The Criminalization of Everyday Life, Part II (with an assist from A.P. Herbert)
The other day, commenting on Glenn Reynolds’s essay about how the “plethora of criminal laws and regulations in today's society . . . allows prosecutors to charge almost anyone they take a deep interest in,” I posted something about Ayn Rand and the criminalization of everyday life. This prompted a friend to send me a marvelous bit of legal history — or perhaps it is only classic comedy — from A.P. Herbert, the great British lawyer, MP, and comic novelist, author of Uncommon Law: Being 66 Misleading Cases.
If you go into your local bookstore (always assuming you have such antiquarian emporia in your neighborhood), you will doubtless find Hebert’s book congregated under the rubric “fiction” in the subcategory “satire.”
But is it satire? Consider the case of "Rex v. Haddock, Is it a Free Country?" As my friend reports, in this case Lord Justice Frog rejects an appeal against a fine of two pounds for disorderly conduct and associated offenses. The allegation was that the appellant, one Haddock, jumped off the Hammersmith bridge on a bet. Haddock maintained that not only had he not committed any of the offenses of which he was convicted (a point conceded by Lord Justice Frog), but that England was a free country, a man can do as he likes if he does nobody harm, and that he had acted "for fun."
Oh really? Said Lord Justice Frog:
"It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. The citizens of London must realize that there is almost nothing they are allowed to do. Prima facie all actions are illegal, if not by Act of Parliament, by Order in Council; and if not by Order in Council, by Departmental or Police Regulations, or By-laws. They may not eat where they like, drink where they like, walk where they like, drive where they like, sing where they like, or sleep where they like. And least of all may they do unusual actions “for fun.” People must not do things for fun. We are not here for fun. There is no reference to fun in any Act of Parliament. And if anything is said in this Court to encourage a belief that Englishmen are entitled to jump off bridges for their own amusement, the next thing to go will be the Constitution. For these reasons therefore, I have come to the conclusion that this appeal must fail. It is not for me to say what offense the appellant has committed, but I am satisfied that he has committed some offense, for which he has been most properly punished."
As I say, you are likely to find Uncommon Law (if you can find it at all) filed under “satire” or “humor.” Really, though, it ought to be filed in the the sociology or documentary section. Before long, perhaps, it will be categorized as subversive literature and simply banned: we cannot, after all, have people doing things “for fun,” or believing that “a man can do what he likes if does nobody harm.” What an antiquated idea that has become. More and more, it seems, we live in the society described by Lord Justice Frog: “Prima facie all actions are illegal.” The only question is, will we simply acquiesce in this increasingly-less-soft tyranny?
It took a long time and a lot of hardship to achieve Magna Carta, the Constitution of the United States, and the Bill of Rights. It’s curious — frightening really — how quick and easy it is to roll things back. Free speech? What a quaint idea. We don’t do that any more. The Second Amendment? We have a “living Constitution” here, my friend, and the Second Amendment is a dead letter in this enlightened world. It would be an interesting exercise to go through the Constitution and show how provision after provision, originally designed to protect people from the state, has been hollowed out, interpreted into oblivion, or turned on its head by leftists who regard the Constitution more as a weapon than a protection. The hill is difficult on the climb up, a snap on the ride down. It’s the getting back up against that’s the problem.
The friend who sent the the passage from Herbert ended with this paraphrase of Christopher Marlow’s Mephistopheles, “Why this is hell, nor are we out of it.”