Every time an officer of the constabulary, in the execution of his just
and awful powers under American law, produces a compound fracture of
the occiput of some citizen in his custody, with hemorrhage, shock,
coma and death, there comes a feeble, falsetto protest from specialists
in human liberty. Is it a fact without significance that this protest
is never supported by the great body of American freemen, setting aside
the actual heirs and creditors of the victim? I think not. Here, as
usual, public opinion is very realistic. It does not rise against the
policeman for the plain and simple reason that it does not question his
right to do what he has done. Policemen are not given night-sticks for
ornament. They are given them for the purpose of cracking the skulls of
the recalcitrant plain people, Democrats and Republicans alike. When
they execute that high duty they are palpably within their rights.
The specialists aforesaid are the same fanatics who shake the air with
sobs every time the Postmaster-General of the United States bars a
periodical from the mails because its ideas do not please him, and
every time some poor Russian is deported for reading Karl Marx, and
every time a Prohibition enforcement officer murders a bootlegger who
resists his levies, and every time agents of the Department of Justice
throw an Italian out of the window, and every time the Ku Klux Klan or
the American Legion tars and feathers a Socialist evangelist. In brief,
they are Radicals, and to scratch one with a pitchfork is to expose a
Bolshevik. They are men standing in contempt of American institutions
and in enmity to American idealism. And their evil principles are no
less offensive to right-thinking and red-blooded Americans when they
are United States Senators or editors of wealthy newspapers than when
they are degraded I. W. W.’s throwing dead cats and infernal machines
into meetings of the Rotary Club.
What ails them primarily is the ignorant and uncritical monomania that
afflicts every sort of fanatic, at all times and everywhere. Having
mastered with their limited faculties the theoretical principles set
forth in the Bill of Rights, they work themselves into a passionate
conviction that those principles are identical with the rules of law
and justice, and ought to be enforced literally, and without the
slightest regard for circumstance and expediency. It is precisely as if
a High Church rector, accidentally looking into the Book of Chronicles,
and especially Chapter II, should suddenly issue a mandate from his
pulpit ordering his parishioners, on penalty of excommunication and the
fires of hell, to follow exactly the example set forth, to wit: “And
Jesse begat his first born Eliab, and Abinadab the second, and Shimma
the third, Netheneel the fourth, Raddai the fifth, Ozen the sixth,
David the seventh,” and so on. It might be very sound theoretical
theology, but it would surely be out of harmony with modern ideas, and
the rev. gentleman would be extremely lucky if the bishop did not give
him 10 days in the diocesan hoosegow.
So with the Bill of Rights. As adopted by the Fathers of the Republic,
it was gross, crude, inelastic, a bit fanciful and transcendental.
It specified the rights of a citizen, but it said nothing whatever
about his duties. Since then, by the orderly processes of legislative
science and by the even more subtle and beautiful devices of juridic
art, it has been kneaded and mellowed into a far greater pliability
and reasonableness. On the one hand, the citizen still retains the
great privilege of membership in the most superb free nation ever
witnessed on this earth. On the other hand, as a result of countless
shrewd enactments and sagacious decisions, his natural lusts and
appetites are held in laudable check, and he is thus kept in order and
decorum. No artificial impediment stands in the way of his highest
aspiration. He may become anything, including even a policeman. But
once a policeman, he is protected by the legislative and judicial arms
in the peculiar rights and prerogatives that go with his high office,
including especially the right to jug the laity at his will, to sweat
and mug them, to subject them to the third degree, and to subdue their
resistance by beating out their brains. Those who are unaware of this
are simply ignorant of the basic principles of American jurisprudence,
as they have been exposed times without number by the courts of first
instance and ratified in lofty terms by the Supreme Court of the
United States. The one aim of the controlling decisions, magnificently
attained, is to safeguard public order and the public security, and
to substitute a judicial process for the inchoate and dangerous
interaction of discordant egos.
Let us imagine an example. You are, say, a peaceable citizen on your
way home from your place of employment. A police sergeant, detecting
you in the crowd, approaches you, lays his hand on your collar, and
informs you that you are under arrest for killing a trolley conductor
in Altoona, Pa., in 1917. Amazed by the accusation, you decide hastily
that the officer has lost his wits, and take to your heels. He pursues
you. You continue to run. He draws his revolver and fires at you. He
misses you. He fires again and fetches you in the leg. You fall and he
is upon you. You prepare to resist his apparently maniacal assault. He
beats you into insensibility with his espantoon, and drags you to the
patrol box.
Arrived at the watch house you are locked in a room with five
detectives, and for six hours they question you with subtle art.
You grow angry—perhaps robbed of your customary politeness by the
throbbing in your head and leg—and answer tartly. They knock you down.
Having failed to wring a confession from you, they lock you in a cell,
and leave you there all night. The next day you are taken to police
headquarters, your photograph is made for the Rogues’ Gallery, and a
print is duly deposited in the section labeled “Murderers.” You are
then carted to jail and locked up again. There you remain until the
trolley conductor’s wife comes down from Altoona to identify you. She
astonishes the police by saying that you are not the man. The actual
murderer, it appears, was an Italian. After holding you a day or two
longer, to search your house for stills, audit your income tax returns,
and investigate the pre-marital chastity of your wife, they let you go.
You are naturally somewhat irritated by your experience and perhaps
your wife urges you to seek redress. Well, what are your remedies? If
you are a firebrand, you reach out absurdly for those of a preposterous
nature: the instant jailing of the sergeant, the dismissal of the
Police Commissioner, the release of Mooney, a fair trial for Sacco and
Vanzetti, free trade with Russia, One Big Union. But if you are a
100 per cent. American and respect the laws and institutions of your
country, you send for your solicitor—and at once he shows you just how
far your rights go, and where they end. You cannot cause the arrest of
the sergeant, for you resisted him when he attempted to arrest you,
and when you resisted him he acquired an instant right to take you
by force. You cannot proceed against him for accusing you falsely,
for he has a right to make summary arrests for felony, and the courts
have many times decided that a public officer, so long as he cannot be
charged with corruption or malice, is not liable for errors of judgment
made in the execution of his sworn duty. You cannot get the detectives
on the mat, for when they questioned you you were a prisoner accused of
murder, and it was their duty and their right to do so. You cannot sue
the turnkey at the watch house or the warden at the jail for locking
you up, for they received your body, as the law says, in a lawful and
regular manner, and would have been liable to penalty if they had
turned you loose.
But have you no redress whatever, no rights at all? Certainly you have
a right, and the courts have jealously guarded it. You have a clear
right, guaranteed to you under the Constitution, to go into a court
of equity and apply for a mandamus requiring the _Polizei_ to cease
forthwith to expose your portrait in the Rogues’ Gallery among the
murderers. This is your inalienable right, and no man or men on earth
can take it away from you. You cannot prevent them cherishing your
portrait in their secret files, but you can get an order commanding
them to refrain forever from exposing it to the gaze of idle visitors,
and if you can introduce yourself unseen into their studio and prove
that they disregard that order, you can have them haled into court for
contempt and fined by the learned judge.
Thus the law, statute, common and case, protects the free American
against injustice. It is ignorance of that subtle and perfect
process and not any special love of liberty _per se_ that causes
radicals of anti-American kidney to rage every time an officer of the
_gendarmerie_, in the simple execution of his duty, knocks a citizen
in the head. The _gendarme_ plainly has an inherent and inalienable
right to knock him in the head: it is an essential part of his general
prerogative as a sworn officer of the public peace and a representative
of the sovereign power of the state. He may, true enough, exercise that
prerogative in a manner liable to challenge on the ground that it is
imprudent and lacking in sound judgment. On such questions reasonable
men may differ. But it must be obvious that the sane and decorous way
to settle differences of opinion of that sort is not by public outcry
and florid appeals to sentimentality, not by ill-disguised playing to
class consciousness and anti-social prejudice, but by an orderly resort
to the checks and remedies superimposed upon the Bill of Rights by the
calm deliberation and austere logic of the courts of equity.
The law protects the citizen. But to get its protection he must show
due respect for its wise and delicate processes.