judge cannot inflict the penalty for housebreaking on a burglar
who can prove that he found the door open and therefore made only
an unlawful entry. On the other hand, it is sometimes so vague,
as for example in the case of the American law against obscenity,
that it makes the magistrate virtually a censor. But in the main
a citizen can ascertain what he may do and what he may not do;
and, though no one knows better than a magistrate that a single
ill-conducted family may demoralize a whole street, no magistrate
can imprison or otherwise restrain its members on the ground that
their immorality may corrupt their neighbors. He can prevent any
citizen from carrying certain specified weapons, but not from
handling pokers, table-knives, bricks or bottles of corrosive
fluid, on the ground that he might use them to commit murder or
inflict malicious injury. He has no general power to prevent
citizens from selling unhealthy or poisonous substances, or
judging for themselves what substances are unhealthy and what
wholesome, what poisonous and what innocuous: what he CAN do is
to prevent anybody who has not a specific qualification from
selling certain specified poisons of which a schedule is kept.
Nobody is forbidden to sell minerals without a licence; but
everybody is forbidden to sell silver without a licence. When the
law has forgotten some atrocious sin--for instance, contracting
marriage whilst suffering from contagious disease--the magistrate
cannot arrest or punish the wrongdoer, however he may abhor his
wickedness. In short, no man is lawfully at the mercy of the
magistrate's personal caprice, prejudice, ignorance,
superstition, temper, stupidity, resentment, timidity, ambition,
or private conviction. But a playwright's livelihood, his
reputation, and his inspiration and mission are at the personal
mercy of the Censor. The two do not stand, as the criminal and