IX. THE NATURE OF LIBERTY

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.

Prejudices, third series · 第 37 / 51 题