fanatic. An assembly of noisy drinkers is no more, and no less, a nuisance than is an assembly of shouting religious fanatics. Both of them are nuisances when they disturb the rest and sleep, or quiet, of neighbors. Even a dog that is given to barking, to the disturbance of the sleep or quiet of the neighborhood, is a nuisance.

But it is said that for one person to entice another into a vice is a crime.

This is preposterous. If any particular act is simply a vice, then a man who entices another to commit it, is simply an accomplice in the vice. He evidently commits no crime, because the accomplice can certainly commit no greater offence than the principal.

Every person who is sane, compos mentis, possessed of reasonable discretion and self-control, is presumed to be mentally competent to judge for himself of all the arguments, pro and con, that may be addressed to him, to persuade him to do any particular act, provided no fraud is employed to deceive him. And if he is persuaded or induced to do the act, his act is then his own; and even though the act prove to be harmful to himself, he cannot complain that the persuasion or arguments, to which he yielded his assent, were crimes against himself.

When fraud is practiced, the case is, of course, different. If, for example, I offer a man poison, assuring him that it is a safe and wholesome drink, and he, on the faith of my assertion, swallows it, my act is a crime.

Volenti non fit injuria, is a maxim of the law. "To the willing, no injury is done." That is, no legal wrong. And every person who is sane, compos mentis, capable of exercising reasonable discretion in judging of the truth or falsehood of the representations or persuasion to which he yields his assent, is "willing," in the view of the law; and takes upon himself the entire responsibility for his acts, when no intentional fraud has been practiced upon him.

This principle, that to the willing no injury is done, has no limit, except in the case of frauds, or of persons not possessed of reasonable discretion for judging in the particular case. If a person possessed of reasonable discretion, and not deceived by fraud, consents to practice the grossest vice, and thereby brings upon himself the greatest moral, physical, or pecuniary sufferings or losses, he cannot allege that he has been legally wronged.

To illustrate this principle, take the case of rape. To have carnal knowledge of a woman, against her will, is the highest crime, next to murder, that can be committed against her. But to have carnal knowledge of her, with her consent, is no crime but, at most, a vice. And it is usually holden that a female child, of no more than ten years of age, has such reasonable discretion, that her consent, even though procured by rewards, or promises of reward, is sufficient to convert the act, which would otherwise be a high crime, into a simple act of vice.[2]

We see the same principle in the case of prize fighters. If I but lay one of my fingers upon another man's person, against his will, no matter how lightly, and no matter how little practical injury is done, the act is a crime. But if two men agree to go out and pound each other's faces to a jelly, it is no crime, but only a vice.

Even duels have not generally been considered crimes, because each man's life is his own, and the parties agree that each may take the other's life, if he can, by the use of such weapons as are agreed upon, and in conformity with certain rules that are also mutually assented to.

And this is a correct view of the matter, unless it can be said (as it probably cannot), that "anger is a madness" that so far deprives men of their reason as to make them incapable of reasonable discretion.

Gambling is another illustration of the principle that to the willing no injury is done. If I take but a single cent of a man's property, without his consent, the act is a crime. But if two men, who are compos mentis, possessed of reasonable discretion to judge of the nature and probable results of their act, sit down together, and each voluntarily stakes his money against the money of another, on the turn of a die, and one of them loses his whole estate (however large that may be), it is no crime, but only a vice.

It is not a crime, even, to assist a person to commit suicide, if he be in possession of his reason.

It is a somewhat common idea that suicide is, of itself, conclusive evidence of insanity. But, although it may ordinarily be very strong evidence of insanity, it is by no means conclusive in all cases. Many persons, in undoubted possession of their reason, have committed suicide to escape the shame of a public exposure for their crimes, or to avoid some other great calamity. Suicide, in these cases, may not have been the highest wisdom, but it certainly was not proof of any lack of reasonable discretion.[3]

And being within the limits of reasonable discretion, it was no crime for other persons to aid it, either by furnishing the instrument or otherwise. And if, in such cases, it be no crime to aid a suicide, how absurd to say that it is a crime to aid him in some act that is really pleasurable, and which a large portion of mankind have believed to be useful?