§ 2.

This theory, of which Boards of Health and the like are embodiments, is not only inconsistent with our definition of state-duty, but is further open to strictures, similar to, and equally fatal with, those made in analogous cases. If by saying “that it is the duty of the state to adopt measures for protecting the health of its subjects,” it is meant (as it is meant by the majority of the medical profession) that the state should interpose between quacks and those who patronize them, or between the druggist and the artizan who wants a remedy for his cold—if it is meant that to guard people against empirical treatment, the state should forbid all unlicensed persons from prescribing—then the reply is, that to do so is directly to violate the moral law. Men’s rights are infringed by these, as much as by all other trade interferences. The invalid is at liberty to buy medicine and advice from whomsoever he pleases; the unlicensed practitioner is at liberty to sell these to whomsoever will buy. On no pretext whatever can a barrier be set up between them, without the law of equal freedom being broken; and least of all may the government, whose office it is to uphold that law, become a transgressor of it.

Moreover this doctrine, that it is the duty of the state to protect the health of its subjects, cannot be established, for the same reason that its kindred doctrines cannot, namely, the impossibility of saying how far the alleged duty shall be carried Edition: current; Page: [374] out. Health depends upon the fulfilment of numerous conditions—can be “protected” only by ensuring that fulfilment: if, therefore, it is the duty of the state to protect the health of its subjects, it is its duty to see that all the conditions of health are fulfilled by them. Shall this duty be consistently discharged? If so, the legislature must enact a national dietary: prescribe so many meals a day for each individual; fix the quantities and qualities of food, both for men and women; state the proportion of fluids, when to be taken, and of what kind; specify the amount of exercise, and define its character; describe the clothing to be employed; determine the hours of sleep, allowing for the difference of age and sex: and so on with all other particulars, necessary to complete a perfect synopsis, for the daily guidance of the nation: and to enforce these regulations it must employ a sufficiency of duly-qualified officials, empowered to direct every one’s domestic arrangements. If, on the other hand, a universal supervision of private conduct is not meant, then there comes the question—Where, between this and no supervision at all, lies the boundary up to which supervision is a duty? To which question no answer can be given.