Sunday, October 30, 2011

Steven T. Byington, "On Interference with the Environment"



ON INTERFERENCE WITH THE ENVIRONMENT.


 By STEVEN T. BYINGTON.



I.—THE PRESUPPOSITIONS I START FROM.

I WANT to start a discussion which may be of some length, especially if I get replies from those who disagree with me, as I hope I may, and I think it will pay if first I lay down, like Euclid, a few of the axioms and postulates with which I begin.

I observe that men universally hold that certain types of action are to be approved and certain others are to be disapproved. They differ as to what actions should be put in either class: Herodotus noted this in the case of the nation where it was a disgrace to eat one's father, and the other nation where it was a disgrace not to eat one's father. They differ as to what names should be used for the classes: most people say right and wrong or good and bad, but some object most strenuously to these terms and prefer to say high and low, noble and base, fine and sordid, and I know not what. But everybody has some name for some sorts of actions that he thinks well of, and another name for those of which he thinks ill. The question whether it is well to speak of "right" or "wrong" is a very dry dispute about words; but the question whether a given action belongs in the black class or in the white class is a question of intense interest wherever there is a difference of opinion about it. Look at any book that has been written to prove that there is no such thing as moral good or evil, and see with what a relish the author will stigmatise the moralist's attitude by the names of such vices as he recognises to be vices, such as cowardice or laziness. Well, I will try to avoid using terms that are objected to—I am entirely willing, in order to get neutral terminology, to revive the Stoic's names of proegmena and apoproegmena, and to use these names in a way directly opposite to the Stoic use—but I want leave to talk approvingly of some actions and disapprovingly of others, as everyone else does; and if I carelessly let a bit of moralistic language slip in, I hope those who believe that there is no crime will allow that I have committed none.

Similarly, I observe a general consensus that society will be best ordered by letting a man feel secure that certain things shall not be done against him. Once more we have the dispute over names, some objecting strongly to the words "right" and "ought" because of the moralistic associations of these words. But, though they do not offer such a flood of substitute names as in the other case, I do not see that they are any less disposed to claim for themselves or their clients some of the things commonly called rights, and to use strong objurgatory language in expressing their disagreement with those who will not acknowledge some of these claims. I am interested in some such claims myself; if in discussing them I ever say that a man "ought" to have a "right" to something, I shall not intend those words to prejudice the case in my favour, and I shall not think well of one who tries to make those words prejudice the case against me.

I believe in debate, not because I ordinarily expect either debater to convince his adversary, but because bystanders are occasionally convinced, and more especially because one's understanding of his own ideas and of his opponent's ideas is mightily clarified by seeing what explanations of those ideas have to be given in meeting the objections of the unappreciative. I love clear-cut ideas, and would get myself a complete set of them in two weeks if I could.

For this reason I like best to talk about things concrete and definable. I would rather publish two paragraphs in favour of making coins octagonal, so that they should not annoy us by rolling, than two pages on the grandeur of the individual as the true inspiration of vital art. I am afraid that my fondness for formulas may get me into trouble in a paper which appears to have declared war on formulas; but I have for some time had too much peace to suit me. So far as I see, the most effective fight against worn-out formulas has always been made by those who were ready to offer counter-formulas at once, such as Jesus Christ. Arnold Toynbee said "Languor can only be conquered by enthusiasm, and enthusiasm can only be kindled by two things: an ideal which takes the imagination by storm, and a definite intelligible plan for carrying that ideal into practice." The words ought to be printed in italics in all text-books of rhetoric and psychology, with the title "Toynbee's Law." Observe, it is not denied that a striking presentation of the ideal without the definite intelligible plan may win a vast deal of applause, particularly from that part of the population that objects to hard thinking; but in the morning there is nothing left of that applause except a reputation for eloquence. The action which ought to follow (was not this what Demosthenes meant by naming action as the first, second, and third consideration for an orator?) does not come. This is the reason why there can be such a flood of supposedly effective speaking and writing, with great audiences of idlers, and so little done in consequence of it.

The reason why definite plans of social reform are so often ridiculous is not that the demagogue with a plan is at all a shallower thinker than the demagogue without a plan, but that the man who makes a definite proposal makes it possible to prove the wisdom or folly of his ideas. For this reason the man who seeks applause, and who does not care to have this applause take the form of practical discipleship, does well to avoid definiteness; but the man who seeks for truth, and who wants to be corrected if he is making a fool of himself, does well to put his propositions in definite shape for convenience of proof or disproof.

As a fundamental principle of social order, I believe in letting every man have the constructing of his own life, with voluntary co-operation but without compulsory co-operation. We commonly call this liberty, and formulate our demand as Herbert Spencer's law of equal freedom. It strikes me that there is a bit of a fallacy here. Just as some of our friends, in their rage for simplification, reduce all human motives to the one impulse towards pleasure, not only setting aside all moral motives but setting aside the fact that the impulse away from pain is not an impulse toward pleasure—that nature gives them different functions, assigning the pain motive to things that our safety requires us to do at once, and the pleasure motive to things about which we may take our time—that the effort to escape pain as far as possible is not practically compatible with the effort to secure as much pleasure as possible—that the two are so disparate that you cannot add the pleasures and the negative of the pains together into a total which we should try to raise to a maximum, any more than you can add together a girl's beauty and her intelligence and select as bride the girl who has the largest total—just so the same fondness for simplification leads us to say that a man infringes my liberty when he slaps me on my right cheek, and that our objection to this action is based on our loyalty to liberty. He does indeed infringe my liberty in so far as he compels me to pay attention to a matter not of my choosing; but that is no more than is done by any man who accosts me by my name. Jesus' well-known advice to turn the other cheek is meant simply as a way of insisting on the maximum of liberty: I am presumed to be concerning myself with something that is more to me than a slap on my cheek, and I am not to let myself be so far enslaved by the aggressor as to be jostled out of my self-determined line of thought and action into a line determined by him. Which is very sensible in the case of a single slap; and it is mere reasonableness, not sophistry, to note that Jesus says nothing about a series of slaps wherefrom there results more interruption to one's work in the continuance of the outrage than in stopping to knock the impudence out of the fellow. Yet, whatever course of action may be recommended to the sufferer from his personal standpoint, I hardly expect anyone to contradict the proposition that as between man and man the merits of a slap in the face are identical with those of a violation of liberty. That is, a man equally insists on having the control of his own personal life whether liberty is involved or not. In a sense this is fundamental to what I am starting to say: in another sense, nothing depends on it; if a man insists on classifying the slap as an invasion of liberty, all I need ask of him is that he will impartially give the idea of liberty the same breadth of application in considering the points that follow.

Call it liberty or not, one corollary follows from this principle: we must not let the acknowledgment of any right, claim, or whatever you may call it, be determined by counting noses. Otherwise I am not aware that a way has been found to prevent my life from being altogether dependent on my neighbours' preference. One may, to be sure, divide liberty into water-tight compartments, and allow freedom of religious creed without allowing freedom of international trade; but in regard to each individual point the alternative still holds—either I must be free to attempt to cure diseases without satisfying the majority that I am on the right track, or the freedom of attempting to cure diseases does not exist except for those who agree with the majority.

I hold that when one person injures another by aggressive disregard of these principles, the injured party may justifiably use a reasonable amount of violence in repelling the aggression. The word “justifiably” need not, for the purposes of my argument, mean more than that you can get a workable social equilibrium by counting on this as a thing that he is likely to do and is to be permitted to do, while you cannot get a workable equilibrium by undertaking consistently to negate such use of violence. What amount of violence is reasonable, is a question fortunately irrelevant to my present purpose.

I have frequently called people's attention to some of the revolutionary conclusions which follow from these premises; and sometimes the people have replied by challenging me to produce a list of the applications of my principles to all the most fundamentally important things which men may do to each other. I thought I saw how such a list could be made useful, and a while ago I tried to compile it. Much of my work went swimmingly, for it was nothing but writing down propositions already familiar. But I found also a number of points in which I could not conceive of a practical social order getting satisfactory results from what I had accepted as the orthodox views of my school of thought. After worrying a while over this state of things, I found that my points of special trouble seemed to be related to each other. And at length I concluded that we—I and my allies—had been failing to apprehend the application of our principle to a very important part of life.

The thesis to which I was thus led is this:

If one person injures another by making the material environment unfit for that other's use, the injury should be regarded as on the same level with a direct assault on another's person or on the products of his labour. I say "material environment," meaning such things as the air, the water, the hosts of birds and beetles and bacteria; not the social environment.

I do not claim the honours of a first discoverer. Herbert Spencer made this a chapter in the new edition of "Social Statics." But, as the insertion of that chapter seemed to be part of the process of cutting the radicalism out of "Social Statics," he got very little hearing from radicals; and I never appreciated the value of the idea until I re-discovered it for myself.

It will be apparent why I expect contradiction. In assenting to the use of violence for the repression of this kind of injuries, I am in danger of upholding the enforcement of a whole series of laws on which we friends of liberty have always looked with the greatest contempt: game laws, public health regulations, Berlin police restrictions of piano-playing, and the like. However, if have regard for consistency I shall not uphold indiscriminately so inconsistent a mess as these laws now are; and if I have no regard for consistency, logic cannot drive me to uphold anything whatever; so I advise my angry friends to wait a fortnight or two and see what particular applications I make of my principle, before they decide at which part of my body to aim their shots.



II. — THE CLASSES OF INTERFERENCE.

MY thesis is that if one interferes with another's opportunity to utilize the resources of the world the injury is of the same class as an assault on the person or property.

My reason for wanting to classify actions at all is the need of co-operation. I want to make what I can of my own life. For this it is essential that I should not run blindly into antagonism to my neighbours and exhaust my time and strength in such antagonism. So far as I can come to a friendly agreement with them by which I shall know which acts of mine they will resist and which they will not, it is an essential economy of strength that I should form such an agreement—which involves a classification of acts. So far as I wish to insist on doing any things which several of my neighbours wish to insist on resisting, it is still more essential that I should reinforce my strength by co-operation to such an extent as will enable me to beat my enemies. But for such co-operation a classification of acts is in the highest degree essential: if any set of men proposed to stand by me whatever I did, I should expect them to take their pay by more or less enslaving me to their league. To list the acts that I am willing to back and that I ask to be backed in, and see what sort of agreement I can make with those whose list is nearly the same as mine, seems more practicable.

One of the greatest advantages of the defenders of the existing order over its upsetters is that the defenders have a workable agreement as to what they will defend. I desire to be one of the upsetters; but I do not see that I shall upset anything unless I can get the co-operation of enough others to constitute an upsetting force. And this won't work unless we can set down in black and white what we will co-operate in: if we depend merely on all being inspired by the same spirit of liberty, we shall find in the middle of our first undertaking that each of us is knocking out the wedges that his neighbour is driving in. 1 am attempting, therefore, to supply the indispensable prerequisite of any revolutionary movement by defining the objects to be attained. Of course experience will be the best teacher: but, as natural scientists know, in order to be taught by experience you need an antecedent theory on which you can inscribe experience's corrections—somewhat as Francis Bacon says that a council will make more progress by starting with a written proposal even ii they are destined ultimately to reject every point of that proposal. Besides, in those matters for which co-operation is necessary we shall never get so far as to have any experience if we do not first have enough of an agreed programme to carry us through the preliminary stages.

It is an ordinary experience of humanity—and the most learned need not be so snobbish as to claim exemption—that a definition in abstract or general terms fails to convey so clear an impression as the citation of specific examples. Also, I am as much interested in seeing what particular things my principle will carry me to as in defining the principle itself. For both reasons I ask attention to a sample case and a bill of particulars.

New York City begins to complain of Albany and Troy for sending sewage down the Hudson. New York is right. John Doe of New York, if he wants to bathe in the river that runs under his windows, or to sit by its side and smell fresh air, or to wash his floor with a bucket of its water, has a just claim to find that water free from artificial depravation. The fact that Richard Roe of Poughkeepsie has long been dumping his slops in that water does not affect the fact that every fresh dumping of those slops is a fresh assault on John Doe—no more than the antiquity of the Russian government establishes the rightfulness of the traditional methods of that government. The justice of Doe's claim is not dependent on the fact that there are a great many of his neighbours making the same claim, or that they are organised into a municipality, or that they hope to get a statute enacted in their favour. The importance of his claim is indeed greatly affected by the fact that the land where he lives is so crowded with neighbours as to leave hardly any place except the water for the satisfaction of that part of his personality which demands open-air life and nature; but even if he had at his back the primeval woods of Manhattan, or the farms of old New Amsterdam, the condition of his water-front would still be no negligible matter to him.

So in any other case where natural resource is, in the absence of artificial restriction, free to all, any person who desires to use it is injured by anyone who bars him from its use, or impairs the resource or annexes an inconvenience to its use. By saying "free to all" I intend to side-step the land question: in an unappropriated country a garden-plot or millsite is not free to all in the plural, but to anyone, it cannot be utilised by one and remain open to others at the same time. The land question calls for separate consideration. Since in many cases a man's convenience is greatly served by disregarding this principle, and in some cases the gain in convenience will amount to more than the injury it would seem desirable that the penalty should consist in a payment of actual damages to the injured; then a man would have the option of stopping his nuisance or paying for it. I think, however, that the men who say "The little damage this may do to anybody is of no importance compared to its usefulness in our business" would in most cases suddenly decide to stop the nuisance if they were presented with such a bill of damages as could be practically brought in if even half the aggrieved were associated to take joint action in the matter.

The main particulars under this head, I think, would be pure air; pure water; right of way over such lines of travel as are indicated either by custom or by special intrinsic convenience; along such rights of way, light (the cutting off of natural light can in general be made up by artificial light, providing it is thoroughly done), the absence of such artificial glares as demonstrably cripple the eyesight either momentarily or permanently, and under some circumstances unscreened freedom of view; freedom from the artificial breeding of pernicious or annoying animal or vegetable life, such as flies, mosquitoes, hens that run in a neighbour's garden, weeds, disease germs. If it is shown that by keeping an unscreened manure-heap Roe breeds flies that are an annoyance to Doe, the question whether the flies carry disease is not relevant to the fact that here is invasion; it is only relevant to the size of the damages that may be claimed. The size of Doe's damages would be found by seeing how much of a nuisance the flies were to him (if it is agreed that they really are disease-carriers, then the fact of thus threatening him with disease is an injury whether actual disease results or not) and how large a part of his flies Roe contributed. If Doe, having first cleaned up his own premises, chose to claim damages from all fly-breeders in the neighbourhood at once, then the burden of apportioning the particular shares of his damage to the individual breeders ought to fall on the breeders and not on him; how far it could in practice be made to fall on them, I am not sure. If it is shown that the known prevalence of tetanus germs in the earth of some special localities, such as Brooklyn, is a result of the burial of persons who died of that disease, then it is an injury to everybody in the neighbourhood to bury a victim of tetanus anywhere without either cremating or embalming.

Another and a less clear application of this principle is to those acts which offend one of the physical senses. As to these, offences to touch and taste may be set aside because, so far as they can attach to the use of a natural opportunity open to all, they will follow the analogy of smell, sight, and hearing. The public generally regards a bad smell as a sign of unwholesomeness in air for breathing; this judgment is so commonly correct that it is neither practicable nor desirable to get the public in general to look at it otherwise; besides, the creation of a bad smell about (for instance) a highway, even if the smell is concededly harmless to health, bars everybody from using that highway except under penalty of a physical pain; the passer cannot escape this penalty by turning his nose another way as he passes. For these reasons an offence to smell should be treated on the same principles as a poisoning of the air, though of course the two injuries are not equal in seriousness. The last reason given under smell applies almost equally to objectionable sounds, except that the pain is commonly psychical rather than physical; and a nuisance of sound is apt to affect matters more important (according to current standards of importance; I do not know what other standards we can use) than mere comfort; so let hearing be treated like smell. There remains sight. I would say (setting aside actual dazzling as something else than a mere offence) that an offence to the sight should not be regarded as an assault on a man's right to a chance to enjoy the world. For, in the first place, an offence to the sense of sight is never (unless in the case of obscenity; of this later) an injury to anything but mere comfort; in the second place, it is more thoroughly impossible to define offence to the sense of sight than to define offences to any other sense; in the third place, the person who is offended by any sight has very often the option of shutting his eyes or looking elsewhere; in the fourth place, a requirement that one should not offend a neighbour's eyes would shackle a man's life quite intolerably if he had to look out for all the tastes that there are.

Doubtless much of the above is not yet clear of the inconvenience of generalised language. Also, at many points in the list obvious difficulties suggest themselves. Hence in my next I will step further into details.

STEVEN T. BYINGTON.

 

III.—CERTAIN CONFLICTS OF INTERESTS.

I HAVE stated my belief that in order to get a workable and tolerably satisfactory social order we must recognize every man's claim to enjoy in unimpaired form those resources which the material world naturally offers him, and that where one is not allowed such enjoyment it is reasonable that one should make the interferer pay. To complete my statement 1 ought to add that it is equally necessary to recognize every man's claim to the liberty of removing such unfriendly manifestations of nature as he may meet with—destroying pestilent living things, removing obstructions in pathways, protecting his house and crops against floods, and, probably, clearing away such accumulations of inflammable matter as make the ground ready for the rapid spread of a forest fire.

This opens an immediate prospect of conflict with my first statement. The most obvious conflict, perhaps, is in the matter of living things. Of course nobody but a Buddhist or a Hindu would object if by some inconceivable invention we could make a sudden end of all insects that suck human blood; but the British poultry-raiser wants liberty to exterminate the foxes from England as the wolves were exterminated, while the sportsman insists on preserving the breed of foxes as a resource for sport; the American forester feels the need of preventing beavers from multiplying lest they injure his forest, while the fur-trader and the admirer of nature's wonderful works would like to see a beaver-dam on every stream; above all, the general preservation of bird life is urgently necessary for the prosperity of agriculture, while most birds, especially of the most numerous species, are injurious to the agriculture of one or another individual. Nobody doubts that the bobolink is a blessing to the farmers of his summer home in New England, even leaving out of account his aesthetic value for a combination of strikingly beautiful plumage and supremely beautiful song; nobody doubts that he is a curse to the rice-fields of South Carolina at a season when he has neither fine feathers nor song. The South Carolina man's liberty to protect his rice-fields is exercised to the serious detriment of New England.

Yet I do not see but that South Carolina must have this liberty. If New England wants to preserve the bobolinks, New England must find a way to make South Carolina willing not to shoot them. Since it is rather Utopian to expect that the population of South Carolina will in a body refrain from shooting out of motives of courtesy and neighbourliness, New England must devise some plan by which New England's interest shall be South Carolina's interests.

It is unlucky that in this matter the most urgent problem is the most difficult. The far less important question of the preservation of quadrupedal wild life is much easier: let the man who wants to preserve deer have deer on his own estate—how he gets that estate, and on what terms he holds it, are questions aside from my present purpose—and let him put around his estate such fences as he is impelled to erect by the knowledge that if the deer trespass on his neighbour's farm the neighbour may shoot them or claim payment for the damage they have caused or both. Of course the field is easily open for thirty sportsmen to buy adjoining farms and treat all their homes as a single deer-preserve, or to pay a neighbour a hundred dollars a year for acting as a member of the preserving association if the neighbour does not on his own account care to; and I do not see why such an association should not even be allowed to put gates across public roads unless the deer's horns become a serious danger to the lives of people traversing those roads. As to beasts too small to be easily fenced in, they will usually keep up at least a moderate number where part of the population are friendly to them. Only, while the friend of squirrels certainly cannot be required to kill off the squirrels from his place, if he interferes with his neighbours killing them off he ought in reason to pay for such damage to the neighbours' corn as this interference may cause. So he will if he interferes with his neighbours breaking up their breeding-places, even though by breaking them up the neighbour would have made himself responsible for much damage to the works of the man who helped the squirrels. This last point becomes one of great importance in the case of mosquitoes. The only practical way to make war on mosquitoes is to destroy or poison all their breeding-places over a considerable area of country: to do so may be a hardship to the individual whose special line of agriculture or enjoyment of nature is interfered with, but if on that account he bars people from doing it there is no reason why he should not be made to pay a reasonable valuation of the damage caused to other individuals by the mosquitoes that would have been destroyed but for his protection. And this will surely bankrupt him.

Of course, where human life is threatened—where the stag or boar of the game-preserve is of murderous temper and is not kept under restraint, or where the mosquitoes are habitual carriers of a deadly disease— anyone who can suppress the threatening beast may be expected to do so, and to reject any offered pecuniary substitute as insufficient. At least, if anyone chooses to do so it will be hard to make out that his action is unreasonable.

Now how if instead of mosquitoes we have microbes, and if their breeding-place is in the human person? A is dangerous to those whom he meets because he has in his person the germs of a disease (call it scarlet fever) which may pass to these others. B undisputably has in his person a natural breeding-place for the germs of another disease (call it smallpox); if the germs get into his person and breed there, they may infect C; C believes that the chance of the germ's breeding in B's person can be greatly lessened by giving B a certain treatment; but B is unwilling to undergo this treatment, because it is distasteful to him, perhaps also because he fears bad incidental consequences from it, and perhaps also because he does not believe in its efficacy. C wants to defend himself against the germs that A and B might bring; A and B reply that if they are not to have control of their own persons, in the narrowest sense of the term, they do not see where liberty is to begin.

We can doubtless agree that the reckless disposal of the germs after they are separated from the body may be an aggression. the act of one who scatters tuberculosis germs on a sidewalk does not differ essentially, it would seem, from the act of one who drops arsenic into a spring from which drinking-water may be drawn, if the two are equally conscious of the probable consequences. Then I think it might be agreed that it is aggression for one to walk on a public street while he is involuntarily throwing off germs which will float in the air till they infect another, or while it is certain that flies which light on his skin will pick up germs suitable to infect the next person on whom the fly lights. But I do not think it is an aggression for one to run a risk of Incoming a breeding-place of germs. The interference with my health if my neighbour goes unvaccinated is in any case highly problematical; the interference with his person if I vaccinate him against his will is not problematical at all. We shall never get aggression minimized by using force in resistance to the threat that a threat may sometime he made. It may be added that nothing is more desirable than the accumulation of unquestionable evidence on every aspect of the vaccination question, and that compulsory vaccination interferes with this by giving many people a motive to conceal the fact of non-vaccination and thus vitiate the statistics. And, while I am willing to agree that the statistics are already adequate to prove the efficiency of vaccination substantially as claimed by its friends, and that the allegation of bad incidental results from vaccination has not yet been sufficiently sustained, I think on the other hand that this matter of the incidental results of vaccination deserves more study than it has yet received. Also, while there are some people whom no evidence could convince, it is easily supposable that a larger percentage of the public would be convinced of the merits of vaccination if the evidence, which I am acknowledging to be adequate, were more obviously free from suspicion. For such reasons I wish it might become possible to collect statistics on vaccination free from the distorting influence of compulsory vaccination laws.

The application to venereal disease seems clear enough. If one who knows that he bears the contagion exposes another person to it without warning that other person, it is an assault. Likewise, if the bearer of the contagion has reason to suspect its presence and wilfully neglects to obtain assurance. But this is no sufficient ground for precautionary interference with those who have no reason to suspect themselves.

Another obvious conflict between the claim to retain natural resources and the claim to do away with natural disadvantages is in the case of land and water routes of travel. One wants a navigable channel from east to west, another wants a road from north to south uninterrupted by water. It will doubtless be undisputed, as it has been undisputed, that the maker of the new route should provide the necessary bridge for keeping open the old.

STEVEN T. BYINGTON.

 

IV.—THOROUGHFARES; AND PISCICULTURE.

The mere demand to use a route may involve a conflict of claims, apart from the question of barring one route by opening another; but there seems to be nothing puzzling about most of the conflicts so arising. Where two people are using the same right of way, each must facilitate the other's passage as much as possible; fortunately men are already as familiar with caring for their neighbours' rights in this respect as in any. In the comparatively rare case where two railroads require to go through a pass too narrow for two tracks, any railroad man can arrange for both to use the road if once he is assured that his own line cannot monopolize it.

A tide-mill is a form of industry which cannot be carried on anywhere without putting a dam in the way of navigation; there must be some truth in the counter-claim that the tide-mill also helps navigation by slackening the current, but I do not know how much; on a stream that carried almost exclusively export cargoes however this might even be an additional evil. The tide-mill problem can be better solved when the rising price of coal has led to the building of more tide-mills than are now legally permitted. In the absence of the experience to be thus gained, we can at least say that the builder of a tide-mill must provide his dam with all necessary weirs and locks and operate these gratuitously, putting himself to an expense which I suppose might become prohibitive on a river carrying a great deal of commerce—on such a river as the Thames I take it that his dam would be nothing but locks, all going at once. Also, that the dam must be high enough up the stream to allow all possible use of the mouth as a harbour— there could rarely be a motive for putting it lower anyhow. Under these conditions it seems to me, till I have such information as few men are to-day competent to give, that the building of tide-mills should be a free industry. The higher coal goes, the more we shall want all sources of power; and a single lock on a river is no such great obstruction to commerce at best.

Another question of thoroughfares is that of roadways artificially built for general free use. We profess to be speaking of natural opportunities, but in practice we shall hardly find it possible to separate this problem altogether from that of opportunities artificially created with the intent that they be open to the public in a fashion more or less analogous to that of natural opportunities. Of such things the most obvious example is a paved public road.

Of such artificial opportunities that is true whatever is true of private property in general, so far as the special conditions of the case do not require specific exceptions. The reason for having such an institution as private property at all is that I sometimes work with the intention of producing a particular result, that the satisfaction of my work is spoiled if somebody steps in and starts his own work on the same thing in such a way as to prevent my work from producing its result, and hence that if the boys insist on stealing my melons I shall positively get a hive of the most irascible bees I can hear of and set it in my melon-patch. Also, of course, that I can raise more melons for myself than I could trust these boys to raise for me if we were supposed to be all working selflessly for each other; but I am not sure that this last, which is the motive oftenest spoken of, is in fact the strongest. Now the men who paved a road for the public to ride on wanted their work to come out in a certain way; and if somebody interferes with its coming out in that way, they will have the same motive for complaint that I have when my melons are stolen. If the creators of such a public utility have not got in the public's way, there is no reason why they should not, if they choose, keep the same absolute control as in the case of their other property. If they choose to build a free public library and refuse to let red-haired people use it, well and good: the red-haired suffer no wrong, for they would have had no library there if these fools had not built it. But if they refuse to let a red-haired man walk on the road they pave, they cut him off from a walk which he could have taken with some satisfaction if the ground had been uncared-for, and he has a grievance. On the other hand, if they have built a good road for horses and it will be torn to pieces by motors, they have a grievance against any motor that runs on their road unless the motorist will do an amount of repairing that corresponds to his damage.

Our friends the game laws come up again under this head. The American lobster is considered such a dainty that it is in danger of extermination. Here step in a number of men who go into the business of raising infant lobsters and stocking the coast with them to keep up the breed. (It happens just now to be the United States government; but it might, and at some better future day it will, be a piscicultural association which gets its money honestly.) Their work is not thought to have a hopeful prospect unless the young lobsters are allowed to grow to the age at which they reproduce their kind. The fishermen are grateful for all new stock, but are not disposed to show their gratitude by sparing the lives of the half-grown lobsters, especially as their customers like these best of all.

As a general thing, if one man finds a form of wild life most useful in life and another finds it most useful in death, I do not see how the first man is to inhibit the second man's ravages except by merely permitting his preferences to override the other man's; if we are to plan a human society with the least possible overriding, the birds and blossoms will have to suffer till there is found some other method of protecting them than a direct prohibition of destruction. But when the life is no longer wild in the sense of being the spontaneous growth of the non-human world, but is the universally-welcome product of human industry directed to the manufacture of such wild life, then the industrious producers have the same grievance against one who cuts off the fruit of their work, exactly the same, as if they had not intended that this fruit should at its maturity be for the free gathering of everybody.

We have not quite yet, probably, come to the point where the lobsters of the New England coast can as a mass be considered to be the product of the pisciculturists' labours; there are a considerable percentage of aboriginal wild ones left. But we are approaching that point; and when we get to it, it will doubtless not be beyond the power of science to demonstrate the fact. When it is demonstrated, I think the pisciculturists can claim to be merely defending their own labours if they enforce any restrictions on lobster-catching that may be necessary to the preservation of the breed in its desired numbers. If there were two piscicultural associations both working in the same field, but not agreeing on the amount of restriction to be enforced, it would be the business of the more rigorous restricters to prove that the stock was dependent on their cultural activities and would go to the dogs if no more young were put in than their rivals furnished. If any persons who want short-lobster fishing to continue will show that they are providing sufficiently for the upkeep of lobsterdom, then nobody else can reasonably claim to stop this fishing on the ground of the work he is doing in the same cause.

If (as will hardly happen in the case of pisciculture, but might easily happen in the case of the roadway if there were freedom of competition) there are two claimants for the privilege of maintaining the public convenience, and both cannot maintain it at once, I do not see but that the one which was first in the field must have the preference.

I am not fully satisfied to leave the game-law question in this shape. The trailing arbutus, New England's most admired spring flower, is in danger of being exterminated by its popularity, and nobody has yet discovered a way to propagate or cultivate it. But I do not see how to provide protection for the arbutus without giving up the rule of acting as if one man's wishes were as good as a dozen's; and when I see the present consequences of not insisting on that rule, I think leaving the arbutus to its fate is the lesser evil. Perhaps we can persuade the public to regard the purchase of arbutus bouquets as unpopular.

STEVEN T. BYINGTON.

 

V. — MAINLY ON OFFENSES TO THE EYE.

UNDER the head of pure water, it appears to me that bathing in a river or lake, if it is not receiving such special care as belongs to a water-supply reservoir, cannot be reckoned as a pollution, because an open river cannot be supposed to be in such a state of purity as bathing would impair. One does, indeed, hear of the pollution of the Ganges water by the bathing at Benares; but, until I see the testimony of a competent specialist observer, I am inclined to doubt whether—even if the running of sewage into the river had first been stopped—the abolition of this bathing would make the Ganges below Benares a perceptibly better river to live by. Of course what I said earlier about the isolation of persons carrying known disease-germs applies to the bathing of such persons.

As to offenses to the sense of hearing, we must not regard as invasive any noises which, by their use as public warnings, are practically necessary for the protection of life and property.

Of the points that I had intended to speak of, I think there remains only that of offenses to the sense of sight. Doubtless some other things may seem to others to require special attention. For instance, if I were a tobacco-smoker I might find difficulty in my assertion that the creation of an offensive smell in a public place is an assault on those who happen to dislike the smell. Not being a smoker nor any friend of the weed, I find myself incompetent to present the argument on that side with sufficient appreciation to develop the force which it may doubtless possess; I must therefore leave it to smokers to make their own argument in favour of stenches, and I will read that argument with as much open-mindedness as I am able to bring to it.

As to sight, we are continually hearing of the crime committed by those who offend sight in this or that way, and of proposed legislation to stop such offenses. A little patience with some of these crimes may be recommended. A few years ago we heard much of the atrocious artistic crime of spoiling the sky-line of New York by sky-scraper buildings. To-day, after the public has taken a very short time to change its mind, we always hear that this square-toothed sky-line is New York's greatest artistic merit. I take credit to myself for having thought that skyline a good thing while the opinion voiced by critics was most loudly condemnatory. At present there is a movement for the restriction of further skyscraper building on the ground that the supply has got ahead of the demand and that they cut off their neighbours' light. But if this movement is successful— as it well may be, since it has behind it the money of those who already own buildings and feel that they have too much competition—it will not mean that critical opinion is on the side of those who once wanted to suppress them for beauty's sake.

At the present moment a large section of the public is saying that if any offense to the bodily senses constitutes an assault it is the exhibition of advertisements. We have for some time had a vigorous campaign against open-air advertising. Advertisers seem more inclined to satisfy the clamour by gradually improving the artistic quality of the customary advertisement than by giving up the practice. I think they have the right solution. I agree with H. G. Wells that it is no calamity at all to have urban walls variegated by these "splashes of colour"; and even as to suburban scenery, I prefer to make the best of the blossoming of these remarkable flowers rather than to undertake their extermination. Flowers, it must be remembered, are the advertising of Nature; all their colouring is for this purpose exclusively. Give the new species time to evolve, breed it intelligently with a view to its improvement, and, considering the progress it has already made, I do not see why we should not have a real adornment in the end. It is partly a matter of what you have made up your mind to dislike. To me a wayside stone painted with “A's Liver Pills” or “B's Tobacco” or “C's 27 Stores” is the same as if it bore any other yellow-and-black lichens, and does not suggest the liver or tobacco or stores at all; I disregard these over-familiar words as a thing that does not concern me. If I fail to take the same attitude toward whisky signs, which generally stir me to some hostility, it may be partly because I have devoted less time and energy to opposing patent medicines and tobacco than to opposing whisky, but I think it is mainly because I was born and bred in a prohibition State where whisky dared not show its head, so that I d id not in childhood acquire this happy indifference to signs of that sort. Do not mistake me as thinking that the advertisement-flower should flourish without restraint; I know it is a weed that needs to be kept in check; but I do not think we need to go and hoe it up on the land of a man who chooses to cultivate it.

There remains a single point, doubtless the most difficult of all if we are seriously trying to formulate a scheme of social order that could be made to work amongst men now living. It relates to the offense of obscenity—or alleged obscenity, for part of the difficulty is that we are not near to having unanimity on the question of what constitutes obscenity. I think its difficulty deserves to have a chapter to itself.

STEVEN T. BYINGTON.

 

VI. — THE QUESTION OF OBSCENITY.

AS to obscenity, it will be said with much plausibility that an obscene exhibition in a public place makes it impossible for a person—or for many persons—to pass that way without suffering a penalty more serious than the mere necessity of enduring something distasteful. I reject this argument, not without having considered it.

Let us define our terms. The popular conception of obscenity (and the legal conception too) covers two very different things: first, the disgusting; second, that which stirs sexual feeling. The argument which I have just described as “plausible” cannot apply to the first of these two except in so far as certain sensitive people are moved to physical nausea by certain sights. I never heard of an actual case, however, in which a person who had eaten a good meal lost it by looking at anything publicly displayed, or in which anyone was saved from such an experience by the restrictive power of laws against obscenity. I conclude, therefore, that we do not need juridical defence on this side, and that we have now to do only with obscenity in the other sense.

Our experience with the laws against obscene literature teaches us that it is impossible to define obscenity so that a man can know, in numerous cases, what a court will hold to be obscene and what it will not; or even so that two courts can be counted on to agree with each other in their decisions on the same book. We have not merely the same uncertainty which the law exhibits in regard to actions which are in other respects near the dividing line of lawful and unlawful, but a much greater degree of uncertainty. An experienced prosecutor under the anti-obscenity laws eliminates the uncertainty as far as possible by learning the personal dispositions of the judges and bringing his case before a judge from whom he can expect favour. (My only authority for this statement is the autobiographical reminiscences published by the eminent prosecutors themselves, or by their friends on their behalf.) The net result of all this is that a man of ordinary prudence settles the question by regarding as probably legally obscene everything that opinions might differ on, and so the laws produce practically the effect of a prohibition of all such matter, to the considerable injury of the public. The mischief would be less, of course, if the range of difference of opinion on this topic were not so frightfully wide. But all this is directly against the principle that a man should be treated as innocent till those who know the facts can agree that he is guilty.

It appears, however, that it is found easier to define obscenity exhibited to the eye than obscenity in words; so the evils of the laws against obscene literature would not be absolutely duplicated by recognising it as a form of assault when an obscene sight is forced upon an unwilling person's attention in a public place.

But I observe that there seems to be no particular disposition to make obscene displays to the public in general. The substantial evils which Mr. Comstock works to suppress are those of the underhand circulation of obscenity. The men against whom his crusade is declared are in the business for cash, and make their money by not letting a man see their wares till he pays. If there were in even a few persons a disposition to inflict obscenity on the public, either from malice or from a quasi-religious devotion to such things, or from mere love of lubricity, a small expenditure of time and money would enable a man to annoy the public a deal without particular danger of detection. But nobody seems to devote to such business more time and money than is involved in chalking a short inscription, or a hardly recognisable drawing, on a wall, When there is complaint made of an actually public exhibition of obscenity, the public verdict generally is that the complainant is wrong and the exhibition not obscene.

An instance of this absence of a disposition to offend even a squeamish sense of obscenity is furnished by the matter of sleeves. It is not supposed by the public that there is a law against going with bare arms; and bare arms are so often seen that their lawfulness is kept in everybody's mind. Nevertheless it is not considered quite the thing to go on the street sleeveless, or with sleeves rolled up far above the elbow, unless you are either at work or can make a plausible pretence that it is for work that your arms are bared. And accordingly people do not. The pretence that the arms are bared for work is doubtless stretched a bit in some cases, but on grown persons of either sex one does not see bare arms that are not covered by this pretence. This does not look as if there was great need of any restraint on such exhibitions as are likely to be objected to.

Still, such minimising of the issue is of very limited validity. We have to face the fact that the dominant part of the public finds the acme of obscenity in the mere exposure of the human body to view; and we cannot deny that there would be a good deal of exposure of the whole person under various circumstances if the prohibition were not rigorous. On many a beach and in many a stream boys and men would bathe without ceremony; men at work in hot weather would find that the more of their garments they laid off, the more efficient they grew; careless poverty would economise more and more in the matter of summer covering; a good many persons believe that the tanning of the skin by sunshine is good for the health, and that the reasons for the general custom of always wearing clothes are not worth a row of beans, and some of these persons would want to live up to their principles without retiring to a lonely place when their affairs did not call them to such a place; commercialised vice, which is cautious about its advertising so long as there are laws against it which will be enforced whenever it displeases the police, would try experiments in methods of advertising if this restraint were removed, and the time when my discussion begins to have practical import may well be the time when such restraints are removed. And, finally, it appears that there exists a form of insanity which, while not invariably accompanied by insanity in any other respect, manifests itself in a reckless determination to go naked. It is the same with the impulse toward nudity as it is with other natural human impulses -- any one of them may have an intensity that will be undisputedly picture-making in his domains, a born painter like Leonardo da Vinci would doubtless have the prudence to conform to the law, but a born painter like William Blake would break the law and incur the penalty.

Indeed, substantially that experiment has been tried. In American collections of Alaskan Eskimo art are a few carvings which, instead of following the conventional routine of those tribes, show a marvellous lifelikeness and power of characterisation: if the carving shows a long team of dogs, every dog has his own individuality, his own psychology. Inquiry into the origin of these unique works of genius shows that some years ago there lived in Alaska an old fellow who was universally recognised as weak-minded; for he insisted on spending his time in carving, to the neglect of the practical duties of hunting and fishing; and he did not even do his carving properly in the style that centuries of tradition have fixed as proper for carving, but persisted in making his carved dogs look like real dogs! What could be more ridiculous? So he lived and died despised. Much good it does him that now, when he is dead, his works are being greatly admired by men of a foreign race in a foreign climate. Well, I say that when the artistic impulse is so dominant that a man will thus neglect all his material interests to produce works of art that his neighbours do not even think well of, this is plain abnormality. So I do not necessarily imply anything as to whether the impulse toward nudity is a worthy or unworthy one when I speak of its abnormal development as furnishing, if one wishes to suppress it, all the difficulties of suppressing a mania. The case of Socrates is not far from parallel again. Or take the normal delight in building fires, and its development to an abnormal insistance. Lately there was an incorrigible pyromaniac whose incendiarism was quite unmanageable till, after two or three institutions had failed, he was sent to the asylum at Vineland, N.J. The superintendent had brains, and put him to work as stoker in the boiler house. He never makes any trouble, and is the most useful of servants: he takes the most perfect care of that fire—he is in just the place for which nature fitted him, and no happier man ever handled a shovel than he as he feeds his furnace. Well, just as you must either restrain the pyromaniac or put up with whatever mischief his fires may do, so you must either restrain the gymnomaniac or put up with whatever mischief his nudity may do.

And the question ought not to be, if possible, whether it really does mischief. For if we take up that question we shall have no end to it. The practically important thing is that the point is not agreed on. We have numerous respectable people who believe that the sight of the naked human body, of either sex, has no more inherent tendency to rouse the sexual impulses than has the sight of the body clothed in any ordinary costume, and that if nudity became generally customary among us the ultimate result might well be a decrease of unchastity. This class includes pretty nearly everybody who writes books on the comparative moral customs of different nations, and it includes me. We have still more numerous people, still more respectable or at least still more respected, who hold the contrary view, that to exhibit the naked human person is to force upon a great part of the public an unwelcome but irresistible sexual impulse. Neither of these two classes will readily give up its belief for any argument that present circumstances permit us to bring. And there you are. Our business is to determine a reasonable basis on which people who hold these two views are to live together. If we cannot do that, our discussion is a failure. If we are not proposing a basis on which people can live together without all thinking alike, then our propositions have as their pre-requisite not merely a remote and problematical change in human nature, but an absolutely undesirable change. What I want is a plan by which men as they are can live together in peace. The present is regulated by the threat of violence, is not what I call peace.

A further complication is the prospect of off-hand individual violence. A monument in honour of Heine, with sundry nude marble nymphs, was erected in New York a few years ago. After a little while a man rode up to it on his bicycle in the middle of the night, broke off all breakable parts of the nymphs with a hammer, and got safe away on his bicycle before the police found it out. He was never caught. If a man without clothes tried to go along one of our streets to-day, he would not last nearly so long, in the absence of police interference, as the Heine monument did. If the police undertook to protect him, it is not certain that their protection would be more effective than it was in the case of the monument. As long as the sight of the undisguised human figure is unfamiliar in a certain inhabited place, the person who exhibits it must reckon with a probability of stones and whip-lashes. And if anybody undertakes either the protection of that person or the protection of the public peace, the protector will have

(To be continued.)



[Note: The text actually breaks off in mid-sentence in the original, and resumes at the beginning of the previous sentence in the next issue.]

AS long as the sight of the undisguised human figure is unfamiliar in a certain inhabited place, the person who exhibits it must reckon with a probability of stones and whip-lashes. And if anybody undertakes either the protection of that person or the protection of the public peace, the protector will have trouble. Mr. Tucker, I see, objects to what he imagines to be my views (his imaginations are partly right) on the ground that economy, and the desire to avoid disagreements, will require any rational police agency to pay attention to as few things as possible, and that I would increase the expenses and difficulties by giving the police more things to do. I call Mr. Tucker's attention to the fact that the police are already in the business of saving themselves trouble, and that they regularly do this by prohibiting whatever is so shocking to the feelings of the crowd as to promise to start a disturbance. The result is that whatever the crowd objects to is prohibited by the combined forces of the crowd and the policeman. East-and-west streets in New York are generally not full of vehicles; a woman walks along the middle of such a street because it happens to be a better pavement than the sidewalk; a company of street boys come jeering behind her; the policeman arrests the woman for creating a disturbance. Thereby he saves himself the much more difficult job of handling the boys. The papers print it as an amusing occurrence, not as an alarming one; and every New Yorker who reads it knows that the policeman did just what any policeman would be likely to. That's what you get by making the saving of trouble to the police your guide: by no means a reduction in the number of things that the police arrest for. The present reign of restriction is distinctly the lazy man's way of doing things, and Theodore Roosevelt is eminently characterised by the desire to handle every difficulty in the easiest way. Mr. Tucker should not imagine that by appealing to the desire to save the policeman's trouble he will get anything like what either he or I want.

But laziness will not soon be extinct, and the desire for public quiet will continue to be widespread. Hence the fact that exposure of the person invites fisticuffs will, as long as it is a fact, be a potent reinforcement of all arguments for systematically and quietly suppressing the exposure of the person. And, as it will certainly be a fact till some time after the contrary practice is introduced, any discussion of practical policies must begin by treating it as an unescapable fact.

This all looks as if a workable social order must count it legitimate to let those who object to any exhibition as obscene suppress that exhibition, whatever the exhibition may be, until such time as the human mind shall have undergone a quite unpredictable change. It is time to balance the argument a trifle by reminding the respectable public that if we make any pretence to uniformity or consistency, then the rule must be applied equally where the custom of clothing is stricter than among us, and any Englishwoman who goes with unveiled face in a Mohammedan community where the veiling of women on the street is general must be held liable to the appropriate penalties of indecent exposure. The parallel is rigorously correct. It is perfectly attested that the Englishwoman's face has the same effect on the men of such a community as the sight of a Marquesas Islander's whole person would have on an English street. Englishmen resident in such cities as Lahore declare, for instance, that in driving through the city by a lady's side it is hard to resist the temptation to get off the carriage several times to thrash Mohammedans for the looks that they are seen to cast. If the rousing of such feelings constitutes a public nuisance that calls for forcible suppression, then the wearing of unveiled faces by Englishwomen should be forcibly suppressed in every community where even a large minority are dominated by the classic Mohammedan tradition. If shocking the moral orthodoxy of a majority is ground for suppression, then the unveiled woman should be suppressed where Mohammedans are a majority. If the matter is made to rest on the ground that Lahore is controlled by the English, and consequently English notions of propriety shall rule, then we establish at least one of the points that I want to insist on—that a majority, as such, has no special right to control such things: if a majority and a minority cannot agree on a modus vivendi, the strongest fighting power must have its way.

For it positively cannot be maintained that the English standard of propriety is entitled to preference on the mere ground that its precise grade of strictness is more ideally correct than either the stricter standards or the less strict.- Evidence of such a thing is too utterly lacking. The English standard of decency in clothing is not supported by the instinct of most of the human race, nor even by a continuous uniform feeling on the right little tight little island itself. I suppose by hearsay (I have never been to Europe) the words “mixed bathing” will suffice to shut the mouth of any Englishman who might claim permanence as a quality of the English standard. And it is hardly more than a century since the poet Coleridge saw handsome women bathing naked among men on the beach of a fashionable watering-place on the Welsh coast, and recorded his testimony (valuable as coming from a young man at the most impressionable age) that the effect was not salacious.

I do not see how we can, in the end, refuse to consider the issue which this testimony raises. It is indeed certain that the sight of an unfamiliar exposure of the person will produce on some beholder that salacious effect with which it is popularly credited. But it is not certain, far from it, that this effect will be produced with anything like such generality as is supposed. Granting that we have in the first place a community divided into those who are irreconcilably opposed to the exhibition of the human body and those who are incorrigibly in favour of it, the injury which the former might, on their own hypothesis, receive from such exhibitions would be problematical in extent and in incidence (and a few of the more reasonable of them will concede, in duration); while the enslavement of the person who desires to lay aside his clothes, and who is restrained by force from doing so, is certain and direct. If on the ground of a man's claim to control his own person one protests against compulsory vaccination, or against the prohibition of the liquor traffic, or against any other bit of restriction which provokes a protest, the protester cannot with a decent show of consistency refuse to acknowledge that the privilege of deciding whether one will wear clothes is as fundamental a part of the control of one's own person as is the privilege of choosing one's own medical treatment or one's own beverages. I conclude that it is a sophistry, specious only to those who are antecedently prejudiced in its favour, to contend that the right of self-defence involves a right to make a man clothe himself for fear of the harm that the sight of his body may do.

I seem to have ended with deciding a single detail of the question I set out to discuss. But this detail is so dominant that few will hesitate to let its settlement settle the central question. Besides, if we started rightly by deciding that the claim for restriction had no plausibility except when the obscenity was salacity, then we might now take note that obscenity in the sense of salacity cannot be defined with sufficient certainty to let anybody know what exhibitions a rule of restriction would apply to. The only exhibition to which the advocates of restriction would be tolerably unanimous is the exhibition of the flesh-and-blood human body; remove that, and the demand for restriction breaks up into incoherent discord.

Steven T. Byington.

(End of Series.)

 
  • Steven T. Byington, “On Interference with the Environment,” The New Freewoman 1, no. 7 (September 15, 1913): 121-123.
  • Steven T. Byington, “On Interference with the Environment,” The New Freewoman 1, no. 8 (October 1, 1913): 146-147.
  • Steven T. Byington, “On Interference with the Environment,” The New Freewoman 1, no. 9 (October 15, 1913): 167-168.
  • Steven T. Byington, “On the Interference with the Environment,” The New Freewoman 1, no. 10 (November 1, 1913): 186-187.
  • Steven T. Byington, “On Interference with the Environment,” The New Freewoman 1, no. 11 (November 15, 1913): 206-207.
  • Steven T. Byington, “On the Interference with the Environment,” The Egoist 1, no. 1 (January 1, 1914): 15-16.
  • Steven T. Byington, “On Interference with the Environment,” The Egoist 1, no. 2 (January 15, 1914): 34-35.

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