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Studies of Great Composers 1st Edition Charles Hubert
Hastings Parry Digital Instant Download
Author(s): Charles Hubert Hastings Parry
ISBN(s): 9781108004060, 1108004067
Edition: 1
File Details: PDF, 12.95 MB
Year: 2009
Language: english
 Cambridge Library CoLLeCtion
Books of enduring scholarly value

Music
The systematic academic study of music gave rise to works of description,
analysis and criticism, by composers and performers, philosophers and
anthropologists, historians and teachers, and by a new kind of scholar -
the musicologist. This series makes available a range of significant works
encompassing all aspects of the developing discipline.

Studies of Great Composers

C. Hubert H. Parry (1848–1918), knighted in 1902 for his services to
music, was a distinguished composer, conductor and musicologist. In the
first of these roles he is best known for his settings of Blake’s ‘Jerusalem’
and the coronation anthem ‘I was glad’. He was an enthusiastic teacher and
proselytiser of music, believing strongly in its ability to widen and deepen
the experience of Man. This survey of European composers from Palestrina
to Wagner was intended for the interested amateur, and begins with a rapid
and somewhat dismissive survey of European music up to the Renaissance:
each composer subsequently discussed is placed in the context of his time,
and in a vigorously expressed conclusion, Parry argues for an aesthetic which
recognises that some composers are great, others second-rate and yet others
downright bad, and that it is essential that the listening public is able to make
this distinction.
Cambridge University Press has long been a pioneer in the reissuing of
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 Studies of Great
Composers
C ha rles Hubert Hastings Parry
 C a M B R I D G E U n I v E R SI t y P R E S S

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Published in the United States of america by Cambridge University Press, new york

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© in this compilation Cambridge University Press 2009

This edition first published 1887

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 STUDIES OF

GREAT COMPOSERS
BEETHOVEN,
156.
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and yet, even under James I., says Hume, “we find ambassadors
accompanied by a suite of 500 or 300 noblemen.” During the reign
of Edward III. it was enacted that no man should be allowed more
than two courses at dinner or supper, or more than two kinds of
food in each course. Three courses were permitted on the festival
days of the year. Foreign cloth was allowed to the royal family alone.
Unless a man possessed at least £100 per annum he was forbidden
furs, skins and silks. During the same reign, another act divided the
people of England into classes, and prescribed the apparel of each.
In the social scale it did not go higher than knights, and minutely
regulated the clothing of women and children. It was repealed the
following year. In 1363 it was enacted that servants should have
only one meal a day of flesh or fish. The statute of 1444 attempted
to regulate the price of clothing for each year: a bailiff, 50s.;
principal servant, 40s.; ordinary servant, 33s. 4d. James I., of
Scotland, forbade not only “sumptuous clothing,” but the use of pies
and baked meats, to all under the rank of baron. The Scottish
sumptuary law of 1612 was the last in Great Britain. The English
laws were largely repealed during the reign of James I. A few
remained on the statute book as late as 1856. Mr. Froude has
exposed the folly of their existence.
It has been said of the English laws they “were at all times
inspired by a desire to arrest an irresistible movement, resulting
from the very force of things—from the logical development of
human activity. They were, moreover, powerless, and always evaded
by a sort of tacit and general conspiracy of all the citizens, without
anyone being able to find fault with the principle, without anyone
thinking of contesting the power of the legislator on this point.”
Roscher remarks: “In Ireland the government had endeavored
for a long time to preserve that country from the ravages of alcohol,
by the imposition of the highest taxes, and the severest penalties for
smuggling. Every workman in an illegal distillery was transported for
seven years, and every town in which such a one was found was
subject to a heavy fine. All in vain. Only numberless acts of violence
were now added to beastly drunkenness.”
 In another place, Roscher continues thus: “Where it has been
attempted to suppress the consumption of popular delicacies, the
impossibility of enforcing sumptuary laws has been most strikingly
observed. Thus, in the 16th century, an effort was made as regards
brandy; in the 17th, as regards tobacco; in the 18th, as regards
coffee. The Hessian law of 1530 provided that only apothecaries
should retail brandy. In 1624 Papal excommunication was fulminated
against all who took snuff in church, and was repeated in 1690.
According to a Turkish law of 1610, all smokers should have their
pipes broken against the nose. In 1634 a Russian law prohibited
smoking under penalty of death. In Switzerland, even in the 17th
century, no one could smoke except in secret. In its native place
even coffee had a hard struggle. Prohibited in Turkey in 1633 under
pain of death; it was still prohibited in Basel in 1769, and could be
sold by apothecaries only as medicine. In Hanover the coffee trade
was prohibited in 1780. When governments discovered the
fruitlessness of these efforts, they gave up the prohibition of these
luxuries, and instead substituted taxes on them, thus aiming to
combine a moral and a fiscal end. Even Cato took this course. His
office of censor, which united the highest moral superintendence
with the highest financial guidance, must of itself have led him in
this direction.”
Strange it is how slowly men learn by experience. We know of
the many oppressions in England “for opinion’s sake.” History tells us
that the puritan fathers sought “freedom of conscience” in the wilds
of America. Yet, scarcely were the “pilgrims” of New England wonted
to a strange and inhospitable land, than what they required for
themselves was denied to others. In their fanaticism, the “soul
liberty” of Roger Williams was violated in every conceivable way.
Personal freedom was violated to an extent that is now the
detestation of right-thinking persons. Execrable for their tyrannical
spirit, are some of the records of Massachusetts Bay, Plymouth, New
Haven Colony and Connecticut. The following extracts are taken
from the records of the General Court of the Colony of
Massachusetts Bay:
 “1635: Whereas, complaints hath bene made to this Courte that
dyvers persons, within this jurisdiction, doe usually absent
themselves from Church meetings upon the Lord’s Day, power is
therefore given to any two assistants to heare and sensure, either by
fine or imprisonment, all misdemeanors of that kind, committed by
any inhabitant within this jurisdiction, provided they exceede not the
fine of 15 shillings for any one offense.”
“1669: Any person or persons that shalle be found smoking
tobacco on the Lord’s Day, going to or coming from the meetings,
within two miles of the meeting house, shall pay 12 pence for every
such default to the colonies’ use.”
“1692: All and every justices of the peace, constables and
tything men are required to restrain all persons from swimming in
the water; unnecessary and unreasonable walking in the streets or
fields in the toun of Boston, or other places; in the evening
preceding the Lord’s Day, or any other part of the said day or the
evening following.”
“1634: The court, taking into consideration the greate,
superfluous and unnecessary expenses occassioned by some newe
and immodest fashions, as also the ordinary wearing of golde, silver,
silke, laces, girdles, hat-bands, etc., hath, therefore, ordered that
noe person, either man or woman, shall hereafter make or buy any
apparell, either woolen, silke or lynen, with any lace on it, silver,
golde, silke or thread, under the penalty of the forfeiture of such
clothes.”
“1782: Be it enacted that each person, being able of body and
mind, not otherwise necessarily prevented, who shall, for the space
of one month together, absent himself or herself from the public
worship of God, on the Lord’s Day, shall forfeit and pay the sum of
ten shillings.”
In old Connecticut we find legislation similar in character. In
1647: “Forasmuch, as it is observed that many abuses are crept in
and committed by the frequent taking of tobacco, it is ordered by
the authority of this Court, that no person under the age of 20
years, nor any other that hath not accustomed himself to the use
thereof, shall take any tobacco until he hath brought a certificate
under the hands of some who are approved for knowledge and skill
in physic, that it is useful to him and that he hath received a license
from the Court for the same.”
“1643: Whoever shall prophane the Lord’s Day, or any part of it,
by unlawful sport, recreation or otherwise, whether wilfully or in
careless neglect, shall be duly punished by fine, imprisonment, or
corporally, according to the nature and measure of the sin and
offense.”
Here are some of the celebrated New Haven “Blue Laws:”
“Whoever wears clothes trimmed with golde, silver or bone lace,
above two shillings by the yard, shall be presented to the Grand
Jurors, and the selectmen shall tax the offender at £300 estate.”
“No one shall read Common Prayer, keep Xmas or Saint’s Days,
make minced pies, dance, play cards, or play on any instrument of
music, except the drum, trumpet and jew’s-harp.”
“No one shall run on the Sabbath Day, or walk in the Garden or
elsewhere, except reverently to and from meeting.”
“No one shall travel, cook victuals, make beds, sweep house, cut
hair or shave, on the Sabbath Day.”
“No woman shall kiss her child on the Sabbath or fasting day.”
“If any man shall kiss his wife, or any wife her husband, on the
Lord’s Day, the party in fault shall be punished at the discretion of
the Court of Magistrates.”
“Every man and woman duly, twice a day, upon the first tolling
of the bell, repair into the church to heare divine service upon pain
of losing his or her day’s allowance, for the first omission; for the
second to be whipped, and for the third to be condemned to the
galleys for six months.”
 “If any man, after legall conviction, shall have or worship any
other god but the Lord God, hee shall bee put to death.”
“If any person turns Quaker, he shall be banished and not
suffered to return, upon the pains of death.”
“No priest shall abide in this dominion, he shall be banished and
suffer death on his return.”
“No man shall hold any office who is not sound in the faith.”
“No food or lodging shall be afforded to a Quaker, Adamite, or
other heretic.”
“Every man shall have his hair cut round according to a cap.”
Such are a few of the laws that disgrace the beginning of our
national life. Repealed they never were, save by the scorn of time, or
the revolt of the human heart, as it struggled into a wider and
brighter existence. They were only effective as the expression of a
spirit then prevalent. Forward marched the soul, and behind is left
the hideous husk. Here and there, on the statute-books of certain
states, vestiges may remain of Sabbatarian legislation, but they are
a dead letter, to enforce which is seldom or never attempted.
Roscher observes, “That the puritanical laws, which some of the
states have passed prohibiting all sales of spirituous liquors, except
for ecclesiastical, medical or chemical purposes, have been found
impossible of enforcement.” Said Dr. Dio Lewis on this subject: “A
very striking illustration of the weakness of law, when it comes in
contact with the instinct of liberty, is the result of prohibition in
Maine. I have taken pains to learn the facts in that state. I traveled it
throughout and conversed with a large number of its leading
citizens, almost exclusively temperance men, and became satisfied
(notwithstanding the prohibitory law), that intemperance is the great
overwhelming curse of the Pine Tree State.” The Doctor then found
fully 300 grog shops in Bangor. He says of Portland, also, the
number of arrests for drunkenness in 1874 was 2011. He is authority
for the statement that, in 1873, the state prison inspectors of Maine
reported the enormous number of 17,808 arrests for drunkenness
during that year.
Hon. James McGinnis, of the St. Louis bar, several years ago,
gave the prohibitory legislation of the whole country (and its
practical workings) an exhaustive consideration in all aspects. The
results of his study, published to the world, revealed the same
condition of affairs in Maine, New Hampshire, Vermont,
Massachusetts, Rhode Island, Connecticut, New York, Delaware,
Maryland, Ohio, Indiana, Nebraska, Iowa, and Kansas. On every
hand, past and present, he “beheld the impracticability of
prohibition.” “I now appeal,” he says, “to the fair-minded reader to
give his thoughtful attention to the facts and figures which I have
truly and fairly presented, to show that neither crime, pauperism,
intemperance, nor any of the ills which are popularly supposed to
grow out of intemperance, have been at all lessened by prohibition.”
The political economists are practically unanimous in their
reprobation of these laws. Adam Smith vigorously protests against
their impertinence and presumption. Of sumptuary laws it has been
said their enforcement is exceedingly difficult, as it is always harder
to superintend consumption than production. “The latter is
conducted in definite localities. The former is carried on in the
secrecy of a thousand homes. Besides, such laws have very often
the effect to make forbidden fruit all the sweeter.” Spite of the
penalties attached to their violation, and of redoubled measures of
control, government after government have been compelled to admit
their failure in this direction. Laws of this nature always involve an
abridgement of individual “liberty,” and of the natural right of every
man to do what he “will” with his own. They involve the assumption,
also, that a government, with the exercise of paternal authority can
judge better than the citizen what will best subserve his or her
welfare, in the use of what they have. “But such action belongs
more properly to the spiritual than to the temporal power. In ancient
life, where there was a confusion of the two powers in the state
system, sumptuary legislation was more natural than in the modern
world, where those powers have been generally, though imperfectly,
separated.”
“I have learned to doubt,” wrote Dr. Dio Lewis, “whether law is
very potent in the cure of moral evil. Force is a good agency in
breaking rocks and subduing wild beasts; but in curing immorality, in
which we strive to regulate the action and reaction of the faculties
and passions of the human soul, force is about as well adapted to
our purpose as a sledge-hammer to regulating a watch. Some
people seem to have the impression that society is restrained from
evil by law; that our wives and daughters are virtuous because there
is a law against prostitution; that our exemplary citizens refrain from
profanity and excess in gaming and drinking because they are
forbidden by law; that somehow society is kept in order by law.
“It is not denied that Massachusetts has to-day upon her
statute-books other laws involving the same violation of personal
liberty as prohibition; but every law interfering with personal habits
and propensities has no practical vitality.
“For example, prostitution is an enormous evil; and we have a
severe statute against it; but, as a matter of fact, if a house of
prostitution be conducted in a quiet, unobtrusive way, the authorities
cannot break it up. If any prohibitionist can devise a method by
which the authorities can break up such a house, it would be easy to
sell his discovery to property holders of New York City for a hundred
million of dollars.
“Scattered throughout this city (Boston) there are unnumbered
rooms over stores, and other places of business, and in private
houses, occupied by persons who are living in the relation of
husband and wife without legal marriage. There are not two
punishments for every hundred thousand violations of the statutes
against such intimacies.
“Gambling is very common in our city. There is a great number
of rooms, or suites of rooms, devoted to this practice. In club houses
and many hotels, gambling may be found every night, and often
lasting all night. Not a fiftieth part of the gambling done in this city
takes place in gambling rooms. Why does it never occur to anybody
to attempt to enforce the law against gambling in our clubs and
other private houses; should they attempt it they would signally fail.”
Although this was said of New England, it is representative of
the United States and the civilized world. A like picture might be
drawn of every city in our land and throughout Europe. Every candid
and intelligent magistrate, or police official, in the country will admit
that the law never has, and never can, prevent gaming,
intemperance or prostitution. This has been publicly acknowledged
by the most eminent men of affairs in Europe. That it is impossible
to suppress or exterminate the “social evil” has been demonstrated
by Acton, Tait, Parent and Du Chatelet. The latter avows that
“licensed houses are the most judicious and the most consistent with
good morals.” The police establishments of the continent, finding it
impossible to prevent the existence of houses of ill-fame, realized
the necessity, not of authorizing, but of licensing them. The vice is
now subject to police supervision in Paris, Toulon, Lyons, Strasburg,
Brest, Hamburg, Berlin, Vienna, Naples, Brussels, Rheims, Bordeaux,
Marseilles, Copenhagen, Madrid, Malta, Lisbon, Amsterdam and St.
Petersburg. A like policy obtains in Bombay, Hong Kong, Japan, New
South Wales and Cape Colony.
On the contrary, England wages war against prostitution. Is it
with success? No; in this respect her cities are the worst in Europe.
In that country 42,000 illegitimate children were born in 1851. It
was estimated that within the five years preceding, 212,000 females
had strayed from the paths of virtue, and thus taken the first step in
prostitution. In 1832, London had a population of 1,000,000, and
her known prostitutes numbered 10,000. Within her limits were then
3,300 brothels. At that time, in Liverpool, there were 5,000 fallen
women. Of houses of ill-fame Dublin had 355; Edinburgh, 219;
Glasgow, 204; Liverpool, 770; Manchester, 308; Birmingham, 797;
Hull, 175; Leeds, 179; Norwich, 194. In England, in 1865, there
were 500,000 prostitutes. It has been computed that the
unfortunates number about 86,000 in the London of to-day. It is not
surprising, then, that the constabulary of Great Britain are in despair
of their power for good over this evil. “Sooner or later (they realize)
the principle of individual liberty must triumph, and prostitution must
become, under the shadow of general principles, as unrestricted as
any other commerce, moral or immoral.”
In New York City, also, the law has always attempted to repress
the “social evil,” but without avail. This has been openly recognized
by those in authority. In 1875, 1876, and 1877 licensed prostitution
was recommended by a committee of the State Legislature, the
Grand Jury of the City and County of New York, and the
Commissioner of Public Charities and Correction. The committee
assumed “that houses of prostitution must exist;” and its members,
therefore, took it upon themselves “to earnestly recommend to the
Legislature the regulating, or permitting,” or, as they phrased it, “if
the word be not deemed offensive, the licensing of prostitution.” In
June, 1876, the Grand Jury of the Court of General Sessions of the
same county and state, made an official presentment concerning
prostitution, in which they say “that however abhorrent to the views
of some, any legislation may be, which appears to legalize so great
an evil, still the fact must not be lost sight of that it is an evil
impossible to suppress, yet comparatively easy to regulate and
circumscribe.” They conclude with a memorial to the Legislature, “to
adopt as early as practicable some system of laws calculated to
confine houses of prostitution, in the large cities of this state, within
certain specified limits, and to subject them at all times to a careful
and vigilant supervision of the Boards of Health and Police.”
Punitory laws never have, and never will cure the evils to which
society is liable. “Life is sweet,” some one has said, and yet even the
death penalty does not prevent murder. If the menace of death is
not a deterrent, what can be said for lesser penalties like fines and
imprisonment. That capital punishment is not a preventive of crime
was (upon investigation) the conviction of Bentham, Beccaria,
George Clinton, Lord Brougham, Judge J. W. Edmunds, William H.
Seward, Wendell Phillips, Douglas Jerrold, Cassius M. Clay, Dr.
Lushington, Edward Livingston, Theodore Parker, Vice-President
Dallas, DeWitt Clinton, Victor Hugo, Mittermaier, John Howard, Sir
Samuel Romilly, Earl Russell, Lord Houghton, Lord Osborne, John
Bright, Lord Hobart, Lord Kelly, Frederick Robertson, Prof. Fawcett,
Charles Dickens, John Stuart Mill, Canning, Thomas Jefferson, and
hundreds of other able, thoughtful and conscientious men. Their
position was not only grounded on observation, but fortified by the
experience of Tuscany, Spain, Italy, Switzerland, Bavaria, Belgium,
San Marino, Denmark, Norway, Sweden, Michigan, Wisconsin,
Minnesota, Maine, Vermont, and Rhode Island. “There is no passion
in the mind of man,” said Lord Bacon, “so weak, but it mates and
masters the fear of death; and therefore death is no such terrible
enemy when a man hath so many attendants about him that can
win the combat of him. Revenge triumphs over death; love slights it;
honor aspireth to it; grief fleeth to it; fear occupieth it.” And if “the
fear of the great future,” writes Bovee, “when painted with the
horrors such as only a Milton or a Pollok could depict, produces no
more marked effect on human action; it is hardly reasonable to
suppose that the menace of death by human law, will be very
effective in the repression of crime.”
The truth is clear to Rev. Octavius B. Frothingham. He declares
that neither crime nor vice can be prevented, remedied, or expelled
by force of law. “Nature will have her way, if not by one channel,
then by another. She will plunge underground, and come up in
unexpected spots. Cunning comes to her assistance. She makes
alliance with subterfuge and deceit. She is sly, swift, ubiquitous.
Disappearing in New York, she turns up in Philadelphia. Expelled
from the cities, she takes refuge in the towns; banished from the
towns, she finds coverts in the cities; hiding in the dens and slums,
creeping into the lanes, mingling with the crowd of harmless things,
sheltering herself behind law. She is a Proteus, able to take on every
possible shape of innocence. Refuse her brandy, she will take opium,
morphine, ether, tobacco, strong coffee, in quantities equivalent to
the stimulant desired. You fancy the community becoming temperate
in one respect, and find it becoming intemperate in another. Opium
eaters multiply as dram-drinkers decrease. The propensity is alive
still, and perhaps provoked to activity by the efforts made to
suppress it. The natural appetite being reinforced by anger, spite,
the spirit of resistance to persecution, which grows dogged and
stubborn, fortifying the sense of injustice by the pride of self-will.
“As if impatient at the slowness of the converting process, weary
of the task of planting vice out, of choking the weeds of instinct with
the flowers of grace, the church undertook, with violent hand, to pull
up the weeds by main force. Instead of abolishing the hydra by a
beautiful law of evolution, which should create a series of nobler
growths; it undertook to cut off the poisonous heads, one by one. It
took boys and girls, at the tenderest age, out of the world, confined
them in religious houses, refused them the joy of the flesh, and the
joy of the eyes, and the pride of life, barred the gates of every
terrestrial garden, mortified their desires, kept them occupied with
prayers and contemplations, and so tried to starve nature to death.
“Christianity, was as consistent, tried to repress the disposition to
unbelief, in its opinion the most fruitful source of vice. The
disposition to unbelief was regarded as the deadliest symptom of the
natural, unconverted heart. To counteract it by an opposite
disposition to belief was tedious and difficult, and the method of
repression was resorted to. The civic power was enlisted in the work
of exterminating pernicious error. Tribunals were created, laws were
passed, judges and executioners were appointed, penalties were
devised, heretical schools were broken up, heretical books were
burned, heretical teachers were banished, silenced, incarcerated,
consigned to the flames. Whole provinces were devastated, towns
were destroyed, populations turned adrift to perish; the entire field
of unorthodox thought was ploughed over and sown with salt. And
what was the result of the method, carried out on this vast scale,
with full ecclesiastical and civil powers—the sacred and the secular
authorities combining, the sympathy of the Christian world aiding,
no public opinion opposing, the resources of wealth conspiring with
the resources of fanaticism, to make the policy of suppression
effective? The issue is familiar to all who care to know the truth,
from the reports of historians, who have made it their business to
ascertain and tell the facts. They certainly do not bear out the
conclusion that the method of suppression is wise, or even practical.
On the contrary, they suggest the opinion that it is impractical as it is
unwise. The failure of the method was so disastrous that it quite
defeated the ends.
“If one thing is demonstrated by human history, it is this:—the
attempt to suppress human nature, under any form, so it be nature
that is suppressed, is futile. The old proverbs, which say, ‘Drive
nature out at the door, and she comes in at the window;’ ‘You
cannot expel nature with a fork;’ hold out a truth that is for all
time.... Deeply rooted propensities, habits which have become a
second nature, cannot be thus dealt with. No Hercules’ club will avail
to kill the vital principle that grows venomous heads faster than they
can be bruised. The effort to suppress nature by violent measures, is
always followed, always produces a reaction, that is exactly
proportioned in strength to the effort, and fairly balances it. Healthy
progress is slow, gradual, measured, according to the sure
conditions of cause and effect. It consists of a long line of close
sequences, knit together, not mechanically, like a chain, but
organically, like a muscle or a nerve. Every inch of growth implies a
preceding inch of growth; there is no such thing as jump or leap
from point to point. You do not make the elastic band longer by
stretching it; you but loosen the cohesion of its parts; the strain
being relaxed, the band resumes its first condition; the strain being
continued, the band looses its elasticity and breaks. There is no
more power than there is.”
M. Guizot, statesman and historian, thought it a gross delusion
to believe in the sovereign power of political machinery. Every day
discloses a failure, every day there reappears the belief that it needs
but an act of some legislative body and a corps of officials to effect
any purpose. The faith of mankind is nowhere better seen.
Disappointment has been preached from the first: “Put not thy trust
in legislation.” Yet the trust in legislation seems scarcely diminished.
Is it not time to reject the law as a social panacea? We should now
realize that measures are usually quite different in effect from what
has been expected. It would be difficult to estimate the number of
legislative disappointments in English and American history; “or the
amount of harm which has been inflicted on society by abortive
attempts at statesmanship.” History demonstrates the incapacity of
law-givers. Says Mr. Jensen, “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 partially or wholly
repealed.” And Herbert Spencer estimated a few years ago that “in
the last three sessions of the English parliament, there have been
totally repealed 650 acts, belonging to the present reign alone.”
Buckle said, in this connection, every great reform has consisted
“not in doing something new, but in undoing something old. The
most valuable additions made to legislation have been enactments
destructive of preceding legislation, and the best laws which have
been passed have been those by which some former laws were
repealed.... We owe no thanks to law-givers as a class; for, since the
most valuable improvements in legislation are those which subvert
preceding legislation, it is clear that the balance of good cannot be
on their side. It is clear that the progress of civilization cannot be
due to those who, on the most important subjects, have done so
much harm that their successors are considered benefactors, simply
because they reverse their policy, and thus restored affairs to the
state in which they would have remained, if politicians had allowed
them to run on in the course which the wants of society required.”
In the name of “liberty and equality,” a brave battle has been
fought for individuality. Unjust and unwise interference by the state
has been ably resisted. It is demanded that private judgment be
released from the embrace of authority. The truth is, one man has
no natural right to make laws for another. True, he may repel
another, when his own rights are infringed, but he has no right to
govern him. The individual is sovereign merely over himself, and not
over his fellow-man.
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.”
An eminent and respected physician once said to an enlightened
audience: “Not a person before me, but has suffered from vices;
indeed, that is what we mean by the imperfection of human nature.
When we depart from perfection it is a vice. Everybody is guilty of
vices. The people before me, forty years old, should not be so old at
fifty or sixty. Their teeth are decayed, and they have imperfect
digestion. They do not enjoy the full and happy play of all their
powers and faculties, and the greater part of this waste comes from
vices. There are certain secret vices which cannot be publicly
named, which are doing more to break down our vital force, make
us prematurely old, and fetter our souls, than all the crimes
committed in the country, and the legislature can do nothing to cure
them.
“Without doubt, gluttony is the most destructive of all our vices.
It obtains among all classes, all ages, and both sexes. Eminent
medical men, in England and America, declare that strong food can
count ten victims, where strong drink counts one.
“Tobacco is doing more injury to the minds and bodies of our
nation than all the murder, theft, burglary, and arson, and yet the
legislature can do nothing to cure the tobacco curse.”
Dr. Lewis wisely continues: “It is not often possible to say of
those acts that are called vices, that they are really vices except in
degree. That is, it is difficult to say of any actions, or courses of
action, that are called vices, that they really would have been vices,
if they had stopped short of a certain point. The question of vice or
virtue, therefore, in all such cases, is a question of quantity and
degree, and not of the intrinsic character of any single act, by itself.
This fact adds to the difficulty, not to say the impossibility, of any
one’s—except each individual for himself—drawing any accurate line,
or anything like an accurate line, between virtue and vice; that is, of
telling where virtue ends and vice begins. And this is another reason
why this whole question of virtue and vice should be left for each
person to settle for himself. Vices are usually pleasurable, at least for
the time being, and often do not disclose themselves as vices, by
their effects, until they have been practiced for many years, or
perhaps for a life-time. To many, perhaps most, of those who
practice them, they do not disclose themselves as vices, at all during
life. Virtues, on the other hand, often appear so harsh and rugged,
they require the sacrifice of so much present happiness, at least,
and the results which alone prove them to be virtues, are so often
distant and obscure, in fact so absolutely invisible to the minds of
many, especially of the young, that, from the very nature of things,
there can be no universal or even general knowledge that they are
virtues. In truth, the studies of profound philosophers have been
expended—if not wholly in vain, certainly with very small results—in
efforts to draw the lines between virtues and vices.
“If then, it be so difficult, so nearly impossible, in most cases, to
determine what is and what is not, vice; and especially if it be so
difficult in nearly all cases to determine where virtue ends and where
vice begins; and if these questions, which no one can really and
truly determine for anybody but himself, are not to be left open and
free for experiment by all, each person is deprived of the highest of
all his rights as a human being; to wit: his right to inquire,
investigate, reason, try experiments, judge and ascertain for himself,
what is, to him, virtue, and what is, to him, vice; in other words,
what, on the whole, conduces to his happiness, and what, on the
whole, tends to his unhappiness. If this great right is not to be left
free and open to all, then each man’s whole right as a reasoning
human being, to liberty and the pursuit of happiness is denied him.”
“It is now obvious, for the reasons already given, that government
would be utterly impracticable, if it were to take cognizance of vices
and punish them as crimes. Every human being has his, or her,
vices. Nearly all men have a great many. And they are of all kinds:
physiological, mental, emotional, religious, social, commercial,
industrial, economical, etc. If government is to take cognizance of
any of these vices, and punish them as crimes, then, to be
consistent, it must take cognizance of all and punish all impartially.
The consequences would be, that everybody would be in prison for
his, or her, vices. There would be no one left to lock the doors upon
those within. In fact, courts enough could not be found to try the
offenders, nor prisons enough built to hold them. All human industry
in the acquisition of knowledge, and even in acquiring the means of
subsistence, would be arrested; we should be all under constant trial
or imprisonment for our vices. But even if it were possible to
imprison all the vicious, our knowledge of human nature tells us
that, as a general rule, they would be far more vicious in prison than
they ever have been out of it. A government that shall punish all
vices impartially, is so obviously an impossibility, that nobody was
ever found, or ever will be found, foolish enough to propose it. The
most that any one proposes is, that government shall punish some
one, or, at most a few, of what he esteems the grossest of them.”
“But this discrimination is an utterly absurd, illogical and
tyrannical one. What right has any body of men to say, ‘The vices of
other men we will punish, but our own vices nobody shall punish?
We will restrain other men from seeking their own happiness,
according to their own notions of it; but nobody shall restrain us
from seeking our own happiness, according to our notion of it. We
will restrain other men from acquiring any experimental knowledge
of what is conducive or necessary to their own happiness; but
nobody shall restrain us from acquiring an experimental knowledge
of what is conducive or necessary to our own happiness.’ Nobody
but knaves and blockheads ever think of any such absurd
assumptions as these. And yet, evidently, it is only upon such
assumptions that anybody can claim the right to punish the vices of
others, and at the same time claim exemption from punishment for
his own. The greatest of all crimes are the wars that are carried on
by governments to plunder, destroy and enslave mankind.”
It has been asserted that gambling is a vice. I deny that such is
the case. The proposition cannot be established, as an absolute
principle. If a man chooses to risk his money, on a game of cards, he
has a perfect right to do so, in the abstract, and no man, or any
body of men, has a right to forbid him. “It is his money, and he has
a right to do what he chooses with it. He has a legal right to put it in
a gun and shoot it away, or burn it up, or risk it on a game of
chance, or make any other disposition of it, and no man, or body of
men, has a right to interfere.” For my purpose, as a question of law,
the real question is whether a man may dispose of his own as he
chooses? If so, then he has a right to wager it on a game of cards,
or at dice; and it is absurd to treat as criminal another man who may
join in with him in gaming, as an antagonist. In other words, “If
John has at any time or in any place, the right to wager his money
on a game of chance, then it is absurd to treat as criminal the
helping John to do what he has a right to do. If one participant in a
transaction is guilty of crime, so is the other. But if one participant is
guiltless, then the other is guiltless.”
The keepers of gambling resorts are denounced, as though they
were responsible for the gambling propensity in mankind. Now,
resorts for gambling do not cause the passion. It is a tendency to
which all men are prone, more or less. “The essential fact is the
existence of this passion. There can never be any great difficulty in
obtaining the means for its gratification.” If not one way, then in
another. If at all, attack the principle, in whatever guise or by
whomsoever practiced. If some methods are denounced, then
should all methods be denounced. If those who furnish certain
“means to the end” are to be punished as criminals, then should all
persons who furnish any “means to the end.” But to punish any such
person is erroneous and very short sighted; for the primary cause of
the trouble, if such it be, is the desire for gaming. It is impossible to
prevent its gratification. As wisely attempt “to make one’s hair white
or black” by virtue of “the statute in such cases made and provided.”
Suppose the law efficacious, with what consistency does our
jurisprudence make gambling a crime? In general, at common law,
all games are lawful, unless fraud has been practiced. Each of the
parties must have a right to the money or thing played for. He must
give his free and full consent, and the play must be conducted fairly.
The mutual promises of the parties to the wager are held a sufficient
consideration. A large number of such actions have been sustained
by the courts of England and the United States.
For example, it was held that a wager of fifty guineas by one of
the litigants that an appeal from a decree of Chancery would be
reversed by the House of Lords, was not, of itself, void, there being
no charge of fraud. So, wagers as to the time when a railroad would
be completed; or, as to the name of a person whom one of the
parties had seen; or, as to the age of one of the parties; or, upon the
price of an article of commerce; or, as to who would die first, of two
persons not privy to the wager; or, as to whether A. would hit a
target; or, upon foot or horse races; were held valid. Indeed, the
tendency of the courts to discourage wagers of every nature is
relatively of recent date. In many of the United States, the doctrine
has been abrogated by statute. Texas, Delaware, California, and
some other states still adhere to the English rule.
Some of the judgments in England were rendered by the
greatest of judicial minds: Lord Mansfield, Lord Holt, Lord Hardwicke
and Lord Kenyon. In the language of Lord Holt: “When considered in
itself, there is nothing in a wager, contrary to natural equity, and the
contract will be considered as a reciprocal gift, which the parties
make of the thing played for, under certain conditions.” Lord
Mansfield laid it down, that wagers are actionable: “and that the
restraints imposed on certain species, by acts of parliament, are
exceptions to the general rule, and prove it.” And Lord Kenyon
declared in Good vs. Elliott: “Being bound by former decisions, not
having the power to alter the law, not finding any one case against
the legality of wagers in general, and finding cases without number,
wherein wagers have been held to be good, and that the payment of
them may be enforced, I adjudge the wager in the present case
good at common law.” It was a wager that A. had purchased a
certain wagon of B.
 The source of our jurisprudence is the common law of England.
Gambling was not a crime under this system, and here it would
enforce the contract of wager. I therefore denounce as incongruous
and irrational a statute which seeks to punish the wagerer as a
criminal.
Crime, at common law is something essential, so, in its very
nature; grounded in the Mosaic decalogue and the reason of things:
murder, mayhem, adultery, robbery, theft, arson. The wager is akin
to none of these, nor does it come within their spirit. The common
law branded as a criminal him only whom God had thus branded.
The wagerer was not of the number.
In a word, is gambling malum in se? In answer, the common
conviction of men has never so regarded it. The common law has
ever recognized a boundary line which separates the mala in se from
the mala prohibita. In law, a thing is malum in se when absolutely
evil in itself; “not, indeed, in a philosophical sense,” says the eminent
lawyer, James C. Carter, “but absolutely, according to the universal
conviction, in the political society which so views it; and mala
prohibita are those things, otherwise innocent or indifferent, which
the legislative power, having control over the subject, may declare to
be offenses.” Although not malum in se, gambling may be malum
prohibitum. If the latter, then it becomes merely a question of public
policy whether or not the state shall license gambling, subject to
such conditions as the police power might impose. At any rate, to
the extent that government is a moral entity, it cannot rightfully
punish gambling as being bad in itself.
“The King is Dead—Long Live the
King.”

CHAPTER V.
“The King is Dead—Long Live the King.”

E XPRESSIVE was the coronation ceremony in the ancient

Dukedom of Carinthia. The ducal candidate, in a peasant’s
garb, and with head proudly erect, walked towards the
marble throne of his ancestors. But upon it was already seated a
peasant, attended by the black bull and the lean horse—those sad
and severe symbols of his class. Then was commenced between
them this rude dialogue:

Peasant:—“Who so proudly dares enter here? Is he a just judge?

Has he the good of the country at heart?”
 Duke:—“He is and he will.”
Peasant:—“I demand by what right he will force me to quit this
place?”
Duke:—“He will buy it of you for sixty pennies, and the horse
and the bull shall be yours.”
Nowhere, in the past, was the sovereignty of the people more
haughtily declared, than in this formality of the old Carinthians. “It
bears the seal of remote antiquity—of an Homeric or Biblical
simplicity.” That the people were the only true source of power, was
admitted even in the archaic periods of history. Of olden time, there
were many forms of popular government. Aristotle made a study of
their institutions. Greece had her democracies and Italy a great
republic. In Asia, then, as now, the assertion of political power was
the sole foundation for its maintenance.
With the development of Christianity, in Europe, was inculcated
the theoretic idea. Kings were anointed and they ruled by “divine
right.” In the language of Mr. Tiedeman: “The king, who in theory
obtained his authority from God, acknowledged no natural rights in
the individual. Individual activity, for its room, depended upon the
monarch’s will.” In time, however, came the Reformation and political
revolutions in England, France, the Netherlands, Spain and Italy. To-
day, the “divine right” of kings is generally repudiated. It has been
displaced by the ancient principle that all power is derived from the
people. “The people were once subjects of the king. The
government is now subject to the people.” “The king is dead,” but
his functions yet live in “the state,” or the people.
While many ancient statesmen and publicists recognized the
proper origin of power in government, their opinions as to its nature
and extent were neither clear nor sound. Wherever lodged, in their
judgment, power was limitless and irresponsible. Whether exercised
by king or emperor, by an aristocracy or the people, it was absolute.
Politically, in other words, the individual was annihilated by the state.
Government did not permit the existence of any personal right that it
“was bound to respect.” This is also true of later times, in continental
Europe. True, the “divine right” of kings was repudiated, but not the
doctrine of absolutism. “Vox Populi, Vox Dei,” became the general
answer to all complaints of the individual against the encroachments
of popular government upon his rights and liberty. In the name of
the people, atrocious crimes were perpetrated by revolutionary
governments.
In its proper sense, individual liberty is a development of the
Anglo-Saxon institutions. This doctrine is fundamental to the English
Constitution. The principle is cardinal and vital in the American
system of government. Individual rights are protected by
constitutional restrictions upon power, federal and state. In the
United States, every individual is a king. This accords with the so-
called laissez-faire doctrine, of modern development in England and
the United States, which confines the sphere of government within
the narrowest limits, and denies to it the power to do more than
provide for public order and personal security, by the prevention and
punishment of crimes and trespasses. Under the influence of this
wholesome principle, with us and in Great Britain, for one hundred
years, the encroachments of government upon the rights and
liberties of the individual have been comparatively few.
In other words, it has been generally admitted by the wisest and
broadest statesmanship, that private rights and personal liberty do
not exist by the permission of municipal law. They are natural and
founded upon the law of reason; that, therefore, governmental
restraint should “only go to the limit necessary to a uniform and
reasonable conservation of private rights.” Municipal law protects
and develops, rather than creates private rights and personal liberty.
In the United States this “limit” has been generally fixed at the
power to enforce the common and civil law maxim, “sic utere tuo, ut
alieum non lædas.” The “police power,” it is called, and extends, in
its broadest sense, to the preservation of peace and good order to
the protection of property rights, “and of the lives, limbs, health and
comfort of all persons.” Any law which goes beyond this, in the
United States, at least, and undertakes to abolish rights, the exercise
of which do not infringe upon the rights of others; or limits the
exercise of rights beyond what is necessary for the public welfare
and general security, is not properly within the police power.
The police power, then, is properly concerned only with crimes
and trespasses. It cannot rightfully invade the realm of ethics, as
such. Crime is theoretically a direct injury to the public, and
trespass, a direct injury to the individual. A vice, on the contrary, is
the inordinate gratification of one’s desires and passions. The
primary damage is to one’s self. In contemplating the nature of a
vice, we are not conscious of a trespass on the rights of others. Vice
does not fall within the police power. Expressed in the language of
Mr. Tiedeman, “the object of police power, is the prevention of crime
—the protection of rights against the assaults of others. The police
power of the government cannot properly be brought into operation
for the purpose of exacting obedience to the rules of morality, and
banishing vice and sin from the world. The moral laws can exact
obedience only in foro conscientiæ. The municipal law has only to do
with trespasses. It cannot be called into play in order to save one
from the evil consequences of his own vices, for the violation of a
right, by the action of another, must exist or be threatened, in order
to justify the interference of law.”
The people of this country are generally convinced of this truth.
So widespread is the conviction that, where a law “does not have for
its object the prevention or punishment of a trespass upon rights, it
is impossible to obtain for it an enthusiastic and unanimous support.”
Besides, it is true of every community, when “public opinion is
aroused to an activity that will enforce a law for the prevention of
vice, the moral force alone will be ample to suppress it.” But it is
sometimes urged that an otherwise ineffectual statute may serve to
direct public opinion in the right direction. To this I reply that one
unerring truth is taught by the history of legislation: “It is the utter
futility, in a corrective sense, of a law whose enactment is not the
unavoidable resultant of the forces then in play in organized society.
Nothing so weakens the reverence for law, and diminishes its
effectiveness, as still-born statutes.”
Certain matters are generally recognized to be within the police
power of the state. For instance, the control of infectious and
contagious diseases, of the insane, of habitual drunkards,
spendthrifts, vagrants and mendicants. And finally, by forced
construction, it has been extended to the liquor traffic. The law, it is
said, may prohibit the sale of liquor to minors, lunatics, persons
intoxicated, confirmed inebriates, and other persons with certain
weaknesses of character. Courts maintain that while the liquor traffic
is subject to the police power, yet it may not be entirely forbidden as
necessarily injurious to the public in a legal sense. To quote the
Supreme Court of Indiana, in Beabe vs. State: “Where injury does
result (from the use of beverages) it is usually caused by the
shortcomings of the purchaser, without any participation in the
wrong of the seller. No business can be prohibited altogether, unless
its prosecution is necessarily and essentially injurious. It is the abuse
and not the use of beverages that is hurtful. The use of beverages is
not necessarily destructive to the community.... Fire-arms and
gunpowder are not manufactured to shoot innocent persons, but are
often so misapplied. Axes and hatchets are not made and sold to
break heads with, but are often used for that purpose. Yet who has
ever contended the manufacture and sale of these articles should be
prohibited as a nuisance. We repeat, the manufacture and sale of
liquors are not necessarily hurtful, and therefore may not be entirely
prohibited.”
So much for the “police power,” generally considered. But what
of its relation to gambling, if any? If the practice is neither a crime
nor a trespass, then it is not rightfully subject to public regulation. I
have demonstrated to the candid judgment that, of itself, gambling
is not essentially wrong. I insist that, at least, in the absence of
fraud and chicane, it is neither sinful, nor criminal. To gamble with
another is not to assault his person or property by main force. To
wager or bet upon the laws of chance, deceit aside, is not to kill,
maim, rob, or cheat your fellow man; the players freely participate in
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