The public conscience : social judgments in statute and common law

Front matter

Connect

LIBRARY

icut Aiiricnltural

PART I Crimes Against the Person *. 83

I. Illegal — Always Reprobated

Murder 85

Manslaughter 105

Wilful Neglect 110

II. Sometimes Reprobated, Often Not

Accidental 117

Self-Defense 128

Assault and Battery 132

Assault — Self-Defense 134

Duel — Wager of Battle 141

Dueling 142

Euthanasia 145

III. Legal: But Not Always Approved by the Group 146

IV. Semi-Legal 151

V. Doubtful

Assassination 160

Statute and Common Law 164

Attempts to Commit Crimes or Misdemeanors 166

The Natural Law of Killing 171

Part II

International Wrong Always Condemned I. Directly Affecting the Person

Burglary 179

X CONTENTS

PAGE

Robbery 185

Arson 186

Larceny 192

II. Larceny Under Peculiar Conditions of Frontier

Life 194

III. Frauds, Victims Deceived

Swindling 196

Insurance Fraud 197

Cheating 198

False Pretenses 199

IV. Appropriation by Compulsion — Not Physical

Extortion 201

Usury 202

Blackmail 202

V. Breaches of Trust

Embezzlement 205

Bankruptcy — Dishonest 208

Fraudulent Entry 209

VI. Attack Upon Rights of Property in Personality

Libel and Slander 210

Bigamy 217

VII. Rights as Between Two Parties

Ownership of Aerolite 219

Lien 220

Trespass 230

Caveat Emptor — Let the Buyer Beware 235

Contract 237

Nuisance 240

Negligent Destruction 250

Property — Accidental or Negligent Destruction 258

Recovery for Negligence 259

Taxation 260

PART III Preservation of Security

I. Security in Life and Limb

Attack on Colt^ts 270

Authority of the State Courts 271

Quarantine 273

Treason 274

Mutiny 282

CONTENTS xi

PAGE

False Imprisonment 283

Unfair Trials 284

Classes of Cases Which Have to do With Neglect on the Part of Employers, etc 285

Food Adulteration 293

Food Supply 295

Health — Practising Method 297

Nuisance — Danger to Life 298

Public Safety — Explosives 299

Carrying Concealed Weapons 300

II. Security in Preservation of Property

Counterfeiting 304

False Entry 306

Interference With Mails 307

Blue Sky Laws 309

Miscellaneous — (6) Rebating 311

Conspiracy in Business 312

Strikes and Picketing 314

Inventions, Patents, etc 318

Personal — (c) Adultery 320

Seduction 322

Reputation — (d) Libel 323

Libel 325

Libel — or Near Libel 326

III. Public Order (Decency) 327

Decency ' , * 332

Inciting to Murder and Rebellion 333

Decency 334

Sunday Laws 337

Selling Liquor 342

Neglect of Education 343

Public Order and Peace 344

Offence Against the Common Weal ...... 347

The Natural Law of Offences Against Security 349

PART IV Preservation op Liberty

Provisions of the Constitution of the United States

With Respect to Liberty 357

Definition of Liberty 361

Public Expressions Regarding Liberty From Various Sources 362 xii CONTENTS

PAGE

I. Interference With Bodily Freedom

Slavery 364

Peonage 366

II. Interference With Freedom of Movement (a)

False Imprisonment 371

Habeas Corpus 378

Passports and Registration of Strangers 379

Right of Assembly 381

III. Interference With Freedom of Action. — Police Regulations

Police Power — Licenses 386

Equal Protection — Liquor License 390

Police Regulations (2)

Labor Unions 393

Police Power in General 400

Trust Regulations — Monopoly in Restraint

OF Trade 404

Conspiracy — Monopoly 408

Hours of Labor 411

Blacklisting 416

Contract and Blacklisting 420

Restraint of Trade 427

Limits to Property 431

Franchises 432

Public House 441

Contract (Labor Unions) 443

Property Rights in Means of Livelihood 451

Liberty — Trade 452

IV. Interference With Freedom in Personality

Suffrage 455

Liberty in Family Relations 462

Association 465

Speech — Birth Control 468

Miscellaneous 469

The Natural Law of Liberty 470

Introduction

I believe that Mr. Cox has written an epoch-making book, which deserves to alter the tone and method of ethical teaching. My reasons for this faith are:

1. That the idea is essentially new (in this field).

2. That it has come to dominate the teaching of law,

medicine and other studies not fundamentally different from ethics in their aim.

3. That it has signal advantages in the field of

ethical teaching.

I cannot name a single text book of ethics used today which is based on the case method. Books on casuistry, have a somewhat different aim. They give us answers to the question, " What should one do or advise? '' in various imaginary situations presenting moral problems. They do not (so far as I know) offer fragments of real history and ask us independently to analyse them. They lack the flavor of actuality and the stimulus of a call to action.

Illustrations, I imagine, every teacher of ethics and every book on ethics provides. But cases are more than illustrations, for the student and not the teacher decides what the case illustrates. The teacher's illustrations belong to him and obey his ideas. But ethical xiv INTRODUCTION

cases, such as this book supplies, are nobody's property and often manifest in class discussion their own independent vitality.

The case method which Mr. Cox is (so far as I know) the first to employ in ethical teaching, has been used in the Harvard Law School since 1870 and at the Harvard Medical School since 1894. It is used extensively in the Harvard School of Business Administration and to some extent in the teaching of logic (Dr. Sheffer) and of economics. It is the method of experience, for it seeks to bring the student face to face with concrete experiences from which somebody has already learned something in the school of life. Mr. Cox himself used it in his ethical teaching at Dartmouth College and owing to his kindness I have been able to use some of his unpublished cases in my own work with Harvard undergraduates. I am confident that it is at least as valuable in ethics as it is in law and medicine, sharing with them certain obvious advantages and possessing also its own peculiar merits for ethics. Let me illustrate:

(a) It keeps a large class of students busy and interested. A good lecturer can keep several hundred interested but not busy. They are too passive. The lecturer does most of the work and gets most of the profit. If he throws out questions into the class, the advantage is chiefly for the few who answer, rarely for the majority who are silent. With a small class one can keep everyone busy in discussion. But with a large class — one hundred or more — this is almost

INTRODUCTION xv

impossible. In the laboratory where each student has his own specimen or experiment to attend to, many are busy at once, but many teachers are needed for supervision if the class is large.

Case teaching gives each student his own specimen (a legal, medical, economic, or ethical problem) on a sheet of paper and demands that he analyse it, experiment with it and render judgments upon it in answer to the teacher's questions. Each man is kept busy with something tangible and can learn something then and there by his own analysis and reasoning, even if he is not called up by the teacher. The method is almost as useful with 150 students as with 20. As a means whereby one teacher can call out continuous labor from many students at once, it is almost as good as an examination; yet it can be given once or twice a week throughout the college year.

(b) The teacher and the class face together a concrete reality. The teacher cannot entirely control the case as he controls his own illustrations during a lecture. A vividly written case may rear, kick and run away. Quite unexpected interpretations or problems are sometimes discovered by the students who then quiz the teacher as he more often quizzes them. All this adds to the interest and vitality of the hour. The teacher is not handing out all the wisdom nor himself bearing all the burdens of the exercise. Sometimes the case almost teaches itself, — an ideal result. The student attains a real experience — something that takes root in memory — whether the teacher's interxvi INTRODUCTION

pretation seems profitable or not. He studies with his class as well as for them. They must observe and reflect then and there. His place is to egg them to this labor and to suggest useful tools.

(c) For at first the student may be puzzled how to attack the situations presented. He can be helped to pick them to pieces with the tools of analysis and then to reconstruct them in terms of a theory or solution.

" Boil down and restate, " " Enumerate the dramatis personce, " '' Propose alternative solutions, " " Drag up to consciousness the principles and the data taken for granted in your judgment, " " Show up the links in your chain of reasoning. " Such well worn tools as these come to be used almost instinctively when the student has been led to apply them again and again and to see with pleasure how well they work on all sorts of cases.

Observation, reasoning and decision, — that is all there is to law, medicine, geology, economics, ethics or theology, and what we want is to see the student gain skill and sagacity by the actual use of these tools upon the raw materials of experience. By the case method we can actually see that he does it and not merely hope that he will do it in his room or in future cramming.

(d) By keeping back his own opinion and any existing decisions by others until the students have all evolved and recorded theirs, the teacher can add something of the " hide and seek motive " to the interest of

INTRODUCTION xvii

the case itself. In law we can announce after the discussion the judge's or the jury's decision; in medicine, we have the revelation of the autopsy. In ethics we have nothing so cogent and decisive. But when legal cases are used, as in this book, one has at least the verdict of public opinion as interpreted by judge and jury. Moreover, the students are almost always interested to know in the end what the teacher thinks, — even if they disagree. Thus one works towards a climax, as one does in a novel or a detective story, and there is competition in the solutions or the predictions offered by all who take part.

Suspense and competition are valuable adjuvants when we want students to work hard. In lecturing and in ordinary general discussion they are hard to command. In case teaching they spring up naturally.

Law cases, such as make up the bulk of this book, have the advantage of a definite decision (wise or unwise) at the end of each. The corresponding disadvantage is that they cannot cover the whole ground of ethics. Many poignant ethical problems never get into court and cannot be authoritatively decided. No one is more aware of this limitation in the present book than Mr. Cox. Any collection of suitable cases is an enormous labor. Naturally he has not been able to extend his field of search in all possible directions. But he has broken out the first path. It is for the rest of us, following his method, to collect other groups of cases from industry, from the adventures of family life or from the tangled experiences of medicine xviii INTRODUCTION

and of social work. Ethical cases arise on the athletic field, aboard ship, on the stock exchange, in the artist's studio, in trolley cars. Obviously no one man can follow up all these clues. Many people must collaborate and will be tempted, I believe, to do so, when they have read Mr. Cox's book. For he has started a fox that many can hunt, though with the signal advantage that this fox all can catch, while no damage is done to the animal! I predict that many other case books of ethics will follow this one and that in a few years we who are trying to teach ethics shall look back in wonder at our foolishness that so obvious and useful a method never occurred to us or was used by us till he suggested it.

Mr. Cox has kept his own personality and his own views in the background. He gives us the cases with little of comment or interpretation. That is for each teacher and every pupil to supply in his own way and by the light of such principles as he can find. To some timid teachers this will seem a drawback. But in the long run I believe it will increase the usefulness of the book as a collection of human documents which each can interpret in his own way. In class-room use I take it the teacher will work out beforehand suggestive questions and sidelights on each case, often giving out these questions with the case as a guide and stimulus to the class.

Mr. Cox's practice of asking students themselves to collect and bring to class cases more or less similar to his own seems to me admirable both for the students

INTRODUCTION xix

who collect them and for the wider public which these cases may later come to serve. Thus the class which uses the case method will itself be used by the case method to extend its usefulness and its variety.

Richard C. Cabot

Boston, Mass.

May. 1922.

" Doubtless, the most effectual mode of showing how the sciences of Ethics and Politics may be constituted, would be to construct them; a task, it needs scarcely be said, I am not about to undertake. But even if there were no other examples, the memorable one of Bacon would be sufficient to demonstrate, that it is sometimes both possible and useful to point out the way, though without being oneself prepared to adventure far into it."^

'^ We advocate a method . . . which considers objectively the given social reality, studying it in the civilization in which we live, and comparing this with others which we may be able to know. In a word, we demand that one use, in so far as the character proper to social reality permits, the same method which has shown itself so fruitful in sciences which deal with physical reality. Hence, a ' psychological ' or ' moral ' study of the sentiments, however interesting it may be in certain respects, has no part in the science with which we are engaged. Our directing principle is to relate facts, duly analyzed, to their constant laws, and effects duly stated, to the forces which produce them. If the instincts, needs, and sentiments, more particularly the sentiments called moral, are of the number of these forces, a study of given social reality will make us acquainted with the fact, and that, too, in the only way which can be called scientific, namely, by the exact statement and measurement of their effects.'' ^

" A man who thinks in a different fashion from others, even about problems which do not immediately touch upon action and which every one can consider without passion, provokes among those others a certain uneasiness, an astonishment which is not free from ill will." ^

1 J. S. Mill, " Logic," Vol. II, p. 419, 10th ed.

2 L. Levy-Bruhl, " La Morale et la Science des Moeurs," p. 225.

Chapter I Ethics As Science And As Art

Almost any undertaking may be and has been described as a science, just as almost any one may and does call himself a professor.

When I propose to consider ethics as a science it is in the narrowed sense of " ordered knowledge of natural phenomena and of the relations between them." I have in mind also (a) the saying of Svante Arrhenius that "science implies measurement/' (6) the practice of experimental research instituted by Francis Bacon/ and (c) Galileo's practice of searching for the " how " rather than the "why" of things.

We need no account of scientific method. All the educated world knows what it is and admires its efficacy. It has had its hard days in the past when its

1 It need hardly be said that the "Baconian pure induction or mere observation" has been left far behind in what we, none the less truly, term the inductive methods of modern science. Mill has warned us that " the conclusions of theory cannot be trusted, unless confirmed by observation; nor those of observation, unless they can be aflEiliated to theory. It is the accordance of these two kinds of evidence separately taken — the consilience of a priori reasoning and specific experience — which forms the only sufficient ground for the principles of any science so " immersed in matter," dealing with such complex and concrete phenomena, as " Ethology," for which, see below, p. 6.

devotees were not only treated as impious, but were even destroyed in various delicate ways. But why consider that that which is " the ordered knowledge of natural phenomena " can possibly be applied to ethics? There's the rub! for ethics has, heretofore, been forbidden territory to science.

Now the various natural sciences, such as physics, chemistry, geology, biology, etc., have all had their theological and metaphysical stages before they emerged into the positive stage. Every science is ipso facto positivistic and naturalistic. There is, however, a positivistic temper against which philosophers and theologians have justly protested. It is the temper of that science which does not recognize the rock whence it is hewn; for all the sciences have been gradually separated from the more inclusive if less defined discipline known as philosophy. The natural sciences are taught in many places today as natural philosophy, and it were well that we should always recognize the significance of this connection.

Physics and chemistry, as the most exact of the natural sciences, and hence the most dogmatic, are quite apt to forget their origin and to overlook the fact that they are based upon unproved assumptions. Their deeper questions are still questions for philosophy. Still, one must acknowledge that, so long as they were under the tutelage of theology or metaphysics, they made little progress; and the same may be said of the more recently emancipated sciences, which, moreover, tend to split up into subordinate sciences. Thus general biology divides into zoology and botany, physiology, psychology, psychiatry, etc., and each of these in turn becomes more productive when it has set up a household of its own. There are problems in each of the sciences which remain philosophic problems — some would say, chiefly because they are unsolved. Be it so. There are many soluble problems in ethics, I believe, and it is to those that I would see men turn their attention today.

II

Now many writers on ethics have spoken of it as a science; but they have not treated it as such. Many have added greatly to our exact knowledge in ethical fields who yet have not submitted the entire subject of ethics to scientific method. Some recent writers have been intensely practical in their applications of ethics and franker on some biologic subjects than any one heretofore, who are yet quite unscientific in their total attitude.

The greatest name which may be cited in support of this sort of enterprise is that of John Stuart Mill; but it is, of course, quite foreign to its character to claim anything on the ground of authority. We may then say, better, that the argument of Mill in the Sixth Book of his " System of Logic " has set forth in masterly fashion the reasons for according the same sort of treatment to the study of man in society as has been given to his physical nature. He says: ^

2 " System of Logic," Book VI, p. 418, Vol. II, 10th ed.

" If there are some subjects on which the results obtained have finally received the unanimous assent of all who have attended to the proof, and others on which mankind have not yet been equally successful; on which the most sagacious minds have occupied themselves from the earliest date, and have never succeeded in establishing any considerable body of truths, so as to be beyond denial or doubt; it is by generalizing the methods successfully followed in the former inquiries, and adapting them to the latter, that we may hope to remove this blot on the face of science '^ ; and he adds that " the remaining chapters (of the ' Logic 0 are an endeavor to facilitate this most desirable object." He insists that there is or there may be a science of human nature. " Any facts are fitted to be a subject of science which follow one another according to constant laws " ; and he finds that the laws of the formation of character are the principal object of scientific inquiry into human nature, these being deduced from the general laws of mind. " The laws of mind ^ . . . compose the universal or abstract portion of the philosophy of human nature; and all the truths of common experience, constituting a practical knowledge of mankind, must, to the extent to which they are truths, be results or consequences of these."

Mill's " Science of Ethology " is a science of character and of its formation — it corresponds to the art of education; and it will be evident from my strict separation of the science of ethics from the art of ethics why, in spite of his authority and in spite of his good will toward such an enterprise as this, it is not Mill who has most clearly formulated the method of procedure for a science of ethics.

The only writer, whom I know, who has proposed a strictly scientific programme for ethics — if we except Comte on account of his general attitude — is, significantly enough, L. Levy-Bruhl.* In his book " La Morale et la Science des Moeurs," ^ he proposes a plan of study to which I can give almost unqualified adhesion ; though I would supplement it in significant ways. Durkheim ^ is a kindred spirit.

The work of these two brilliant and honest minds has been strangely overlooked in English-speaking circles. Nothing more significant for ethics since the days of Jeremy Bentham and the Mills has been written than the work of Levy-Bruhl. It is a complete programme for ethical science, a work which has gone into five editions in France; yet it is practically unknown and certainly untaught in this country. There is hardly a mention of Levy-Bruhl and Durkheim in contemporary ethical literature in spite of their great influence in Europe. In the International Journal of Ethics, during the entire period of its existence, I can

* The biographer of Comte.

5 Translation by Elizabeth Lee. London, 1915.

^ fimile Durkheim, " De la Division du Travail Social " and "Les Regies de la Methode Sociologique." Cf. also my article in the Journal of Philosophy, Psychology and Scientific Methods, Vol. X, p. 337, " The Case Method in the Study and Teaching of Ethics."

find but two brief and utterly inadequate reviews of their works, works of recognized power but which present a totally new viewpoint in ethics.

The '' Ethics " of Dewey and Tufts was written as a textbook, not as a preliminary book in the scientific study of ethics. Its three sections embrace a historical treatment of human customs and manners/ an analysis and presentation of classic theories in relation to the real problems of life, and a final section which might be called a programme for social reform. It is not avowedly inductive and naturalistic; but it is more sympathetic to the scientific attitude than any actual performance within my knowledge. None of the previously named writers apparently had the intention of making experimental studies.

Westermarck ^ has proposed '' to study moral consciousness as a fact." Sutherland ^ has written of the genesis of morality. Professor Sharp ^° has done valuable work in casuistical studies. Hobhouse ^^ has made a comparative study of ethics. None of them, I think, has initiated a real science of ethics, though scientific method has been used by all, and all have gathered valuable material which the new science not only may, but must use.

■^ There is no substitute for the French word moeurs — although Professor Sumner has nearly translated it in jolk ways.

8 Edw. Westermarck, " The Origin and Development of the Moral Ideas."

9 A. Sutherland, "The Origin and Growth of the Moral Instinct."

10 F. C. Sharp, " A Study of the Influence of Custom on the Moral Judgment." Bulletin of the University of Wisconsin, 1908.

11 L. T. Hobhouse, " Morals in Evolution."

My purpose is so to separate the study of ethical material as subject of science from any conclusions which may he drawn from it, that different investigators may at least have a chance to know what it is that they are agreeing or disagreeing about,

III

The greatest obstacle in the way of a scientific study of ethics is its usual classification, with logic and esthetics, as a normative science.^ ^

Now the course of the centuries has seen the production of not one, but many sciences of ethics on this basis, which is to say, no science at all. If by normative we mean merely ideal, then we may ask whether our science does not become at once an art. The standards are somehow already at hand. All that remains is to apply them in the best and most practical way. But if it is a question how men come to have these various standards, these " types of ethical theory,'' then we have a genetic inquiry to begin with and we may, by classification, formation of hypotheses, experiment, etc., form a true science of ethical theory, as we may have a science of anything whatsoever.

But, I take it, this is not the meaning of those who

12 Rashdall, " Theories of Good and Evil," Vol. II, p. 414. " Logic, esthetic, and ethic are sometimes spoken of as normative sciences, i.e., sciences which set up standards or which deal not siiAply with w^hat is, but with what ought to be. They determine the principles upon which we distinguish between the true and false, right and wrong, judgments about the true, the beautiful, and the good."

protest against ethics as a natural science and claim that it is rather normative. Their protest is against the intrusion of the naturalistic method at all. Seeing the absolutely imperative character of the standard when achieved or realized, it is conceived to have a Minerva-like directness and timelessness of source. This is deceptive. Norms are in all essential respects attained in the same fashion as natural laws. The mere fact that the norm says " ought '' and the law says " does," ^^ does not wholly differentiate them. The natural science method is as applicable to the discovery of the growth of norms as it is to the discovery of laws, though it is true that the individual or group cognizant of these norms has not attained them by an inductive process. It has them, and then it attempts to justify them. It is just my contention that a disinterested inductive study is essential to the discovery of the " how '^ of their acquisition. One may observe likewise that the " norms " of physics are as imperative to the intelligence as the norm of ethics is to the will. The name "science^' is not trade-marked; and we may speak of Christian science and normative science

13 A careful distinction must be made and kept in mind between the law which describes how things do behave and the law which imposes the will of the lawgiver.

" If ethics (la morale) has at the same time to prescribe and to legitimize its prescriptions rationally, if it has to be at the same time normative and theoretic, its imperatives will have to be laws. Thence arises the ambiguous and bastard concept of the moral law, which, on its theoretic side, approximates the law of nature, and on its normative side, law understood in the social and judicial sense ." — Levy-Bruhl .

if we wish; but these are not natural sciences, and neither of them claims to be such. The characteristic of a normative science is that its principles are postulated. It makes no difference whether one be an intuitionist ,a utilitarian, or an evolutionary moralist, since these, however different in other ways, are alike in their method of acquiring the initial position.^* They get it a priori every time; and it is not surprising that, after the lapse of twenty-five centuries, the different theories are no nearer together than they were at their separate beginnings.

Wundt,^^ recognizing " the universal applicability of the purely descriptive standpoint to all departments of human knowledge '^ to be unquestionable, says, " we should still take into consideration that the estimate of the value of facts is also itself a fact and a fact which must not be overlooked when it is there to

15 W. Wundt, " The Facts of the Moral Life." (Transl.) Page 5. Swan, Sonnenschein, and Company. London. 1897.

see. A necessary condition of any such estimate is the existence of human free will. By free will we mean here not a metaphysical faculty, but merely the empirically given capacity of choice between various actions." Faites vos jeux, Messieurs! Here we are again! I suppose that we shall never rid ourselves entirely of this Old Man of the Sea; but he must be locked up, temporarily at least, if there is ever to be any progress in moral science. More of him, later, when we touch upon " The Freudian Wish " of Professor Holt.

" A normative science or a science of human norms "

— what can these words possibly mean? If we have our norms to begin with, there will be nothing left except application of them, and all ethics will become casuistry. But if norms are, as Wundt implies, very much like natural laws, obtained in the last analysis in the same way, one can not possibly have any objection, scientific though his temper may be, to norms as such.