THE MULLAN-GAGE LAW, THE VAN NESS ACT AND THE HOBERT ACT
The Empire State, not certain that the teeth of the Volstead Act were
biting it hard enough decided on April 4, 1921, that it would pass what
is known to the man in the street as the Mullan-Gage Law. It begins as
follows:
“SEC. 1. The penal law is hereby amended by inserting therein a new
article, to be article one hundred and thirteen.”
It goes on to say: “The possession of liquors by any person not
legally permitted under this article to possess liquor shall be
prima facie evidence that such liquor is kept for the purpose
of being sold, bartered, exchanged, given away, furnished or
otherwise disposed of in violation of the provisions of this
article; and the burden of proof shall be upon the possessor in any
action concerning the same to prove that such liquor was lawfully
acquired, possessed and used.”
As every one knows, in ordinary cases a defendant is considered
innocent until proved guilty. But here we see a dangerous reversal
of that idea in jurisprudence. Anyone carrying a flask would be
considered, in the eyes of this law, a bootlegger, a purveyor of
illegal goods--in fact, a criminal even though no evidence had been
produced to prove him so. In our anxiety to purify the nation, we have
distorted old established laws, turned reasoning topsy-turvy, and once
more made ourselves ridiculous--in the Empire State at least.
“Of making many laws there is no end,” one might paraphrase
Ecclesiastes. In his remarkably interesting book, “Our Changing
Constitution,” Charles W. Pierson points out the growing dangers which
confront us, because of our repeated amendments and addenda. He sounds
many a warning, and every American should read his brief but profound
volume.
“Whatever view one may hold to-day,” he writes, “as to the question
of expediency, no thoughtful mind can escape the conclusion that,
in a very real and practical sense, the Constitution has changed.
In a way change is inevitable to adapt it to the conditions of the
new age. There is danger, however, that in the process of change
something may be lost; that present-day impatience to obtain
desired results by the shortest and most effective method may lead
to the sacrifice of a principle of vast importance.
“The men who framed the Constitution were well advised when they
sought to preserve the integrity of the states as a barrier against
the aggressions and tyranny of the majority acting through a
centralized power. The words ‘state sovereignty’ acquired an odious
significance in the days of our civil struggle, but the idea for
which they stand is nevertheless a precious one and represents what
is probably America’s most valuable contribution to the science of
government.
“We shall do well not to forget the words of that staunch upholder
of national power and authority, Salmon P. Chase, speaking as
Chief Justice of the Supreme Court in a famous case growing out of
the Civil War:
“‘The preservation of the states, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the National Government. The Constitution in all its provisions,
looks to an indestructible Union composed of indestructible
states.’”
Yet today what do we find? The States renouncing their sovereignty,
abrogating their authority to the central government, time and again
diminishing their own strength, losing sight of one of the very things
on which the safety of our country depends. Worse than that, some of
them have attempted to pass laws which seem totally unnecessary, in
the light of the already rigid Volstead Act. Witness the State of
New Jersey, for instance, with the iniquitous Van Ness Act, which,
fortunately, was deemed unconstitutional.
Early in 1921, Mrs. Frank W. Van Ness, while a member of the New
Jersey Assembly from Essex County, of which Newark is the county seat,
introduced the act which provided that “whenever a complaint is made
before any magistrate that a person has violated one or more of the
provisions of this act, it shall be the duty of such magistrate, and
every such magistrate is hereby given full power and authority to issue
his warrant to arrest any such person so complained against, and,
summarily, without a jury and without any pleadings, to try the person
so arrested and brought before him and to determine and adjudge his
guilt or innocence.”
The Volstead Act plainly states that anyone violating the provisions
of that act is guilty of a crime. Mrs. Van Ness’s Act was an attempt
to have such persons, in the State of New Jersey, guilty of disorderly
conduct, which would not require a trial by jury.
The New Jersey Legislature passed the Van Ness Act, and other State
prohibition laws, at its session of 1921; but on February 2, 1922, the
Court of Errors and Appeals of New Jersey held that a number of the
provisions of the Van Ness Act were unconstitutional. The prevailing
opinion was written by Chancellor Walker, but there was a difference
among the judges as to the constitutionality of some of the different
provisions of the act, and other opinions were also written. The Court
of Errors and Appeals is the Court of last resort in New Jersey,
and by its judgment it reversed the Supreme Court finding which had
theretofore held the Van Ness Act to be constitutional.
Mrs. Van Ness was a candidate for reëlection in the fall of 1921, but
was not reëlected. Is there no significance in this fact?
As old as Magna Charta is the right of any citizen to a trial by jury,
when convicted of a crime; and as old, too, as that sacred document, is
the theory that one is innocent until proved guilty. Yet the Volstead
Act has paved the way for politicians without vision to seek to
destroy these inalienable rights.
“Where there is no vision, the people perish.”
Among other things, in the opinion handed down in 1922, Chancellor
Walker wrote:
“The act entitled ‘An act concerning intoxicating liquors used or
to be used for beverage purposes,’ passed March 29, 1921, the short
title of which is ‘Prohibition Enforcement Act,’ commonly called
the Van Ness Act, authorizing convictions for violation of its
provisions by magistrates without trial by jury, violates Article
1, Sec. 7, of the Constitution of New Jersey, 1844, which provides,
inter alia, that the right of trial by jury shall remain inviolate;
and also Id. Sec. 9, which provides, inter alia, that no person
shall be held to answer for a criminal offense unless upon the
presentment or indictment of a grand jury.”
And another judge rendered this opinion:
“The Van Ness Act is invalid to the extent that it makes violations
of its provisions disorderly acts as distinguished from those which
are criminal in their nature because, prior to its enactment, the
Congress of the United States had already declared by necessary
implication in the federal statute, commonly known as the Volstead
Act, that a person who violated any provision of the Eighteenth
Amendment to the Federal Constitution, should be guilty of crime.”
The constitutional provision in the State of New Jersey has long been
known to be as follows:
“The right of trial by jury shall remain inviolate; but the
legislature may authorize the trial of civil suits, when the
matter in dispute does not exceed fifty dollars, by a jury of six
men.”
Chancellor Walker further pointed out that the Constitution of 1776 had
contained this provision:
“And ... the inestimable right of trial by jury shall remain
confirmed as part of the law of this colony, without repeal,
forever.”
But though the Van Ness Act was declared unconstitutional the work of
suppression went on. The Hobert Act took its place. The Association
Against the Prohibition Amendment (New Jersey branch) protested to
Governor Edwards when the Bill was passed. They pointed out that
Chancellor Walker, in his opinion in the Court of Errors and Appeals,
on page 18 of the decision dated February 2, 1922, had said:
“New Jersey need not have passed any enforcement act and could have
left the field wholly to Federal endeavor under the Volstead Act.”
They likewise pointed out that there were no advantages whatsoever
to the State of New Jersey proceeding from such an act; but the
disadvantages were numerous and severe. It put upon the State courts
all the work, and upon the citizens of the State all the expense of
enforcing the national law. They also showed how tyrannical the Act was
in certain sections. Section 16 reads as follows:
“Any officer engaged in the enforcement of this act who shall
search any private dwelling, as herein defined, which is occupied
as such dwelling, without a warrant directing such search, or who,
while so engaged, shall, without a search warrant, maliciously and
without reasonable cause search any other building or property,
shall be guilty of a misdemeanor and upon conviction thereof shall
be punished for a first offense by a fine of not more than one
thousand dollars, and for a subsequent offense by a fine of not
more than one thousand dollars, or by imprisonment for not more
than one year or by both such fine and imprisonment.”
It was shown that this section had been taken, word for word, from the
Amendment, forced upon the United States Senate by the House in the
Willis-Campbell Bill and passed by the Senate on November 18, 1921.
The Stanley Amendment originally offered in the Senate for the purpose
of serving as an enforcement act to the Fourth and Fifth Amendments to
the Constitution was passed unanimously by the Senate after a thorough
investigation and after having been accepted by Senator Sterling who
had charge of the Bill. The House refused to accept the Amendment and
put into the Bill the following section:
“That any officer, agent, or employee of the United States engaged
in the enforcement of this act, of the national prohibition act, or
any other law of the United States, who shall search any private
dwelling as defined in the national prohibition act and occupied
as such dwelling, without a warrant directing such a search, or
who while so engaged shall without a search warrant maliciously
and without reasonable cause search any other building or property
shall be guilty of a misdemeanor,” etc., etc.
Senator Ashurst, of Arizona, a dry Senator, and one who said he had
never cast a wet vote in his life, refused to sign the conference
report on the ground that the language of this section did not protect
the people in their rights. He was joined by other dry Senators for the
same reason. Senator Reed, of Missouri, than whom there is no greater
Constitutional lawyer in the United States, in calling attention to
the words, “shall without a search warrant maliciously and without
reasonable cause,” had this to say:
“What is the plain inference to be drawn from that language? First,
you must have a warrant to search the house. Second, if while you
are searching the house you proceed without a warrant to search the
other building or property you are not guilty of offense unless two
things concur: First, you must have been without any reasonable
cause to search the other buildings or property, and, second, you
must have acted maliciously. Notice the language. It is worth
your while. You are legislating for 110,000,000 people and you
are putting this authority into the hands of irresponsible men,
proceeding without bond, armed with big guns, and sent out among
the people.”
The Hobert Bill invites Prohibition agents and officers to go anywhere
they desire _without_ a search warrant, with the absolute assurance
that in their unlawful occupation they are immune under the law.
“Malice” is the most difficult thing in the world to prove--with the
possible exception of “without reasonable cause.”
As a friend of mine, William L. Fish, says, “The Van Ness Act was the
_Bill Sykes_ of legislation, while the Hobert Act is the _Iago_.”
Between two such arch villains there is little choice. We are not
reforming the country, but deforming it.
If the people are to lose such cherished rights, there is little hope
for America. Blind indeed are those who cannot read the writing on
the wall. Surely there must come a reaction against such intolerable
legislation.
Already one senses a change of feeling; for millions of us cannot
be wrong when we claim that disregard of the laws of the land is as
serious a problem as the old problem of the corner saloon. If, in
correcting one evil, we bring to life greater evils, are we on the
right track?
[Illustration: Solemnly up and down that room the officer walked,
glancing here and there, after the manner of a soldier in the late war
standing guard over military prisoners.]