Gustave de Molinari proposed private security as a superior alternative to government in his essay The Production of Security written in 1849. Tandy seems to be the next "anarcho-capitalist" theorist, offering more details of how it might work. He may be the first to use the insurance model. Later many others, e.g. Robert Nozick, Murray Rothbard, David Friedman, and the Tannehills, expanded on these ideas. - HB
Probably the first question which presents itself to the mind, when the abolition of the State is suggested, is how crime will be suppressed. It will be apparent to all who understood the last chapter, that actions are only criminal insofar as they directly transgress the freedom of others. Many people still cling to the idea that the main function of the State is to maintain Equal Freedom, an idea which has already been exploded, by showing that the State is the greatest violator of the law – in other words, the greatest criminal. How then can we expect it to protect us? True it affords us a certain security against smaller criminals, in order that it may have an excuse for its own crimes. How well it fills the position of criminal-in-chief may be read in the reports of the Lexow committee. Nor is it in New York alone that such things are carried on. Committees in nearly every other large city, though ultimately “whitewashing” the authorities, exposed enough rottenness to satisfy the most credulous.
A little investigation of the yearly services of policemen in the city of Boston affords interesting food for thought in this connection. In this city of nearly half a million of ‘all sorts and conditions of men“ there have been no more than 508 and no less than 310 cases of breaking and entering buildings, in any one year from 1887 to 1892. And in this same city, within the same period, there have been no more than 140 cases of robbery in any one year and no less than 100. But the following remarkable fact is true of each year. From 1,700 to over 2,000 innocent persons – the majority of whom are foreigners and half of whom are minors – are arrested without warrant, purely on suspicion, disgraced by unjust arrest and imprisonment, and then turned loose without redress! This happens with almost the regularity of clock works. Read the record as found in the police reports:
Year 1888 1889 1890 1891 1892 Arrested on suspicion 1,784 2,266 1,861 1,819 1,943 Discharged 1,778 2,263 1,858 1,817 1,929 Held for trial 6 3 3 2 14 But this is not all. In the year 1890, 37,000 people (in round numbers) were arrested with and without official warrant, only 2,000 of whom received imprisonment after trial. In 1891, 41,000 were arrested, only 3,000 of whom received imprisonment. In 1892, 48,000 were arrested, only 7,000 of whom received imprisonment. The average yearly amount of property stolen is $95,000. To recover this we have an expenditure of $1,170,000 – that is, on the assumption that property protection is the chief province of the police.
Now, considering that there are only about 500 persons each year, in a population of 500,000, whose property is in danger, and considering that no one of this population of half a million can be assured that he or she will not be one of the 500 bound to be robbed in spite of supporting an expensive police, is it not a legitimate question whether or no protection of property is worth paying for under present conditions? - Ellen Battelle Dietrick in “The Twentieth Century.”
This statement says nothing of the blackmail collected by the police. This item alone would swell “the cost of protection” enormously. If this is the way the State manages things – and of this there can be no doubt – it is surely time private enterprise had a turn. It can hardly do any worse, and I hope to show that it will do much better.
In nearly every large city business men either employ special night watchmen, or else subscribe to some merchants’ police company, in order to have their stores protected. Here are men who are compelled to pay the State for protection that is so inadequate and worthless, that they voluntarily pay a private institution to perform the same services. The State fails to perform its duty but still continues to collect the money for it by force. Meanwhile private enterprise steps in and does the work properly. Is there any danger that a community, in which the rights of life and property are held in such high regard that men will pay twice over for their protection rather than go without it - is there much danger that such a community will fail to protect itself from crime if left to do so without State intervention?
The work of insurance companies is suggestive of a method by which this might be done. If the State collects taxes from you to save your house when it is on fire, insurance companies will, if you pay your premiums, reimburse you for all your loss. The former thrusts its services on you unasked, and makes you pay for them whether you want them or not. The latter is a purely voluntary arrangement, and is perfectly willing to leave you alone if you do not molest it.
There are accident insurance companies which insure elevators. Should any person get hurt while riding in an elevator so insured and sue the owner of the building, the insurance company will settle the whole matter and pay such damages as may be awarded. In Colorado – I don’t know how it may be in other States – there is no State elevator inspector, consequently insurance companies inspect the elevators themselves and issue proper certificates. These companies have everything depending upon the correctness of their inspection. The loss of large sums of money and the shaking of public confidence are the penalties they must pay for mistakes. So their certificates are far more reliable, and command much greater public confidence, than those of irresponsible State boiler inspectors or State inspectors of mines, who have nothing to lose by issuing as many certificates as are demanded. The experience of all who have had any dealings with State inspectors teaches them that they are nearly always either dishonest or incapable and sometimes both. If you abolish such offices, those who have a vested interest in the inspection will have it performed to their satisfaction and at their own cost. As soon as State protection is removed, individual enterprise steps in and affords a better article at less cost.
I have heard it asserted that, during the cholera scare in 1893, the life insurance companies gave more money for the protection of the country from that disease, than did the United States Government. I cannot vouch for the absolute accuracy of this statement, but from the sums given by some of the largest concerns, I should think it is not exaggerated. One company alone gave $40,000.
Why cannot such institutions protect our persons and property from theft and assault as well as from accidents, fires, storms, etc.? That they are capable is clearly demonstrated by their past history. The exorbitant prices that they charge will be curtailed as soon as the monopolies of land and money are destroyed.
Every bicycle rider knows of insurance companies which insure people against the loss of their wheels, and the excellent work they do in recovering stolen property is gaining for them a widespread patronage. Other companies insure houses against burglary. Who ever heard of a State doing as much? At best it will watch your premises, and if you are robbed it will try to catch the criminals. But the idea of reimbursement! Who ever heard of such a thing? These insurance companies sometimes rely upon the State officers for the protection of their clients’ property but more often upon their own special watchman.
It is surprising how easily people will get what they want without State interference if the State will only let them do it. The best way to protect a man is to let him protect himself.
On two occasions during the police board troubles which occurred in Denver in the Spring of 1894 (of which more will be said later), the entire police force was suddenly called, late in the afternoon, to guard the City Hall through the night. This left the city without any police protection. But a demand nearly always creates a supply. A committee of citizens, which had been organized to maintain peace, employed Pinkertons to guard the morals of the community. Thus private enterprise steps to the front and fills the “functions of the State” after that decrepit old institution has failed.
Pinkerton men have a very bad name, especially among labor leaders. But this is due to the action taken by them in labor troubles. This in turn is due to the economic system which creates those troubles. Once solve the economic problem and you trim the claws of private enterprise, rendering it incapable of great evil, while retaining its good qualities. But even now Pinkerton men are not one whit less responsible than ignorant ward politicians in brass buttons and blue coats. Pinkertons derive their support only from the men who employ them, whereas policemen are paid as much by the victims of their tyranny as by those that tyranny benefits. The ill repute in which Pinkertons are held is in itself an argument in their favor. If a man is unjustly assaulted by one, he has no compunction at resisting him. But if he is unjustly clubbed by a brutal policeman, he has the glorious remembrance that he himself is paying for the club which hits him, and so he is deterred from resistance by a superstitious veneration for the idol of his own creation.
Such institutions as I have suggested would derive their support, both financial and moral, from their subscribers. Any that were unjust or tyrannical would soon lack patronage, and so competition would give us the best article at the lowest cost, in the administration of justice as in everything else.
The oft quoted argument that this is merely abolishing the State in order to establish a lot of little States is hardly worthy of comment. These institutions lack all the elements which are essential characteristics of the State. The State is primarily invasive, these are defensive. The State is founded on compulsory co-operation, while these are distinctively voluntary. The State claims absolute control over all within its borders, while these permit the freest competition. In other words, one is the State, and the other an honest business undertaking. What we do demand, if you wish to put it that way, is that the State shall restrict itself to the protection of person and property and the maintenance of Equal Freedom, and then, in conformity with that principle, cease to compel anyone to support it. If you wish to call what is left “a State,” our only disagreement will be on the use of the word.
It is highly probable that some people will, under such a system, occasionally reap a benefit for which they do not pay. But this seems to be the inevitable with everything we do. If I improve the lot on which I live, I make the surrounding property more valuable. If I dress neatly I help to make the town where I reside a more pleasant place to live in. These benefits are purely incidental. If a protective association, by making crime more difficult, incidentally renders the property of people who do not subscribe to it more secure, surely no harm is done! If a man refuses to patronize such an association he need not expect any special service from it. If a stranger was being robbed, however, such associations would usually find it to their advantage to render him assistance in cases of emergency, and take chances of collecting afterwards. If the stranger refused to pay he would be extremely foolish, as he need then never expect any such help in future. The protective association would “black-list” him, so to speak, and probably notify other associations of their action. In this manner the man would find himself abandoned, and he would soon become the prey of criminals. But these are only very exceptional cases hardly worthy of consideration.
Many people seem to fear that with the existence of several different protective associations in the same city, there will be incessant conflict between them. But as each will be endeavoring to get the largest number of patrons, each will endeavor to follow the policy that is most universally approved. The ordinary business man does not lie awake in the small hours of the morning pining for civil war. So the probabilities are that protective associations will not attempt to place such an expensive commodity upon the market when there is no demand for it.
The history of Mohammed’s life shows us several instances in which a city is inhabited by two or more independent tribes, and the different sections of the city go to war with each other. But it does not appear that they were more disorderly, or fought more, than the tribes of the samne turbulent blood in other circumstances. At least, the system was able to live, and give satisfaction to those who lived under it, till overthrown by a power which also overthrew great empires. This ought to be an answer to those who think that two police agencies cannot co-exist in the same place; for there never was a people who ‘needed a strong government’ more than these Arabs.But this system has been changed in the direction of greater liberty. A man can now change his citizenship and the laws to which he is subject, whenever he chooses – provided he will leave his country. Now, imagine what some fine old Tory of the clan system would have said if this change had been proposed to him. ‘How Anarchistic! A man would be able to escape from all the laws that bind him by simply running away! Law and order would utterly cease!’ But the world has survived it. Anarchism proposes to increase liberty further by removing the condition that a man must leave his country. This would introduce no difficulty, it seems to me, that the world has not got along with fairly well in one or another of the systems which have existed.
But why go into ancient history? Kansas City is much handier. The State line runs right through the edge of the city, among popular streets. Men who live on the same street are subject to different laws, and look for protection to different powers. Kansas has prohibition; but where the streets run into Kansas saloons are built up to the State line. The theoretical difficulties in the way of a Missouri policeman’s chasing a man into Kansas are much greater than those in the way of two Anarchistic associations exercising police power on the same ground. But Kansas City claims to be a highly prosperous place.
When New York and Jersey City are connected by tunnel or bridge, nearly the same predicament will arise. The impossibilities of Anarchism are about to be introduced in New York. Why do not the defenders of public order protest against the improvements?
Worse yet. Under Anarchy every man would be subject to his neighbor’s association to this extent, that the association could punish him for clearly invasive acts. But to-day, in every civilized country, there is a large body of men who are under no law whatever. Envoys and consuls are responsible to no one but the government which sends them. Cromwell once hanged an ambassador for murder, but no one ever dared follow the example. If a consul commits a crime here, all we can do is politely to request the consul’s royal master to recall him as a persona non grata, and to punish him at home in such a way as may seem adequate. This privilege extends to the foreign representative’s retinue also, including, I believe, even household servants.
It is the uniform practice of Christian countries to maintain as against non-Christian countries the ancient principle that their subjects in a foreign country are not subject to the laws of that country. This privilege is always provided for in treaties. Hence the European in such a country is bound by no law but such as his consul will enforce. In places like Cairo and Jerusalem there are considerable colonies of at least half a dozen nationalities, each of which is responsible solely to its consul. I never heard of a proposition to unite all the Europeans, not to say all the city, under a single authority. - S. T. Byington in “Liberty,” 5 May, 1894.
We often find that this very evil which is so feared under Anarchy is not unknown to-day. For example: the Governor of Colorado has the right to appoint and discharge members of the Denver Fire and Police Board. When he determined to exercise this power in the Spring of 1894, the members he had discharged called upon the police force to protect them in their offices. At this the Governor called upon the State militia, and subsequently upon the Federal troops, to execute his order. But the Police Board was in possession of the field. On the housetops, at every window and scattered among the spectators were men armed with revolvers, Winchesters and dynamite ready to fight the troops. Whereupon the Game-Warden, fearing that the rights of sportsmen might be trampled upon, organized a small army of deputies to assist the Governor. After three days of excitement it was decided to await the action of the courts. The peaceable citizens had the privilege of paying the salaries of all concerned upon both sides.
A similar trouble has recently occurred in Omaha. Another scene of the same kind was witnessed in Topeka in 1893, when the Populists attempted to organize a State Legislature, in order to elect a United States Senator. Under similar circumstances the same trouble arose in Colorado in 1891. No doubt many other instances could be given. From these facts we find, that while in modern times there never has been any actual conflict between different police associations, or associations under the command of different men, operating in the same city, yet there have been serious disagreements which almost resulted in open hostilities. But these disagreements have in every case been due to the endeavor of men to secure political power. This would be impossible if political power ceased to exist owing to the abolition of the State.
“But who will perform the legislative function when the State is abolished?” is another frequent question. “You would surely not entrust that to Pinkerton or his fellows!” Most assuredly not. When a person subscribes to a protective association, a clause might well be inserted in the contract by which the subscriber agrees to serve as a juror whenever he is called upon to do so. When a prisoner is to be tried, a juror will then be selected by lot from among all the subscribers of the association. This jury will then judge the facts, and if they unanimously find the prisoner guilty, they will determine what punishment he shall receive. Strange as such a proposition may seem, it is by no means new. The original jury in ancient times was a means employed by the people to guard themselves against the tyranny of the State. The laws were enacted by the ruling powers, but when they were transgressed, the accused was tried “by his neighbors,” who rendered a verdict, not upon the facts alone, but also upon the law, and decided the penalty in case of conviction. They might find that the facts proved the prisoner guilty of the charges preferred, but that the law was tyrannical, and therefore he was justified in violating it.
In this manner the jury practically possessed a veto power. If the opinion of the community supported the law, the verdict would be in accordance with it. If the people considered the law bad, they would so express themselves by their verdict. Or they might see fit to modify the interpretation of the law, so as to adapt it to the particular case which they were trying. In this way the greatest flexibility can be given to the administration of justice. With these powers the jury-system is really a “safe-guard of freedom.” Without them, all the true power is vested in the State. The jury was the representative of the whole people in a truer sense than are legislative bodies to-day. They were not elected – mere representatives of a majority – but were taken from among the whole people, as a handful of corn is taken form the sack as a sample of the whole.
The jury trial was really a trial by the people, as contradistinguished from the trial by the State. That its powers were curtailed by the perseverance in tyranny of the State is manifest all through history. Now the jurors are fined and imprisoned for perjury, because they rendered a verdict at variance with the wishes of the crown. Now the selection of jurors is given to judges, sheriffs and other employes of the king. For the State has ever held itself superior to its own contracts, from the time King John evaded the Magna Charta, to the time every town in this republic passes laws against carrying weapons, the constitution of the United States notwithstanding.
This jury system practically gives the people a veto power over the acts of the State. It fills, in a great measure, the functions of the Referendum without the red tape of that institution. Unanimity must be required in the verdict of the jury, or the idea of a trial by the whole people is absolutely lost. To descend to the nose counting process in politics is bad enough, but in the administration of justice it is awful to contemplate. As soon as anything is left to the decision of the majority, the minority are robbed of their individuality.
Many claim that jurors picked from the mass of the people, having no special training in the law, would be incapable of administering it. This rests upon the a priori assumption that the law is good, and is really begging the question. The jury would not have to determine the application of the law to their particular case, but the equity of the law, especially in its bearings on the case on hand. In Illinois juries are nominally given the power of interpreting the law as well as the facts. What is needed is a jury which can judge the law as well as the criminal. Should the jurors be appointed by the officers of the State, they become the tools of the State. Should the demand for professional jurors be put into practice, we should have the State as judge, jury, prosecutor and tyrant-in-chief, with the people left to defend themselves as best they could.
The way in which jurors are selected to-day is alone enough to condemn the present system. To exclude a man because he is convinced that the law is in error is to deprive the defendant of a fair trial. It limits the jury to a part of the people, and to that part which is prejudiced in favor of the State. Furthermore, no man can give sociological questions much thought without arriving at some opinions on these questions. So to disqualify a juror because he has formed opinions of the law, is to make intelligence a disqualification. Any personal prejudice for or against the prisoner, which would be strong enough to prevent a fair consideration of the facts, should of course disqualify a juror; but not an opinion of the righteousness or iniquity of the law.
This system would limit the powers of the judge to merely presiding at the trial, to preserve order and to keep the cross-examination from wandering from the point at issue. He might also have power to grant a new trial. The jury would possess the real power, and would inflict what penalty it deemed adequate. Certainly errors would be made, but under such a system the verdicts will coincide as nearly as possible with the opinions of the community, and we can never hope for any more than this. The administration of justice must ever be dependent upon the intelligence of the people.1
The application of the definite principle of Equal Freedom in determining doubtful cases, will certainly not cause more mistakes than our present haphazard method. As that principle is applied we shall gradually learn by experience the solution of these difficulties. The number of doubtful cases will grow smaller as our experience of liberty enlarges. Meanwhile I must agree with Mr. Tucker, “no force in doubtful cases unless immediate action is imperative.”
In the absence of law – except perhaps such regulation as the protective association may have made – the jury will practically make the law to suit each individual case. Nor will this be such a stupendous undertaking as would appear at first sight. Before any such system as this could possibly come into practice, a much clearer idea of individual liberty must be generally entertained than is current in the present day. With the principle of Equal Freedom as a guiding maxim, and a system of prison ethics based upon that law, the practical difficulty of deciding the punishment for each crime is reduced to a minimum.
It is commonly asserted that the criminal has no rights that we are bound to respect, and so we may treat him as we see fit. This idea is radically inconsistent with Equal Freedom. If we deprive the offender of more liberty than is necessary to secure the equal liberty of all, we are clearly curtailing the fullest amount of liberty consistent with equality of liberty. On the other hand, any restraint that is inadequate to secure the liberty of others is unjust to the rest of the community.
The only just definition of the word criminal is, one who violates the liberty of another by a crime committed on the person or property of that other. Crimes against property can always be easily estimated in money. While the measuring of crimes against person in the same manner often presents difficulties, it is probably the most just manner yet attempted of estimating the damage caused; at least the practice of doing so would seem to justify such a conclusion. Assuming, then, that all crimes may be approximately measured in money, Equal Freedom demands that the criminal be compelled to make full restitution to the injured party. Since his crime has involved the expense of capturing, trying, and keeping him under restraint, he must also pay for all this. To impose these charges upon someone else, is to make them pay in part for his crime. To require more of him than this is a violation of his liberty for which there is no excuse. There is no reason, save that of expediency, why his jailors should provide labor for him to perform, but that reason will be sufficient to induce them to give him such occupation as they can, or else to help him to exchange his labor without the outside world. The jury will merely have to determine the extent of the damage done and the minimum period of incarceration. The jailor will then perform his duty and assist the prisoner to exchange his labor with the outside world. Of the product of his labor, a certain portion will be set aside to defray the cost of the trial and the prisoner’s board. A certain portion will be deposited for the reimbursement of the victim, and the rest given to the prisoner for his own use. If he so desires, any of this latter portion might be applied to either of the other purposes, with a view to shortening the period of his incarceration. When a sufficient amount has been saved by the criminal to pay all the costs and damages assessed against him, he might then be released, if he could induce anyone to give bail for his future good behavior – a task of no great difficulty if the man was of previous good character, but which would present serious obstacles to the hardened criminal.
But putting aside all questions of justice to the criminal, let us see the advantages if such a system. As necessitarians, we must lay aside all sentimentalism as well as all idea of revenge in the treatment of criminals. We must regard them simply as machines which do bad work. The problem which confronts us, is how to mend the machine so that it will do good work in future, not how to make it suffer most for past transgressions. A systems such as that here advocated is most admirably adapted to such a purpose. It tends to cultivate habits of industry, thrift and honesty, and so to transform the erstwhile criminal into a useful member of society.
While this system has never yet been tried, Spencer tells us that wherever it has been partially attempted, the success which has attended the experiment is sufficient to justify the whole scheme.2
After all this whole question of defence is relatively unimportant. I would not have taken up so much space discussing it, did not the opponents of Anarchism lay so much stress upon it. In all probability police duty will be the “function” of the State which will survive the longest. The economic question will most likely be settled long before the policeman will relinquish his club. All authorities agree that most crimes are, directly or indirectly, due to poverty. So we will have but little to fear from this source under equitable economic conditions. The establishment of such conditions, then, is of the first importance, and now claims our attention.
1 Editor's note: The preceding seven paragraphs are heavily dependent on Lysander Spooner’s 1852 Essay on the Trial by Jury. – RTL
2 Editor's note: a reference to Herbert Spencer’s article “Prison-Ethics” (British Quarterly Review, July 1860). – RTL
