The Individual and the State

One of the earliest comprehensive and systematic philosophical vindications of the fundamental rights of the individual against the state is set out in William Godwin's extremely influential Political Justice , published in 1793.^[7] Godwin believed that existing governments improperly invaded the rightful liberty of the individual in many departments of life; the fundamental freedoms of speech, of publication, of assembly, of conscience, of moral belief and action were all unjustly impeded. Yet there is one conspicuous absence in Godwin's indictment of the state. He makes no complaint about the state's interference with the health or the medical choices of the individual. The silence is not an omission, but merely reflects the realities of England at the close of the eighteenth century. Though there was a state religion, there was no state medicine, unlike in many parts of the Continent. Indeed, the very phrase "medical police"—so common in the parlance of enlightened absolutism on the Continent as a part of Kameralwissenschaft (the science of bureaucracy), and known even in Scotland—was hardly even an Anglicized expression.^[8]

Some two-thirds of a century later, in 1859, John Stuart Mill published On Liberty ,^[9] the classic mid-Victorian philosophical defense of the freedom of the individual.^[10] Fighting what he saw as the tyranny of mass opinion, which he believed was fast being consolidated into a new legislative tyranny, Mill argued for the priority of the individual over the claims of state and society. The fundamental purpose of the state was to protect natural personal liberties, rather than (as in Edmund Burke's political philosophy) to enforce political, religious, and moral allegiance and orthodoxy within a superorganic whole. Mill brought to bear arguments partly metaphysical (individuals had the fundamental right to dispose of their lives as they pleased), and partly utilitarian (self-reliance built character, intellectual dissent stimulated the march of mind, and in the long run these benefited both individual and society). The only ground for curbing one person's liberty, he argued, was when its exercise materially interfered with the free exercise of another's.

Mill clinched his case for liberty through pious appeals to the martyrs of history—Socrates, Galileo, and so forth—and presented telling illustrations from everyday life. Suicide should be decriminalized, because in the last resort it was for the individual, not for society, to decide what to do with his or her life. Similarly, poisons should be sold freely, as should narcotics and alcohol. Society had the right to educate

and caution against, but not to prohibit indulgence in, such vices. The danger of their abuse was less than the stifling evils of what then was called paternalism.

Mill is strangely and revealingly silent, however, on matters of public health. He believed that bad morals and bad practices should be permitted, because they would be destroyed by free and fair competition, and that truth would prevail. But did the same apply to bad air, bad drinking water, and contagious diseases? To what extent and under what circumstances was the enforcement of public health proper? Mill does not say.

It is hardly anachronistic of us to put this question to him, especially given that the powers of the state to enforce the public health were controversially transformed beyond recognition during his own lifetime. The General Board of Health, set up by the Public Health Act of 1848, had been granted unprecedented powers to regulate such matters as dangerous sewers and contaminated water supplies—powers that Edwin Chadwick, its only paid and chief commissioner, exploited to the hilt.^[11] This board proved unpopular and short-lived, but it was succeeded by a new medical department established at the Privy Council, with additional powers of inspection and supervision of public health services, under the expert judgment of Sir John Simon.^[12] The Medical Act of 1848 also empowered local authorities to establish medical officers of health, who were mandated to monitor morbidity and coordinate the provision of statutory services in local sanitary districts, and granted a broad range of legal powers under a series of Nuisance Removal acts passed in the 1850s.^[13] Most radically of all, legislation of 1853 made universal childhood smallpox vaccination compulsory, carrying fines and even imprisonment for defaulters.^[14]

Faced with this tide of administrative centralization, the Tory press expressed its horror at the rising tide of Whig paternalism and its interference into private property and local government. The Herald claimed that "a little dirt and freedom, may after all be more desirable than no dirt at all and slavery."^[15] But this Canute-like gesture proved in vain. The current of compulsory public health, backed with state sanctions, was flowing powerfully. In the 1860s the Contagious Diseases acts (1864, 1866, 1869) empowered the medical inspection (under specific circumstances) of women believed to be common prostitutes. If found diseased, they could be compulsorily detained and treated.^[16] Somewhat later, the whole domain of infectious diseases came under surveillance and administrative regulation. Notification of Diseases acts in 1889 and

1899 required any incidence of a listed infectious disease (smallpox, diphtheria, scarlet fever, croup, typhus, etc.) to be compulsorily reported to the medical officer of health, who then had it in his powers to remove and isolate sufferers and their families and to compel medical treatment.^[17]

Looking back as early as 1868, less than a decade after Mill's On Liberty , Sir John Simon was loquacious about the dramatic benefits of this enlargement of the domain of public health regulation:

It has interfered between parent and child, not only in imposing limitation on industrial uses of children, but also to the extent of requiring that children should not be left unvaccinated. It has interfered between employer and employed, to the extent of insisting, in the interests of the latter, that certain sanitary claims shall be fulfilled in all places of industrial occupation. It has interfered between vendor and purchaser, has put restrictions on the sale and purchase of poisons, has prohibited in certain cases certain commercial supplies of water, and has made it a public offence to sell adulterated food or drink of medicine, or to offer for sale any meat unfit for human food. Its care for the treatment of disease has not been unconditionally limited to treating at the public expense such sickness as may accompany destitution: it has provided that in any sort of epidemic emergency organized medical assistance, not peculiarly for paupers, may be required of local authorities; and in the same spirit it requires that vaccination at the public cost shall be given gratuitously to every claimant.^[18]

Thus the high noon of free trade and individualism in the manner of Samuel Smiles's Self Help (1859), was also, paradoxically, a time when the state made staggering inroads on the freedom of the individual in the name of the national health. A battery of different ideologies contributed to breach the citadel of laissez-faire. Through trusty disciples such as Edwin Chadwick, Jeremy Bentham's doctrine—that it was the duty of the legislator to secure the greatest happiness of the greatest number through the deployment of science, expertise, and legal sanctions—had its impact, especially in the public health domain.^[19] In other fields of abuses, particularly those concerning children and lunatics, Evangelicalism's moral paternalism overcame the dogmatic defense of hallowed individual rights. And, as recent historians have been concerned to stress, pragmatic pleas of necessity in the teeth of "intolerable" evils such as cholera disarmed opposition.^[20]

Regarding particular abuses, it is important to stress the presence of a variety of distinct ideologies—in some ways complementary and in others competing—that could be used to argue for limited state action to safeguard the public health. The debates over legislation for sanitation, smallpox, or venereal disease never resulted in simple gross polar-

izations of opinion—Whigs versus Conservatives, religious versus secular enthusiasts, the medical establishment versus the people at large. Rather, we see internal fractionalization within each of the powerful parties, professions, and estates of the realm. Each instance—water supply, burial grounds, vaccination—brought about new alliances and allegiances, leading to a jerky, uneven development of powers that often reflected the preoccupations of a particular influential reformer (such as Lord Shaftesbury with lunacy law reform) or a pressure group of zealots.

It is in this context that we should interpret Mill's peculiar silence. Issues such as religious bigotry and humbug over private morality concentrated and united all his principles and prejudices. By contrast, the questions raised by the possibility of enforcing public health cut confusingly clean across his beliefs, as they did for many other Victorian intellectuals, physician and civil servant alike. Mill was deeply wedded both to utilitarianism and to libertarianism, and he believed that in the long run they were totally compatible. In the medium term the causes of happiness, progress, and utility, Mill contended, would best be served by maximizing liberty. Yet (in a way that might seem casuistic) he was also willing to countenance state intervention, or the infraction of liberties, in certain cases to ensure the effective operation of freedom, as he saw it. Thus, no man should be allowed to exercise the "freedom" of selling himself into slavery, because servitude itself denied human liberty. Similarly, Mill believed, the state was duty bound to compel parents to educate their children (despite the interference with the normally sovereign rights of parents), because without education no young person would be in a position to exercise freedom properly. This approach, which T. H. Green was soon to call "hindering hindrances," incorporated a certain paternalism within the philosophy of liberalism. The state could act to protect the liberty of those who could not protect themselves, or it could interfere in the lives of those who had abused their liberty. In its various ideological garbs, such a doctrine provided a key legitimation of selective state action (in allegedly exceptional or anomalous cases) for those eminent Victorians who deplored Prussian or French bureaucracy and primarily saw themselves as crusaders for liberal freedom.