OUR LAWLESS HERITAGE
OUR LAWLESS HERITAGE
I
The question is frequently asked, “Is the Eighteenth Amendment making
us a nation of lawbreakers?” There are two answers, depending upon the
meaning of the question. If it is intended to ask whether many people
are disobeying the law and whether the Amendment is helping to break
down respect for law itself, the answer is emphatically, yes. If,
on the other hand, the question is intended to imply that we were a
law-abiding nation before we went dry, the answer is as emphatically,
no. Any law that goes counter to the strong feeling of a large part of
the population is bound to be disobeyed in America. Any law that is
disobeyed inevitably results in lawbreaking and in lowering respect for
law as law. The Eighteenth Amendment is doing that on a gigantic scale,
but it is operating upon a population already the most lawless in
spirit of any in the great modern civilized countries. Lawlessness has
been and is one of the most distinctive American traits. It is obvious
that a nation does not become lawless or law-abiding overnight. The
United States is English in origin, and, even making allowance for the
hordes of “foreigners” who have come here, there must be some reason
why to-day England is the most law-abiding of nations and ourselves the
least so. It is impossible to blame the situation on the “foreigners.”
The overwhelming mass of them were law-abiding in their native lands.
If they become lawless here it must be largely due to the American
atmosphere and conditions. There seems to me to be plenty of evidence
to prove that the immigrants are made lawless by America rather than
that America is made lawless by them. If the general attitude toward
law, if the laws themselves and their administration, were all as
sound here as in the native lands of the immigrants, those newcomers
would give no more trouble here than they did at home. This is not the
case, and Americans themselves are, and almost always have been, less
law-abiding than the more civilized European nations.
Living much in England, I have already had frequent occasion to note
the startling difference which one feels with respect to the public
attitude toward law in that country and in our own. No one can be there
without feeling this difference, but lest my own insistence upon it be
set down to prejudice, let me quote the opinion of Dr. Kirchwey, head
of the Department of Criminology in the New York School of Social Work,
formerly Dean of the Columbia Law School, and one-time Warden of Sing
Sing Prison. “Our visitor to London,” he writes, “will have heard much
of the low crime rate of that great city, of the efficiency of the
unarmed police, of the swift and sure administration of criminal laws.
Let him look further and note the ingrained habit of law-observance of
every class of the population from the man in the street to the judge
on the bench. He will find no attempt made to violate the restrictive
laws governing the sale of liquor, whether by licensed vendor or by
the customer; rarely a violation of traffic regulations by cabmen or
private driver ... he will not discover a trace of the sporting spirit
which leads his fellow-citizens of the American commonwealth to laugh
at the escape of a daring criminal from the legal consequences of his
guilt. And, if he cares to pursue his studies further, he will find on
the other side of the English Channel still other communities where,
as in England, a low crime rate is set against a background of an all
but universal sentiment of respect for law and order.” How is it that
we in America to-day are without the pale of this respect for law which
is one of the fundamentals of civilization? In seeking an answer we
obviously cannot confine ourselves to the present decade, but must dig
deep into the past. Only parts of the appalling record that we shall
find, when we do so, can be touched upon here.
Respect for law is a plant of slow growth. If, for centuries, laws
have been reasonably sound, and impartially and surely enforced by
the lawful authorities, respect for law as law will increase. If, on
the other hand, laws are unreasonable or go counter to the habits
and desires of large parts of the population, and are not enforced
equitably or surely, respect for law will decrease. On the whole, the
first supposition applies to the history of England for three hundred
years and the second one to our own.
II
Let us consider our colonial period first; and it must be remembered
that we were a part of the British Empire for a longer period than
we have been independent. The way in which those supposedly godly
persons, the leaders of the Massachusetts theocracy, began at once
by breaking the law of England will help us to an understanding of
the whole colonial situation. The Massachusetts Company, a business
corporation in the eyes of the English Government, applied for a
charter of incorporation and received it. It provided for what we
should call voting stockholders and a board of directors to be elected
by them. Nothing more was intended in the grant by the Government. Some
of the leaders in the company conceived the brilliant idea of secretly
carrying the actual charter to America and using it as though it were
the constitution of a practically self-governing State. This was done,
but the foundation of the strongest of the Puritan colonies was thus
tainted with illegality and chicanery from the start. Not only that,
but in the beginning even the terms of the charter were not complied
with and the government was usurped by the leaders, the government
thus being made doubly illegal. The reasons for these acts included
the distance of America from England and the desire of the leading
colonists to govern themselves without interference from the home
country.
With local variations the story of the colonial struggle for
administrative (rather than political) independence explains much
of our later legal history. Speaking generally, we may say that the
standard form of colonial governments came to be that of a governor
appointed by the crown, of an upper house appointed by the governor
or elected subject to his veto power, and a lower, popularly elected
assembly. In some cases the upper house had judicial functions, and
many judges, such as those in the admiralty courts, were appointed by
the Crown. The colonists were settled on the edge of a vastly rich,
virgin continent which fairly cried aloud to be profitably exploited.
Imperial legislation was considered to be, and frequently was, a
hampering influence. In this complex we may find the beginning of the
disease of lawlessness.
Law must have some sanction. There can be only three. It may be
considered either as the dictum of some supernatural being, or as
the command of an earthly sovereign,—not, of course, necessarily an
individual,—or as receiving its sanctity from the consent of the
governed. The supernatural was tried only in New England theocracies,
and soon abandoned as unworkable. The sovereignty of the empire
obviously resided in “the King in Parliament,” but that, for practical
purposes, the colonists usually denied or strove against. The consent
of the governed, in a strictly local sense, was all that remained, and
it has continued, also in a local or partial sense, to control American
obedience to law. Even if local law was fairly well obeyed when passed
by the colonists themselves, respect for law as law could not fail to
be lessened by their constant breaking or ignoring of the imperial
laws. Without attempting to go into detail or to adopt a chronological
arrangement, we may note some of the ways in which this was brought
about.
A constant source of lawbreaking, particularly in the North, was the
legislation by Parliament with regard to what were called “the King’s
Woods.” In that day of sailing ships, trees suitable for masts were in
great demand. England preferred to depend upon the forests of America
rather than upon the foreign ones of the Baltic Provinces, and laws
were made to save for the use of the Royal Navy all trees above a
certain size upon lands not specifically granted to individuals. The
colonists on the spot felt this to be an abridgement of their right to
exploit the continent and use all its resources themselves. Not only
were the laws disobeyed and the authority of the officially and legally
appointed “Surveyors of the Woods” flouted, but force was used to
oppose authority, and rioting not seldom was employed against law.
Again, according to the generally accepted economic theory of the day,
colonists were supposed not to manufacture in competition with the
home country, but to supply her with the raw materials. Laws against
manufacturing worked, as a rule, but little hardship on the colonies,
owing to high wages, scarcity of skilled labor, and other reasons,
but they did in a few instances, as in the case of wool and smaller
hardware such as nails. These were mostly household manufactures, but
they were carried on by nearly every household in conscious defiance of
imperial laws.
After the French and Indian War and the acquisition from France of
Canada and the West, the British Government by proclamation in 1763
forbade any settlement in the new regions, the intent being to consider
the problem deliberately in the light of Indian and other relations
which the colonists had never been able to agree upon among themselves.
Owing to procrastination, this temporary, and to the colonists most
galling, restriction was not removed. Settlers and traders ignored the
proclamation and poured into the new territory, all against the law. In
fact, whenever there was profit to be made, the colonists ignored even
their own laws. Most colonists had legislated against selling firearms
or spirits to the Indians because of the obvious dangers involved,
but these laws were constantly transgressed. In New York it was made
illegal to trade with the French in Canada by way of Albany because by
so doing the French were enabled to strengthen their Indian alliances
at the expense of the colonists, but the temptation to profit was too
great, and the merchants not only broke the law, but plotted to secure
the removal of the governor whose far-sighted policy had insisted upon
its passage.
Of even more pernicious effect were the laws of trade. For example,
in 1733, owing to the insistence of the West Indian sugar planters,
Parliament passed an act placing a prohibitive duty upon the
importation into the continental colonies of any molasses from foreign
islands. The problem was a triangular one and no attempted solution
of it could be fair to all three parties involved. For reasons which
we need not go into, had this law been obeyed, the commerce of New
England, including its profitable slave trade, would have been ruined.
The law was never obeyed, but as a consequence, the New Englanders
became a race of smugglers, and the most reputable merchants became
lawbreakers. In this case, smuggling and lawbreaking were forced upon
them, but, having become used to them, they passed on to smuggling when
there was no reason but increased profit. In the French and Indian War,
twenty years later, we find the merchants trading with the enemy on a
scale which certainly prolonged the war, and in the decade before the
Revolution men like John Hancock did not hesitate to smuggle wines on
which there was only a moderate duty, and even forcibly to resist the
authorities in doing so. As the Revolution drew nearer, the radicals
made it a point of patriotic duty to break the English laws, and force
and mob violence became more and more common. The Boston Tea Party is a
case in point. That wanton destruction of fifty thousand dollars’ worth
of private property was in no way essential to the patriotic cause and
was condemned by many of the patriot party.
As a result of the imperial-colonial situation through a century and a
half, only some of the aspects of which we touched upon, there steadily
developed a disrespect for law as law and a habit of lawbreaking. The
colonists made up their minds not to obey law, but merely to obey such
laws as they individually approved of or such as did not interfere
with their own convenience or profit. We are not arguing the ethics or
rights of the cases, but merely stating facts and results. Moreover, in
every colony there was constant conflict with the royal governors, so
that the executive power came to be considered as inherently something
to be distrusted and limited as far as possible, a feeling which is
strong today as an inheritance from our colonial past. The executive,
represented to the colonists as a hostile and outside power in their
“constitutions,” came to appear a power to be disobeyed and thwarted
whenever feasible. In a similar way did the judicial. The people stood
together to defeat the courts and to protect friends and neighbors.
This was particularly notable in the admiralty courts and all cases
prosecuted under the laws of trade. Juries would not convict no matter
how flagrant the smuggling or other lawbreaking. Thwarting courts and
officials became as much a game on the part of otherwise reputable
people as fooling prohibition officers to-day.
In the South another element was introduced into the complex situation
by slavery. There were slaves in the North also, but for the most
part in too small numbers to affect the matter greatly. In the South
the large numbers of blacks, many of them recently imported from the
jungle, and their peculiar status as personal property, resulted in
legislation and judicial administration which tended to some extent
to break down respect for law. In Maryland and many other colonies,
for example, a negro was not allowed to testify against a white man.
Moreover, the court in which the slave was most likely to be tried was
that presided over by a single local magistrate, a slave-owner himself.
In Virginia until 1732, if a master killed his slave in consequence of
“lawful correction,” it was viewed merely as “accidental homicide.” The
raping of a female slave was “trespass upon property”! If we consider
the laws relating to the negro, and the relations between him and the
whites, even admitting that the great majority of slave-owners may have
been kindly, it is evident that in the two centuries of the existence
of the institution among us an immense amount of crime must have gone
not only unpunished but without fear of punishment.
One other element may be taken into consideration, the effect of the
frontier. Until thirty years ago, America has always had a frontier,
and that fact has been of prime importance in many respects for the
national outlook. For our purpose we may merely note that in the
rough life of the border there is scant recognition for law as law.
Frequently remote from the courts and authority of the established
communities left behind, the frontiersman not only has to enforce his
own law, but he elects what laws he shall enforce and what he shall
cease to observe. Payment of debt, especially to the older settlements,
may come to be looked upon lightly, whereas horse stealing may be
punishable with shooting at sight.
III
When the colonies united and won their independence and the United
States was formed, there had thus already developed a fairly definite
attitude toward law and authority. In many respects, owing mainly to
their economic prosperity, the colonies were more law-abiding than
Europe. In all my research, for example, I have found only one case of
a traveler being robbed on the highways. Moreover, the colonists came
to be a kindly and hospitable folk, and crimes involving brutality
were proportionately less common than in the Europe of that day or
the United States of this. But the essential point is that Americans
had developed a marked tendency to obey only such laws as they chose
to obey, and a disregard of law as law. Laws which did not suit the
people, or even certain classes, were disobeyed constantly, with
impunity and without thought. A habit had grown up of attempting to
thwart the courts and judges, of distrusting the executive, and of
relying solely upon the legislatures. Juries had got into the way of
not considering the law, but merely their own or their neighbor’s
interests. When cases became desperate or law officers made some show
of real enforcement, as did occasionally a rare Surveyor of the Woods
or a customhouse officer, they were taken care of by mobs, and as a
rule the absence of any real force behind the show of royal authority
made the officials powerless. In the national period we shall see the
fruits of this long training in disrespect for law.
We need not linger over Shay’s Rebellion in Massachusetts in 1787,
when mobs of malcontents with genuine grievances forced the closing
of courts and brought the state to the verge of civil war; or the
Whiskey Insurrection in 1794 in Pennsylvania, when attempts to enforce
an excise tax required the use of fifteen thousand Federal troops.
Nor need we go into the practical nullification of Federal laws and
authority by some of the New England states in the War of 1812, or
the smuggling and trading with the enemy during that ill-advised
conflict; or into the threatened nullification of the Federal tariff
by South Carolina some years later. The ripest fruits of disregard
for law are found mainly when passions are aroused, as they were for
several decades from 1830 onward. We will briefly touch first upon the
persecution of the Irish and Catholics, in which law and order were
abandoned from 1833 to 1853. The building of the Baltimore Railroad was
punctuated by race riots. Even the militia failed to quell a similar
one on the Chesapeake and Ohio, and a “treaty” had to be drawn up.
In 1834 the Ursuline Convent near Boston was burned to the ground
and sacked by anti-Catholics. The next night a race riot, this time
directed against negroes, broke out in Philadelphia in the course of
which thirty houses were sacked or destroyed, a church pulled down,
and several persons killed. Similar riots occurred within a few weeks
at other places, and in a few years the militia had to disperse a
mob of two thousand marching on the house of the Papal Nuncio at
Cincinnati. The Irish quarter in Chelsea, Massachusetts, was attacked;
the chapel at Coburg was burned, that at Dorchester blown up, and that
at Manchester, New Hampshire, wrecked; at Ellsworth, Maine, the priest
was tarred and feathered; the convent at Providence was attacked; and
at St. Louis a riot resulted in ten deaths. But it is unnecessary to
detail more, such incidents being all too common throughout the country.
Similar violence was used against the Mormons, mainly while they were
resident in Missouri and before they had adopted the doctrine of plural
wives. The feeling against them first manifested itself in tarring
and feathering, but by the autumn of 1833 a veritable reign of terror
had begun. Houses were destroyed, men were beaten, and even a battle
took place. By November mobs had forced about twelve hundred Mormons to
leave their homes, pursuing them across the Missouri River and burning
over two hundred of their forcibly abandoned houses. The governor was
unable to afford them protection, although admitting that they were
entitled to it. Law having completing broken down, a military order was
given either to drive them all from the state or to “exterminate” them.
They had broken no laws, but in another battle in defense of their
legal rights seventeen were killed and some of their bodies horribly
mutilated after death.
We find the same disregard of law when we come to the Abolitionists and
the antislavery agitation. The episodes in connection with this, such
as the murder of Lovejoy in Illinois, the mobs threatening Garrison at
Utica, Boston, and elsewhere, the destruction of printing plants and
newspaper offices, are almost too well known to call for repetition.
Even Connecticut, “the land of steady habits,” was not immune. In
Philadelphia a pro-slavery mob burned Pennsylvania Hall, dedicated to
Free Speech. We could multiply instances indefinitely, but need only
say that violence was the order of the day. Lincoln complained that
law and order had broken down, that “wild and furious passions” were
substituted for “the sober judgments of the courts,” that “outrages
committed by mobs form the everyday news of the times” and that they
were “common to the whole country.”
The passage of the new Fugitive Slave law brought more lawlessness.
Calhoun had rightly stated in the Senate that it was “impossible to
execute any law of Congress until the people of the states shall
cöoperate”—a clear statement that Prohibitionists would have done well
to remember. Everywhere in the North the law was not merely disobeyed
but bloodily denounced. In New York, for example, it was declared that
“instant death ... without judge or jury” should await anyone who
attempted to enforce it. The _New York Tribune_ declared that it would
be better to blow up the Capitol at Washington than to allow the law
to be passed in it. Throughout the states, in the decade preceding
the Civil War, there was an utter disregard of law in the sense that
people obeyed such national laws as they chose to and used violence to
defeat those they were opposed to. In the North the Fugitive Slave law
was the one specially attacked. In the South the mails were interfered
with and free speech was suppressed. A Northern antislavery man could
not enter the Southern states without danger to his life. Sums of
five thousand dollars and upward were offered for the kidnapping of
prominent speakers on the subject of slavery. In Kansas the struggle
between those who wished to have the state enter the Union as free and
those who wished it slave resulted in such constant violence as to give
the state the name of “bleeding Kansas,” though Professor Channing
finds that probably only two hundred people were killed—killed, it
must be remembered, however, in time of peace. To detail all the acts
of violence throughout the country in the decades before the war would
be impossible here. The total effect, however, would be to picture a
nation in which passion had usurped the place of law. The riots which
occurred after war was declared may be partially discarded for our
purpose, though they probably would not have occurred in a country in
which the people had an ingrained sense of law. The worst one in New
York, in 1863, lasted four days and resulted in the destruction of
$1,500,000 worth of property and the loss of one thousand killed and
wounded. It was followed by lesser riots at Detroit, Kingston, Elmira,
Newark, and elsewhere. In the country districts threats of arson and
murder were openly made.
The war over, we found ourselves with the Fourteenth and Fifteenth
Amendments to the Constitution, giving the negro the right of suffrage.
However these may or may not have been observed in the North, it is
obvious that they could not be and never have been in the South. To
have observed these Amendments, particularly the Fifteenth, in some
states, such as Alabama, where the negroes outnumbered the whites,
meant that the whites might be ruled by the blacks, and in any case
it meant serious trouble, racial feeling being what it was then and
is now. The complete nullification of such laws, having all the
sanction of being parts of the Constitution, could not fail to reduce
respect for law. Again, Americans obeyed such laws as they chose, and
disregarded or opposed by force such as they did not choose.
IV
We may now come to another phase of our national lawlessness. There is
a good deal of popular misunderstanding with regard to lynching. It is
generally regarded as rather peculiarly a Southern institution, and the
consequence of attempts at rape on whites by negroes. The term “lynch
law” appears to have been first used in 1834, and it is from that time
that the practice of lynching became common in the United States. At
first the most notorious cases were those of gamblers, such as occurred
in Vicksburg, Mississippi, and in Virginia. It was, however, also
practised in the North, and spread to California and the West after
the discovery of gold. In California, in 1855, out of five hundred and
thirty-five homicides committed there were but seven legal executions.
The celebrated Vigilance Committees were formed in San Francisco, each
of which hanged four men and banished about thirty. These “popular
tribunals” were also formed in Utah, Nevada, Oregon, Washington, Idaho,
Montana, Arizona, New Mexico, and Colorado during their early periods
of settlement.
That lynching was not confined to negroes, the South, or the crime of
rape is easily proved by such statistics as we have. I have no recent
figures, but as this chapter is concerned with our “heritage,” and not
our present lawlessness, this is not of account. In 1900 over 52 per
cent of the persons lynched in Illinois were white, over 78 per cent in
Indiana, over 54 per cent in Missouri, over 38 per cent in Kentucky,
and over 35 per cent in Texas. Tables prepared by the United States
Government failed to show any relation between the distribution of
lynchings and the proportions of blacks to the total state populations.
Nor did they show any correlation between the numbers of lynchings
and the percentages of illiterates or foreigners. The responsibility
therefore must rest on the literate native element.
In the period from 1882 to 1903 there were 2585 persons lynched in
the Southern states, of whom 567 were whites, 1985 negroes, and
33 “others”; in the Western states the figures were, respectively,
523 whites, 34 negroes, and 75; in the Eastern states, 79 whites,
41 negroes, and no “others.” In the country as a whole there were
thus lynched in the twenty years 3337 persons, of whom 1169, or
over one-third, were white, and 2060 negroes. In all three sections
the crime for which the greatest number of lynchings occurred was
murder. Rape comes next, with “minor offenses,” arson, theft, assault,
following in much smaller proportions. In our country in a time of
perfect peace there were thus an average of between three and four
lynchings every week in the year for the twenty-year period chosen by
hazard for examination. Allowing for the difference of population, is
it possible to conceive of two persons being murdered by individual
citizens, instead of allowing justice to take its course, every week in
England or France for a generation?
In the above rapid and wholly inadequate survey no attention has been
paid to the problem or statistics of ordinary crime. The United States
has no adequate criminal statistics even at the present day. Such a
survey projected into the past would be impossible. I have not been
concerned with, so to say, “crimes under law,” but with opposition to
or disrespect for law itself as law. Even thus I have neglected much
which would properly be included in a full treatment of the subject.
It is needless to say that we are not going to be able to shed this
heritage quickly or easily. In fact we have gone so far on the wrong
road that it is by no means certain that we can ever get back on the
right one even with the best of intentions. Inbred respect for law,
as I said in the beginning, is a plant of slow growth. For three
centuries we have been developing disrespect. Our heritage has made
recovery more difficult for us by bringing about conditions that
themselves help to increase our disrespect and lawlessness, aside from
the feeling of the individual citizen. This portion of our heritage
is in some part from our Puritan ancestry, North and South. The
Puritans insisted that their own ideals of life and manners should
be forced on the community at large, and they also believed that any
desirable change could be brought about by legislation. Partly from
Puritanism and partly from the exaggerated influence attributed to
the legislatures in colonial days for the reasons I have noted above,
Americans have believed that their ideals should be expressed in the
form of law, regardless of the practical question of whether such
laws could be enforced. They have apparently considered that the mere
presence of such laws will help _respect_ for the _ideal_ of conduct,
regardless of the fact that the presence of such unenforceable laws
will bring about _disrespect for law itself_. Every minority which has
had a bee in its bonnet has attempted to make that bee “home” into a
law, and to a remarkable extent the majorities have not cared, partly
because they take little interest in public affairs, but mainly because
they imagine that even if some “fool law” is passed they can disobey it
if they choose, as they have others. Because we have ceased to have any
respect for law we allow any sort of laws to be passed, and then—the
vicious circle continuing—our disrespect increases yet more because
of the nature of such laws. When Americans talk about their glorious
past, it may be well for them to remember that we have one of the most
sinister inheritances in this matter of law from which any civilized
nation could suffer, a heritage that we are apparently passing down to
our children in a still worse form. For this reason, if for no other, I
believe that the unenforced and unenforceable Eighteenth Amendment was
one of the heaviest blows ever directed against the moral life of any
nation.