Legislative Exorcism; or, The Belief in Word-Magic.
For ages, mankind were believers in magic. One of the phases was
Exorcism, or a pretended exercise of supernatural power, through
certain words of magic import. “Healing words,” says Van Helmont, “were
used against the devil and all diseases.” And it is asserted by the
Zendavesta that “many cures are performed by words.” That the magic
power of words was a belief of the Greeks and Romans, is evident from
their literature. Thus it is said of Plotin, that while in Sicily he
cured Porphyrius of a fever, “by wonder-working words.” We are told how
Orpheus’ song calmed the storm, and how Ulysses “stopped the bleeding
of wounds by the use of certain words.” They also tell us, that with
words, Cato cured sprains; Marcus Varrus removed tumors; and Servilius
Novianno restored sight to the eyes. It is gravely stated by Pliny that
Cato did not alone use the words, “motas, daries, dardaries, astaries,”
but likewise a green branch, four or five feet long, which he split in
two, and caused to be held over the injured limb. A similar power was
ascribed to the philosopher, Pythagoras. And if “ye olden chronicle” is
to be credited, the curses of Peter of Amiens and Bernard of Clairvaux,
“produced fearful spasms and sufferings, whilst their blessings
restored speech to the dumb and health to the sick.”
The belief in magic is not general in our age of the world. It
has gradually retired before the march of reason and the light of
scientific truth. That all nature, organic and inorganic, animate and
inanimate, is subject to a universal law of cause and effect, is now
a truism to every educated person. Science has forever destroyed the
curative influence of phrases. Reason sternly excludes verbal formulæ
from the realm of physical causation. That any mere words may be used
against disease or injury is now denied by enlightened opinion the
world over. In medicine, therefore, Exorcism is a thing of the past.
One aspect of the superstition still remains, as an obstacle to the
progress of humanity; the possibility of legislating morality into
men. Law-givers still cling to the power of “exorcism” by statute.
Their blind creed is: “beatification and education by law.” “To them,
laws are the cows, whose teats mankind should suck. To them, men are
as dough, which their wisdom would knead.” This adoration of the law
and legislators was systematically inculcated by the 18th century
publicists: Montesquieu, Robespierre, Rousseau, and St. Just. They
seem to teach that “the law cannot come out of us, but must be poured
into us.” But, as Erlanger has said with truth, he who undertakes to
give institutions to a people must feel within himself the capacity
to change human nature, to metamorphose every man, to transmute the
constitution of each individual, to strengthen them; in one word, “he
must take from mankind their own powers, and impart to them a foreign
power.”
Statesmen should recognize with Carpenter, that “society is the
gigantic growth of centuries, moving on in a resistless and orderly
march, with the precision and fatality of an astronomic orb.” The huge
being marches on with elephantine tread. The liberal sits on its front
and the conservative on its rear; but both are swept along, whether
they will or not, and both are shaken off ere long, inevitably, into
the dust. One reformer shouts “this way,” and another cries “that,” but
down comes the great foot and crushes both, indifferently; the man who
thought he was right, and the man who found he was wrong; crushing,
alike, him who would facilitate, and him who would impede its progress.
At least, it should be kept in mind, “that laws are made by the people,
and not the people by the laws.” Modern society is so burdened by
an enormous and complex overgrowth of law, that the necessity for
its existence is now a prevailing notion, to the end that men may be
kept in order: that, without the oppressive institution, people would
not follow a systematic life. On the other hand, all observation of
civilized races discovers the directly opposite. The instinct of man
is to regularity of life, and law is but a result or expression of
this. “As well attribute the organization of a crab to the influence
of its shell, as ascribe the orderly life of a nation to the action of
its laws.” The law may have a purpose, but to believe it will preserve
order is illusive. This it certainly does not effect, even with all
its machinery of police, courts and prisons. Fichte said: “The object
of all government is to render government superfluous.” The same
idea has been expressed by Whitman and Paine. Moreover, “if external
authority, of any kind, has a final purpose, it must be to establish
and consolidate an internal authority. When this process is complete,
government, in the ordinary sense, is already rendered superfluous.”
The world has been slow (or loath) to learn the only proper functions
of government. This must be clear to every reader of Bruce Smith,
Lieber and Dick. In the governments of oriental antiquity, political
authority was clothed with a super-eminent and absolute jurisdiction
over the whole life of its subjects; “the manners of their subjects,
their rank, their condition, mode of life, and daily occupations, were
all fixed by the law.”
And, in the opinion of Grecian philosophers, the state was everything,
the individual nothing. In their judgment, the government should not
permit any individual to waste his power and energy, nor should he be
allowed to misdirect it. They insisted the law must first devise the
model of a perfect citizen; and then, by a system of discipline, mould,
or rather distort, into agreement therewith, the character of every
citizen. The powers of state, therefore, should embrace individual
life in its entirety; from infancy to mature age, “in all conditions
and relations, whether domestic, religious, social, industrial or
political.”
Such teachings had their illustration in the administration of Greek
governments. In Sparta, for example, under the reign of Lycurgus,
the citizen belonged to the state, rather than to the family. The
individual Athenian did not have a right the Archons were “bound to
respect.” Draco punished even laziness with death, and Solon prohibited
costly sacrifices at funerals. In Greece, Lycurgus seems to have been
the first legislator against luxury. He enacted, for example, that no
Spartan should own a house, or household article, which had been made
with a finer implement than an axe or a saw; and that no cook should
use any other spice than salt and vinegar. Our authorities are Ephorus
and Diogenes Laertius. The sumptuary prohibitions of Solon, according
to Plutarch, were aimed at the female passion for dress, as well as the
pomp of funerals. He likewise placed surveillance over the luxury of
banquets.
The Dorian races were disposed to austere and rigid habits of life.
A Laconian could not lawfully attend a drinking entertainment. In
Lacedæmonia, frugality and simplicity were the object of the pheiditia.
Gold and silver were interdicted, and their legislation permitted the
use of iron money alone. In Magna Græcia, the Pythagoreans encouraged
the sumptuary policy. Zaleucus, the Locrian legislator, enacted that no
woman should appear in public wearing gold ornaments, or embroidered
apparel, unless her designs were unchaste.
Roman statesmen were not wiser, in their day, than those of Greece.
From the time of the Kings, they sought by law to regulate luxurious
tendencies. We find it in the law of the Twelve Tables: “Do not carve
the wood which is to serve for a funeral pile. Have no weeping women
to tear their cheeks; no gold, no coronets.” Certain foreign articles
of luxury were prohibited about 189 B. C. An important part of the
legislation of Sulla, Cæsar, Crassus, Antony, Augustus and Tiberius,
related to the expenditures for food, funerals and games of chance.
Says Plutarch: “The Romans thought the liberty ought not to be left
to each private citizen to marry at will, to choose his manner of
life, to make feasts; in short, to follow his desires and his tastes,
without being subject to the judgment and supervision of anyone.” The
Oppian Law forbade matrons to have more than a half-ounce of gold,
to wear garments of diversified color, or to use carriages in Rome.
Following a revolt of the Women, in 195 B. C., this law was abrogated.
Inspired by Cato, the Censor, fourteen years later, the Orchian Law
was promulgated. It limited the table expenses, as did the Fannian Law
twenty years after. The Lex Orchia limited the number of guests to be
present at a feast. The general cost of entertainment was fixed by
the Lex Fannia. A limit of one hundred asses was established for some
festivals, and thirty asses for others. Ordinary entertainments were
restricted to ten asses. The Didian Law extended to all Italy.
In Greece, sumptuary laws were seldom or never regarded by the people,
who always entered into a tacit and general conspiracy against their
enforcement. Notwithstanding the Roman _notatio censoria_, luxury
continued to increase with the growth of wealth. No law of senate or
emperor could restrain the tendency. “From first to last,” writes
the historian, “all were habitually transgressed.” In the time of
Tertullian they appear to be of the past.
Instances of like legislation disfigure the statute-books of every
civilized country downward from the fifth century, A. D. All sumptuary
laws, at Rome, were formally repealed by the later emperors; but the
folly thereafter re-appeared when European society began to rally and
segregate under Charlemagne. To illustrate, “in the latter middle
ages, knights were allowed to wear gold, and esquires only silver; the
former damask, the latter satin of taffeta; when the esquires used
damask, velvet was reserved for the knights.” The first legislation
of this character, in the modern world, was enacted by Frederick II.,
in Italy; James I., in Aragon; Philip IV., in France; Edward II. and
Edward III., in England. Commencing in France with Charlemagne, it
first became extensive and flourished under Philip IV. and Charles
VI. From Edward III. until the Reformation, it was in great favor in
England. Great was the absurdity to which legislators were carried by
this vain policy. In Scotland, for example, one parliament forbade
ladies to attend church with the face muffled in a veil, and another
fulminated against superfluous banqueting and the inordinate use of
foreign spices; while a Danish law provided that no servant girl should
wear her hair curled. The edicts of Philip IV. related to extravagance
at table and in dress. An edict of Charles V. forbade the use of
long-pointed shoes. Charles VI. allowed no one to exceed a soup and
two dishes at dinner. Later French kings sought to restrict the use of
gold, silver, silks, embroidery, and fine linen. From Blanqui we take a
sample ordinance of the character under consideration. “The said Lord
the King, being duly informed that the great superfluity of meat at
weddings, feasts and banquets, brings about the high price of fowls and
game, wills and decrees that the ordinance on this subject be renewed
and kept; and for the continuance of the same, that those who make such
feasts, as well as the stewards who prepare and conduct them, and the
cooks who serve them, be punished with the penalties hereunto affixed.
That every sort of fowl and game brought to the markets shall be seen
and visited by the poulterer-wardens, in the presence of the officers
of the police and bourgeois clerks to the aforesaid, who shall be
present at the said markets, and shall cause a report to be made to the
police, by the said wardens. The public shall be likewise bound to live
according to the ordinance of the King, without exceeding the limit,
under penalty of such pecuniary fines as are herein set forth against
the inn-keeper, so that neither by private understanding nor common
consent shall the ordinance be violated.” During the same year, another
ordinance provided “that no bourgeois woman shall have a chariot; no
bourgeois man or woman shall wear green, or grey, or ermine, and they
shall dispose of those they have, by a year from Easter next. The
dukes, counts and barons of 6000 livres, in land, or more, may have
four robes a year, and no more, and the women as many. A knight who has
3000 livres, in land, may have three robes a year and no more; and one
of these three robes shall be for summer. At the principal meals of the
day no one shall have but two viands and a pork soup, and let him not
deceive about it. It is ordained that no prelate or baron shall have
a robe for body of more than 25 Tournish sous, a Paris ell.” In 1294
it was decreed “that every manner of people, who have not an income of
6000 Tournish livres, shall not use, and will not be able to use, any
gold or silver plate for drinking, for eating, or for other use, and
that no person, under penalty of fine and imprisonment, shall practice
any fraud about it.”
In France, laws of this character disappeared near the end of the 16th
century. Under Louis XV. all such laws were practically a dead letter.
“These ordinances are the history of but yesterday,” says an able and
profound student of French legislation; “but ideas and sentiments have
gone far in advance of facts. We have difficulty in comprehending the
interference of government in the domestic affairs of families, and in
contracts which concern only private individuals. Opinion has undergone
an entire revolution. Sumptuary laws can no longer be proposed. We
need not think the change is due to our wisdom, to our pretended
superiority to the ancients; let us simply recognize that the essential
principle of society has changed; the world moves on another basis....
In no century were these laws observed to any great extent. Enactments
of this kind were never effectual in France. Since the Revolution,
no sumptuary laws have been enacted, and yet the luxury of attire
which formerly distinguished the nobility has disappeared. A duke
dresses like anybody else, and he would be ridiculed if he sought to
distinguish himself by a manner of dress different from others.”
It has been observed by one of the great statesmen of England, that
the broad principles of freedom had been early recognized in that
country, and understood by even the citizens of minimum intelligence;
for instance, freedom of locomotion, freedom in the disposition of
property, freedom of opinion in politics and religion. But that
other important features of the same principle were not so quickly
and clearly understood. “I refer,” he continues, “to such matters as
freedom of commercial intercourse and exchange, freedom of contract
in the natural rise and fall of wages and in the condition of labor;
freedom of individual taste and expenditure, in the more private
concerns of life. In many cases, these were matters which affected the
poor and rich alike, but principally the poor, who, in their meagre
parliamentary representation, enjoyed few opportunities for effectual
protest. One can only account for the continuance of those which
materially affected the better classes, who did enjoy representation,
to the fact that, not being familiar with the fundamental economic
laws, which are now so widely understood, they were not prompted to any
practical resistance. It is highly probable, too, that for want of this
knowledge, most people rested satisfied with the vague idea that, in
some way or other, though not very clear, such restrictive legislation
produced some good to somebody.” We pass over those legislative and
executive interferences, which present “every possible contrivance
for hampering the energies of commerce.” Purely economic questions
are not germane to our discussion; such as the numerous and ingenious
restraints upon foreign trade; the attempts to regulate the rate of
wages and the price of food.
Richard II., Henry IV., and Edward IV. legislated against the liveried
suits of the nobility. This was also prohibited by Henry VII.; and
yet, even under James I., says Hume, “we find ambassadors accompanied
by a suite of 500 or 300 noblemen.” During the reign of Edward III.
it was enacted that no man should be allowed more than two courses at
dinner or supper, or more than two kinds of food in each course. Three
courses were permitted on the festival days of the year. Foreign cloth
was allowed to the royal family alone. Unless a man possessed at least
£100 per annum he was forbidden furs, skins and silks. During the
same reign, another act divided the people of England into classes,
and prescribed the apparel of each. In the social scale it did not go
higher than knights, and minutely regulated the clothing of women and
children. It was repealed the following year. In 1363 it was enacted
that servants should have only one meal a day of flesh or fish. The
statute of 1444 attempted to regulate the price of clothing for each
year: a bailiff, 50_s._; principal servant, 40_s._; ordinary servant,
33_s._ 4_d._ James I., of Scotland, forbade not only “sumptuous
clothing,” but the use of pies and baked meats, to all under the rank
of baron. The Scottish sumptuary law of 1612 was the last in Great
Britain. The English laws were largely repealed during the reign of
James I. A few remained on the statute book as late as 1856. Mr. Froude
has exposed the folly of their existence.
It has been said of the English laws they “were at all times inspired
by a desire to arrest an irresistible movement, resulting from the very
force of things--from the logical development of human activity. They
were, moreover, powerless, and always evaded by a sort of tacit and
general conspiracy of all the citizens, without anyone being able to
find fault with the principle, without anyone thinking of contesting
the power of the legislator on this point.”
Roscher remarks: “In Ireland the government had endeavored for a
long time to preserve that country from the ravages of alcohol, by
the imposition of the highest taxes, and the severest penalties for
smuggling. Every workman in an illegal distillery was transported for
seven years, and every town in which such a one was found was subject
to a heavy fine. All in vain. Only numberless acts of violence were now
added to beastly drunkenness.”
In another place, Roscher continues thus: “Where it has been attempted
to suppress the consumption of popular delicacies, the impossibility of
enforcing sumptuary laws has been most strikingly observed. Thus, in
the 16th century, an effort was made as regards brandy; in the 17th,
as regards tobacco; in the 18th, as regards coffee. The Hessian law
of 1530 provided that only apothecaries should retail brandy. In 1624
Papal excommunication was fulminated against all who took snuff in
church, and was repeated in 1690. According to a Turkish law of 1610,
all smokers should have their pipes broken against the nose. In 1634 a
Russian law prohibited smoking under penalty of death. In Switzerland,
even in the 17th century, no one could smoke except in secret. In its
native place even coffee had a hard struggle. Prohibited in Turkey in
1633 under pain of death; it was still prohibited in Basel in 1769,
and could be sold by apothecaries only as medicine. In Hanover the
coffee trade was prohibited in 1780. When governments discovered the
fruitlessness of these efforts, they gave up the prohibition of these
luxuries, and instead substituted taxes on them, thus aiming to combine
a moral and a fiscal end. Even Cato took this course. His office of
censor, which united the highest moral superintendence with the highest
financial guidance, must of itself have led him in this direction.”
Strange it is how slowly men learn by experience. We know of the many
oppressions in England “for opinion’s sake.” History tells us that
the puritan fathers sought “freedom of conscience” in the wilds of
America. Yet, scarcely were the “pilgrims” of New England wonted to a
strange and inhospitable land, than what they required for themselves
was denied to others. In their fanaticism, the “soul liberty” of Roger
Williams was violated in every conceivable way. Personal freedom was
violated to an extent that is now the detestation of right-thinking
persons. Execrable for their tyrannical spirit, are some of the records
of Massachusetts Bay, Plymouth, New Haven Colony and Connecticut. The
following extracts are taken from the records of the General Court of
the Colony of Massachusetts Bay:
“1635: Whereas, complaints hath bene made to this Courte that dyvers
persons, within this jurisdiction, doe usually absent themselves from
Church meetings upon the Lord’s Day, power is therefore given to any
two assistants to heare and sensure, either by fine or imprisonment,
all misdemeanors of that kind, committed by any inhabitant within this
jurisdiction, provided they exceede not the fine of 15 shillings for
any one offense.”
“1669: Any person or persons that shalle be found smoking tobacco on
the Lord’s Day, going to or coming from the meetings, within two miles
of the meeting house, shall pay 12 pence for every such default to the
colonies’ use.”
“1692: All and every justices of the peace, constables and tything
men are required to restrain all persons from swimming in the water;
unnecessary and unreasonable walking in the streets or fields in the
toun of Boston, or other places; in the evening preceding the Lord’s
Day, or any other part of the said day or the evening following.”
“1634: The court, taking into consideration the greate, superfluous and
unnecessary expenses occassioned by some newe and immodest fashions,
as also the ordinary wearing of golde, silver, silke, laces, girdles,
hat-bands, etc., hath, therefore, ordered that noe person, either man
or woman, shall hereafter make or buy any apparell, either woolen,
silke or lynen, with any lace on it, silver, golde, silke or thread,
under the penalty of the forfeiture of such clothes.”
“1782: Be it enacted that each person, being able of body and mind, not
otherwise necessarily prevented, who shall, for the space of one month
together, absent himself or herself from the public worship of God, on
the Lord’s Day, shall forfeit and pay the sum of ten shillings.”
In old Connecticut we find legislation similar in character. In 1647:
“Forasmuch, as it is observed that many abuses are crept in and
committed by the frequent taking of tobacco, it is ordered by the
authority of this Court, that no person under the age of 20 years, nor
any other that hath not accustomed himself to the use thereof, shall
take any tobacco until he hath brought a certificate under the hands of
some who are approved for knowledge and skill in physic, that it is
useful to him and that he hath received a license from the Court for
the same.”
“1643: Whoever shall prophane the Lord’s Day, or any part of it,
by unlawful sport, recreation or otherwise, whether wilfully or in
careless neglect, shall be duly punished by fine, imprisonment, or
corporally, according to the nature and measure of the sin and offense.”
Here are some of the celebrated New Haven “Blue Laws:”
“Whoever wears clothes trimmed with golde, silver or bone lace, above
two shillings by the yard, shall be presented to the Grand Jurors, and
the selectmen shall tax the offender at £300 estate.”
“No one shall read Common Prayer, keep Xmas or Saint’s Days, make
minced pies, dance, play cards, or play on any instrument of music,
except the drum, trumpet and jew’s-harp.”
“No one shall run on the Sabbath Day, or walk in the Garden or
elsewhere, except reverently to and from meeting.”
“No one shall travel, cook victuals, make beds, sweep house, cut hair
or shave, on the Sabbath Day.”
“No woman shall kiss her child on the Sabbath or fasting day.”
“If any man shall kiss his wife, or any wife her husband, on the Lord’s
Day, the party in fault shall be punished at the discretion of the
Court of Magistrates.”
“Every man and woman duly, twice a day, upon the first tolling of the
bell, repair into the church to heare divine service upon pain of
losing his or her day’s allowance, for the first omission; for the
second to be whipped, and for the third to be condemned to the galleys
for six months.”
“If any man, after legall conviction, shall have or worship any other
god but the Lord God, hee shall bee put to death.”
“If any person turns Quaker, he shall be banished and not suffered to
return, upon the pains of death.”
“No priest shall abide in this dominion, he shall be banished and
suffer death on his return.”
“No man shall hold any office who is not sound in the faith.”
“No food or lodging shall be afforded to a Quaker, Adamite, or other
heretic.”
“Every man shall have his hair cut round according to a cap.”
Such are a few of the laws that disgrace the beginning of our national
life. Repealed they never were, save by the scorn of time, or the
revolt of the human heart, as it struggled into a wider and brighter
existence. They were only effective as the expression of a spirit then
prevalent. Forward marched the soul, and behind is left the hideous
husk. Here and there, on the statute-books of certain states, vestiges
may remain of Sabbatarian legislation, but they are a dead letter, to
enforce which is seldom or never attempted.
Roscher observes, “That the puritanical laws, which some of the states
have passed prohibiting all sales of spirituous liquors, except
for ecclesiastical, medical or chemical purposes, have been found
impossible of enforcement.” Said Dr. Dio Lewis on this subject: “A
very striking illustration of the weakness of law, when it comes in
contact with the instinct of liberty, is the result of prohibition
in Maine. I have taken pains to learn the facts in that state. I
traveled it throughout and conversed with a large number of its leading
citizens, almost exclusively temperance men, and became satisfied
(notwithstanding the prohibitory law), that intemperance is the great
overwhelming curse of the Pine Tree State.” The Doctor then found
fully 300 grog shops in Bangor. He says of Portland, also, the number
of arrests for drunkenness in 1874 was 2011. He is authority for the
statement that, in 1873, the state prison inspectors of Maine reported
the enormous number of 17,808 arrests for drunkenness during that year.
Hon. James McGinnis, of the St. Louis bar, several years ago, gave
the prohibitory legislation of the whole country (and its practical
workings) an exhaustive consideration in all aspects. The results of
his study, published to the world, revealed the same condition of
affairs in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York, Delaware, Maryland, Ohio, Indiana, Nebraska,
Iowa, and Kansas. On every hand, past and present, he “beheld the
impracticability of prohibition.” “I now appeal,” he says, “to the
fair-minded reader to give his thoughtful attention to the facts and
figures which I have truly and fairly presented, to show that neither
crime, pauperism, intemperance, nor any of the ills which are popularly
supposed to grow out of intemperance, have been at all lessened by
prohibition.”
The political economists are practically unanimous in their
reprobation of these laws. Adam Smith vigorously protests against
their impertinence and presumption. Of sumptuary laws it has been said
their enforcement is exceedingly difficult, as it is always harder
to superintend consumption than production. “The latter is conducted
in definite localities. The former is carried on in the secrecy of a
thousand homes. Besides, such laws have very often the effect to make
forbidden fruit all the sweeter.” Spite of the penalties attached to
their violation, and of redoubled measures of control, government
after government have been compelled to admit their failure in this
direction. Laws of this nature always involve an abridgement of
individual “liberty,” and of the natural right of every man to do what
he “will” with his own. They involve the assumption, also, that a
government, with the exercise of paternal authority can judge better
than the citizen what will best subserve his or her welfare, in the
use of what they have. “But such action belongs more properly to the
spiritual than to the temporal power. In ancient life, where there
was a confusion of the two powers in the state system, sumptuary
legislation was more natural than in the modern world, where those
powers have been generally, though imperfectly, separated.”
“I have learned to doubt,” wrote Dr. Dio Lewis, “whether law is very
potent in the cure of moral evil. Force is a good agency in breaking
rocks and subduing wild beasts; but in curing immorality, in which
we strive to regulate the action and reaction of the faculties and
passions of the human soul, force is about as well adapted to our
purpose as a sledge-hammer to regulating a watch. Some people seem to
have the impression that society is restrained from evil by law; that
our wives and daughters are virtuous because there is a law against
prostitution; that our exemplary citizens refrain from profanity and
excess in gaming and drinking because they are forbidden by law; that
somehow society is kept in order by law.
“It is not denied that Massachusetts has to-day upon her statute-books
other laws involving the same violation of personal liberty as
prohibition; but every law interfering with personal habits and
propensities has no practical vitality.
“For example, prostitution is an enormous evil; and we have a
severe statute against it; but, as a matter of fact, if a house of
prostitution be conducted in a quiet, unobtrusive way, the authorities
cannot break it up. If any prohibitionist can devise a method by which
the authorities can break up such a house, it would be easy to sell his
discovery to property holders of New York City for a hundred million of
dollars.
“Scattered throughout this city (Boston) there are unnumbered rooms
over stores, and other places of business, and in private houses,
occupied by persons who are living in the relation of husband and
wife without legal marriage. There are not two punishments for every
hundred thousand violations of the statutes against such intimacies.
“Gambling is very common in our city. There is a great number of rooms,
or suites of rooms, devoted to this practice. In club houses and many
hotels, gambling may be found every night, and often lasting all night.
Not a fiftieth part of the gambling done in this city takes place
in gambling rooms. Why does it never occur to anybody to attempt to
enforce the law against gambling in our clubs and other private houses;
should they attempt it they would signally fail.”
Although this was said of New England, it is representative of the
United States and the civilized world. A like picture might be drawn
of every city in our land and throughout Europe. Every candid and
intelligent magistrate, or police official, in the country will admit
that the law never has, and never can, prevent gaming, intemperance
or prostitution. This has been publicly acknowledged by the most
eminent men of affairs in Europe. That it is impossible to suppress or
exterminate the “social evil” has been demonstrated by Acton, Tait,
Parent and Du Chatelet. The latter avows that “licensed houses are the
most judicious and the most consistent with good morals.” The police
establishments of the continent, finding it impossible to prevent
the existence of houses of ill-fame, realized the necessity, not of
authorizing, but of licensing them. The vice is now subject to police
supervision in Paris, Toulon, Lyons, Strasburg, Brest, Hamburg, Berlin,
Vienna, Naples, Brussels, Rheims, Bordeaux, Marseilles, Copenhagen,
Madrid, Malta, Lisbon, Amsterdam and St. Petersburg. A like policy
obtains in Bombay, Hong Kong, Japan, New South Wales and Cape Colony.
On the contrary, England wages war against prostitution. Is it with
success? No; in this respect her cities are the worst in Europe. In
that country 42,000 illegitimate children were born in 1851. It was
estimated that within the five years preceding, 212,000 females had
strayed from the paths of virtue, and thus taken the first step in
prostitution. In 1832, London had a population of 1,000,000, and her
known prostitutes numbered 10,000. Within her limits were then 3,300
brothels. At that time, in Liverpool, there were 5,000 fallen women.
Of houses of ill-fame Dublin had 355; Edinburgh, 219; Glasgow, 204;
Liverpool, 770; Manchester, 308; Birmingham, 797; Hull, 175; Leeds,
179; Norwich, 194. In England, in 1865, there were 500,000 prostitutes.
It has been computed that the unfortunates number about 86,000 in the
London of to-day. It is not surprising, then, that the constabulary of
Great Britain are in despair of their power for good over this evil.
“Sooner or later (they realize) the principle of individual liberty
must triumph, and prostitution must become, under the shadow of general
principles, as unrestricted as any other commerce, moral or immoral.”
In New York City, also, the law has always attempted to repress the
“social evil,” but without avail. This has been openly recognized by
those in authority. In 1875, 1876, and 1877 licensed prostitution
was recommended by a committee of the State Legislature, the Grand
Jury of the City and County of New York, and the Commissioner of
Public Charities and Correction. The committee assumed “that houses
of prostitution must exist;” and its members, therefore, took it upon
themselves “to earnestly recommend to the Legislature the regulating,
or permitting,” or, as they phrased it, “if the word be not deemed
offensive, the licensing of prostitution.” In June, 1876, the Grand
Jury of the Court of General Sessions of the same county and state,
made an official presentment concerning prostitution, in which they
say “that however abhorrent to the views of some, any legislation may
be, which appears to legalize so great an evil, still the fact must
not be lost sight of that it is an evil impossible to suppress, yet
comparatively easy to regulate and circumscribe.” They conclude with
a memorial to the Legislature, “to adopt as early as practicable some
system of laws calculated to confine houses of prostitution, in the
large cities of this state, within certain specified limits, and to
subject them at all times to a careful and vigilant supervision of the
Boards of Health and Police.”
Punitory laws never have, and never will cure the evils to which
society is liable. “Life is sweet,” some one has said, and yet even
the death penalty does not prevent murder. If the menace of death is
not a deterrent, what can be said for lesser penalties like fines and
imprisonment. That capital punishment is not a preventive of crime
was (upon investigation) the conviction of Bentham, Beccaria, George
Clinton, Lord Brougham, Judge J. W. Edmunds, William H. Seward, Wendell
Phillips, Douglas Jerrold, Cassius M. Clay, Dr. Lushington, Edward
Livingston, Theodore Parker, Vice-President Dallas, DeWitt Clinton,
Victor Hugo, Mittermaier, John Howard, Sir Samuel Romilly, Earl
Russell, Lord Houghton, Lord Osborne, John Bright, Lord Hobart, Lord
Kelly, Frederick Robertson, Prof. Fawcett, Charles Dickens, John Stuart
Mill, Canning, Thomas Jefferson, and hundreds of other able, thoughtful
and conscientious men. Their position was not only grounded on
observation, but fortified by the experience of Tuscany, Spain, Italy,
Switzerland, Bavaria, Belgium, San Marino, Denmark, Norway, Sweden,
Michigan, Wisconsin, Minnesota, Maine, Vermont, and Rhode Island.
“There is no passion in the mind of man,” said Lord Bacon, “so weak,
but it mates and masters the fear of death; and therefore death is no
such terrible enemy when a man hath so many attendants about him that
can win the combat of him. Revenge triumphs over death; love slights
it; honor aspireth to it; grief fleeth to it; fear occupieth it.” And
if “the fear of the great future,” writes Bovee, “when painted with the
horrors such as only a Milton or a Pollok could depict, produces no
more marked effect on human action; it is hardly reasonable to suppose
that the menace of death by human law, will be very effective in the
repression of crime.”
The truth is clear to Rev. Octavius B. Frothingham. He declares that
neither crime nor vice can be prevented, remedied, or expelled by force
of law. “Nature will have her way, if not by one channel, then by
another. She will plunge underground, and come up in unexpected spots.
Cunning comes to her assistance. She makes alliance with subterfuge
and deceit. She is sly, swift, ubiquitous. Disappearing in New York,
she turns up in Philadelphia. Expelled from the cities, she takes
refuge in the towns; banished from the towns, she finds coverts in the
cities; hiding in the dens and slums, creeping into the lanes, mingling
with the crowd of harmless things, sheltering herself behind law.
She is a Proteus, able to take on every possible shape of innocence.
Refuse her brandy, she will take opium, morphine, ether, tobacco,
strong coffee, in quantities equivalent to the stimulant desired. You
fancy the community becoming temperate in one respect, and find it
becoming intemperate in another. Opium eaters multiply as dram-drinkers
decrease. The propensity is alive still, and perhaps provoked to
activity by the efforts made to suppress it. The natural appetite being
reinforced by anger, spite, the spirit of resistance to persecution,
which grows dogged and stubborn, fortifying the sense of injustice by
the pride of self-will.
“As if impatient at the slowness of the converting process, weary of
the task of planting vice out, of choking the weeds of instinct with
the flowers of grace, the church undertook, with violent hand, to
pull up the weeds by main force. Instead of abolishing the hydra by
a beautiful law of evolution, which should create a series of nobler
growths; it undertook to cut off the poisonous heads, one by one. It
took boys and girls, at the tenderest age, out of the world, confined
them in religious houses, refused them the joy of the flesh, and the
joy of the eyes, and the pride of life, barred the gates of every
terrestrial garden, mortified their desires, kept them occupied with
prayers and contemplations, and so tried to starve nature to death.
“Christianity, was as consistent, tried to repress the disposition
to unbelief, in its opinion the most fruitful source of vice. The
disposition to unbelief was regarded as the deadliest symptom of the
natural, unconverted heart. To counteract it by an opposite disposition
to belief was tedious and difficult, and the method of repression was
resorted to. The civic power was enlisted in the work of exterminating
pernicious error. Tribunals were created, laws were passed, judges
and executioners were appointed, penalties were devised, heretical
schools were broken up, heretical books were burned, heretical teachers
were banished, silenced, incarcerated, consigned to the flames. Whole
provinces were devastated, towns were destroyed, populations turned
adrift to perish; the entire field of unorthodox thought was ploughed
over and sown with salt. And what was the result of the method, carried
out on this vast scale, with full ecclesiastical and civil powers--the
sacred and the secular authorities combining, the sympathy of the
Christian world aiding, no public opinion opposing, the resources
of wealth conspiring with the resources of fanaticism, to make the
policy of suppression effective? The issue is familiar to all who
care to know the truth, from the reports of historians, who have made
it their business to ascertain and tell the facts. They certainly do
not bear out the conclusion that the method of suppression is wise,
or even practical. On the contrary, they suggest the opinion that
it is impractical as it is unwise. The failure of the method was so
disastrous that it quite defeated the ends.
“If one thing is demonstrated by human history, it is this:--the
attempt to suppress human nature, under any form, so it be nature
that is suppressed, is futile. The old proverbs, which say, ‘Drive
nature out at the door, and she comes in at the window;’ ‘You cannot
expel nature with a fork;’ hold out a truth that is for all time....
Deeply rooted propensities, habits which have become a second nature,
cannot be thus dealt with. No Hercules’ club will avail to kill the
vital principle that grows venomous heads faster than they can be
bruised. The effort to suppress nature by violent measures, is always
followed, always produces a reaction, that is exactly proportioned in
strength to the effort, and fairly balances it. Healthy progress is
slow, gradual, measured, according to the sure conditions of cause and
effect. It consists of a long line of close sequences, knit together,
not mechanically, like a chain, but organically, like a muscle or a
nerve. Every inch of growth implies a preceding inch of growth; there
is no such thing as jump or leap from point to point. You do not make
the elastic band longer by stretching it; you but loosen the cohesion
of its parts; the strain being relaxed, the band resumes its first
condition; the strain being continued, the band looses its elasticity
and breaks. There is no more power than there is.”
M. Guizot, statesman and historian, thought it a gross delusion to
believe in the sovereign power of political machinery. Every day
discloses a failure, every day there reappears the belief that it
needs but an act of some legislative body and a corps of officials
to effect any purpose. The faith of mankind is nowhere better seen.
Disappointment has been preached from the first: “Put not thy trust in
legislation.” Yet the trust in legislation seems scarcely diminished.
Is it not time to reject the law as a social panacea? We should now
realize that measures are usually quite different in effect from what
has been expected. It would be difficult to estimate the number of
legislative disappointments in English and American history; “or the
amount of harm which has been inflicted on society by abortive attempts
at statesmanship.” History demonstrates the incapacity of law-givers.
Says Mr. Jensen, “From the statute of Merton (20 Henry III.) to the
end of 1872, there had been passed 18,110 public acts, of which he
estimated that four-fifths had been partially or wholly repealed.”
And Herbert Spencer estimated a few years ago that “in the last three
sessions of the English parliament, there have been totally repealed
650 acts, belonging to the present reign alone.”
Buckle said, in this connection, every great reform has consisted
“not in doing something new, but in undoing something old. The most
valuable additions made to legislation have been enactments destructive
of preceding legislation, and the best laws which have been passed have
been those by which some former laws were repealed.... We owe no thanks
to law-givers as a class; for, since the most valuable improvements in
legislation are those which subvert preceding legislation, it is clear
that the balance of good cannot be on their side. It is clear that
the progress of civilization cannot be due to those who, on the most
important subjects, have done so much harm that their successors are
considered benefactors, simply because they reverse their policy, and
thus restored affairs to the state in which they would have remained,
if politicians had allowed them to run on in the course which the wants
of society required.”
In the name of “liberty and equality,” a brave battle has been fought
for individuality. Unjust and unwise interference by the state has
been ably resisted. It is demanded that private judgment be released
from the embrace of authority. The truth is, one man has no natural
right to make laws for another. True, he may repel another, when
his own rights are infringed, but he has no right to govern him.
The individual is sovereign merely over himself, and not over his
fellow-man.
The greatest minds now insist an individual will more freely act, not
only for the furtherance of personal interests, but also for collective
interests, without being constrained thereto by an external power.
Whenever room is to be made, they say, for the advance of society,
public authority must retire within its narrowest jurisdiction;
yielding, because of its impracticability, all control over concerns
purely personal. “Who remembers having done anything, or having
refrained from doing anything, on account of the statutes? If we could
realize how little civil law contributes to the good conduct and
well-being of society, our interest in legislators would be greatly
lessened. Of the millions upon millions of acts of kindness and justice
which go to make up civilized life, I take it that nine in ten would
not be performed at all, if they were required by law.
John Stuart Mill has clearly defined the limit of individual
“sovereignty”--as it is termed--and where the authority of society
should begin. “Each will receive its proper share, if each has that
which more particularly concerns it. To individuality should belong the
part of life in which it is chiefly the individual that is interested;
to society, the part which chiefly interests society.
“The acts of an individual may be hurtful to others, or wanting in due
consideration for their welfare, without going the length of violating
their constituted rights. The offender may then be justly punished by
opinion, though not by law. As soon as any part of a person’s conduct
affects prejudicially the interests of others, society has jurisdiction
over it, and the question whether the general welfare will or will not
be promoted by interfering with it, becomes an open one. But there is
no room for entertaining any such question, when a person’s conduct
affects the interest of no person besides himself, or need not affect
them unless they like, all the persons concerned being of full age,
and with the ordinary amount of understanding. In all such cases there
should be perfect freedom, legal and social, to do the action and stand
the consequences.”
Everybody agrees with this proposition, in the abstract. At this period
of time, nobody would dispute “personal liberty,” as a “glittering
generality.” People are too smart for that. It would be impolite and
unfashionable. They would agree with you, perhaps, that “personal
liberty” is the source of all progress, the lever of all conquests, the
inspiration of all achievements. “The great, vital, pivotal fact of
human life; all progress and all happiness begin and end in personal
freedom.” O yes, they will readily agree with the rhetoric involved.
“The prize, the precious jewel of the ages, is personal liberty. It
has no equivalents. Untold wealth, a mine of diamonds, a palace, are
baubles by the side of personal liberty. We recognize the supreme
importance of this principle. We are willing that all men should be
free--if they will only do what is best for them. We rejoice in the
utmost liberty of opinion and action--if people will only do and say
what is right.”
Thus is “freedom” trespassed upon, under pretence that is for the
good of the man or men whose rights are violated. Such was probably
the pretext for every tyrannical invasion of popular rights known
to history. Thus was it quaintly put by Dio Lewis: “The Inquisition
believed in the perfect liberty of all men to be Catholics, but if
they caught a man with other notions about salvation, they put a
thumb-screw on him. Our Puritan fathers believed in personal freedom
as no other men ever did. They left their homes, crossed a stormy
ocean, and braved a thousand dangers, that they might be free to
think and say what they pleased. And they were perfectly willing that
all who came along might think and say what they pleased, unless,
as sometimes unfortunately happened, the other men said and thought
things which conflicted with the things which the fathers thought and
said. They sometimes came across a Quaker, whose views did not seem
quite the thing, and they hung him. Our New England fathers believed
in ‘religious liberty.’ Indeed, ‘religious liberty’ was their constant
boast; but if a man did not believe in hell, they would not let him
testify in court.... But our fathers were always very kind about it;
they said he was at liberty, perfect liberty, at any time to believe in
hell, and then he might swear a blue streak.”
What is really meant by this definition of “personal liberty” is the
absolute right of every individual that every other individual shall
act, in every respect, exactly as he ought; “that whosoever fails
thereof, in the smallest particular, violates my social right and
entitles me to demand of the legislature the removal of the grievance.”
“This doctrine,” continued Mill, “ascribes to all mankind a vested
interest in each other’s moral, intellectual, and physical perfection,
to be defined by each claimant, according to his own standard.”
Of this class of men Dr. Lewis well said: “They consider themselves
born to control other men. They are ever inquiring, ‘What ought this
man to do?’ and if that man refuses to do it, ‘How can we compel him?’
They proceed thus: ‘Resolved, That the righteous should govern the
world. Resolved, That we are the righteous.’”
In what language can I fitly designate a principle of action so
impertinent and presumptious? Who can deny the moral “liberty” of his
fellow creature, as an abstract proposition? Is not the moral equality,
or independence of man one of his essential rights? Neither one, nor
any number of persons, is warranted in saying to another of mature
years, what the latter shall, or shall not do with his life for his
own benefit. “He is most deeply interested in his own well-being; the
interest which another person can have in it is trifling, compared with
that which he himself has.” It is time for society to distinguish,
sharply, between the province of morality and that of legislation.
With the same end in view, perhaps, yet they should differ widely in
extent. Admit that morals and the law have the same center, they have
not the same circumference. There may be a moral guide to the conduct
of an individual, through all the details of life, through all the
relationships of society; but legislation cannot be this, and if it
could, it ought not to exercise a continued and direct interference
with the conduct of men. There are many acts useful to the community
which the legislator ought never to command; so are there many hurtful
acts, which he ought not to forbid. There is certainly a broad
distinction between moral and legal rights. For instance, “a man has
no moral right to hate his wife, but he has a perfect legal right to
hate her. A man has no moral right to foreclose a mortgage on a sick
widow’s home, and turn her and her children out in the snow, but he
has a perfect legal right to do it. A man has no moral right to make a
glutton of himself, destroy his usefulness, and thus throw his wife and
children on the town, but he has a perfect legal right to do it.” A man
has no moral right to drink rum, but he has a perfect legal right to do
so. What actions, then, may be legally punished as offenses? “What a
question,” I hear some one exclaim; “are not all men agreed upon it? Do
you ask us to prove an acknowledged truth.” I answer in words of the
great Jeremy Bentham: “Be it so. But on what is founded that agreement?
Demand of each his reasons. You will find a strange diversity of
interest and principles. You will find it not only among the people,
but among philosophers.... The agreement which you see is founded only
on prejudices; and these prejudices vary, according to the times and
places, according to opinions and customs.... People have always said
that such an action is an offense. Such is the guide of the multitude,
and even of the legislator. But if usage has made innocent actions
crimes; if it makes venial offenses appear heavy, and heavy offences
light; if it has varied everywhere, it is clear that we must subject it
to some rule.”
Vices are not rightly punishable by law. They are amenable to education
only. Should A. assist B. to indulge in a vice, and A. uses no fraud
or coercion, and B. is _compos mentis_, A. is not guilty of a crime,
in the proper sense. Suppose A. were a cook, who compounds for B.
rich and delicious dishes, and of which B. partakes to such an extent
that he sickens and dies, A. is not guilty of a crime. Neither is B.’s
indulgence in the strong food or strong drink a crime punishable by
law, only a vice amenable to discretion and judgment.
Correctly considered, then, a crime is an act which one man, with
“malice prepense,” commits upon the person or property of another,
without that other’s consent. Crime may be subject to law. A vice, on
the other hand, is any act or passion in which a person may indulge
himself: malice, hypocrisy, pride, envy, hatred, avarice, ambition,
profanity, falsehood, indolence, cowardice, drunkenness, gluttony,
tyranny, fanaticism, extravagance, etc., etc. Unless this distinction
be recognized by the law, there can be no such thing as individual
right, liberty or property, “no such thing as the right of one man to
the control of his own person and property, and the corresponding and
co-equal right of another man to the control of his own person and
property.”
An eminent and respected physician once said to an enlightened
audience: “Not a person before me, but has suffered from vices; indeed,
that is what we mean by the imperfection of human nature. When we
depart from perfection it is a vice. Everybody is guilty of vices.
The people before me, forty years old, should not be so old at fifty
or sixty. Their teeth are decayed, and they have imperfect digestion.
They do not enjoy the full and happy play of all their powers and
faculties, and the greater part of this waste comes from vices. There
are certain secret vices which cannot be publicly named, which are
doing more to break down our vital force, make us prematurely old, and
fetter our souls, than all the crimes committed in the country, and the
legislature can do nothing to cure them.
“Without doubt, gluttony is the most destructive of all our vices. It
obtains among all classes, all ages, and both sexes. Eminent medical
men, in England and America, declare that strong food can count ten
victims, where strong drink counts one.
“Tobacco is doing more injury to the minds and bodies of our nation
than all the murder, theft, burglary, and arson, and yet the
legislature can do nothing to cure the tobacco curse.”
Dr. Lewis wisely continues: “It is not often possible to say of those
acts that are called vices, that they are really vices except in
degree. That is, it is difficult to say of any actions, or courses of
action, that are called vices, that they really would have been vices,
if they had stopped short of a certain point. The question of vice
or virtue, therefore, in all such cases, is a question of quantity
and degree, and not of the intrinsic character of any single act, by
itself. This fact adds to the difficulty, not to say the impossibility,
of any one’s--except each individual for himself--drawing any accurate
line, or anything like an accurate line, between virtue and vice; that
is, of telling where virtue ends and vice begins. And this is another
reason why this whole question of virtue and vice should be left for
each person to settle for himself. Vices are usually pleasurable,
at least for the time being, and often do not disclose themselves
as vices, by their effects, until they have been practiced for many
years, or perhaps for a life-time. To many, perhaps most, of those who
practice them, they do not disclose themselves as vices, at all during
life. Virtues, on the other hand, often appear so harsh and rugged,
they require the sacrifice of so much present happiness, at least, and
the results which alone prove them to be virtues, are so often distant
and obscure, in fact so absolutely invisible to the minds of many,
especially of the young, that, from the very nature of things, there
can be no universal or even general knowledge that they are virtues.
In truth, the studies of profound philosophers have been expended--if
not wholly in vain, certainly with very small results--in efforts to
draw the lines between virtues and vices.
“If then, it be so difficult, so nearly impossible, in most cases,
to determine what is and what is not, vice; and especially if it be
so difficult in nearly all cases to determine where virtue ends and
where vice begins; and if these questions, which no one can really and
truly determine for anybody but himself, are not to be left open and
free for experiment by all, each person is deprived of the highest
of all his rights as a human being; to wit: his right to inquire,
investigate, reason, try experiments, judge and ascertain for himself,
what is, to him, virtue, and what is, to him, vice; in other words,
what, on the whole, conduces to his happiness, and what, on the whole,
tends to his unhappiness. If this great right is not to be left free
and open to all, then each man’s whole right as a reasoning human
being, to liberty and the pursuit of happiness is denied him.” “It
is now obvious, for the reasons already given, that government would
be utterly impracticable, if it were to take cognizance of vices and
punish them as crimes. Every human being has his, or her, vices. Nearly
all men have a great many. And they are of all kinds: physiological,
mental, emotional, religious, social, commercial, industrial,
economical, etc. If government is to take cognizance of any of these
vices, and punish them as crimes, then, to be consistent, it must take
cognizance of all and punish all impartially. The consequences would
be, that everybody would be in prison for his, or her, vices. There
would be no one left to lock the doors upon those within. In fact,
courts enough could not be found to try the offenders, nor prisons
enough built to hold them. All human industry in the acquisition of
knowledge, and even in acquiring the means of subsistence, would be
arrested; we should be all under constant trial or imprisonment for
our vices. But even if it were possible to imprison all the vicious,
our knowledge of human nature tells us that, as a general rule, they
would be far more vicious in prison than they ever have been out of it.
A government that shall punish all vices impartially, is so obviously
an impossibility, that nobody was ever found, or ever will be found,
foolish enough to propose it. The most that any one proposes is, that
government shall punish some one, or, at most a few, of what he esteems
the grossest of them.”
“But this discrimination is an utterly absurd, illogical and tyrannical
one. What right has any body of men to say, ‘The vices of other men we
will punish, but our own vices nobody shall punish? We will restrain
other men from seeking their own happiness, according to their own
notions of it; but nobody shall restrain us from seeking our own
happiness, according to our notion of it. We will restrain other men
from acquiring any experimental knowledge of what is conducive or
necessary to their own happiness; but nobody shall restrain us from
acquiring an experimental knowledge of what is conducive or necessary
to our own happiness.’ Nobody but knaves and blockheads ever think of
any such absurd assumptions as these. And yet, evidently, it is only
upon such assumptions that anybody can claim the right to punish the
vices of others, and at the same time claim exemption from punishment
for his own. The greatest of all crimes are the wars that are carried
on by governments to plunder, destroy and enslave mankind.”
It has been asserted that gambling is a vice. I deny that such is the
case. The proposition cannot be established, as an absolute principle.
If a man chooses to risk his money, on a game of cards, he has a
perfect right to do so, in the abstract, and no man, or any body of
men, has a right to forbid him. “It is his money, and he has a right to
do what he chooses with it. He has a legal right to put it in a gun and
shoot it away, or burn it up, or risk it on a game of chance, or make
any other disposition of it, and no man, or body of men, has a right to
interfere.” For my purpose, as a question of law, the real question is
whether a man may dispose of his own as he chooses? If so, then he has
a right to wager it on a game of cards, or at dice; and it is absurd to
treat as criminal another man who may join in with him in gaming, as an
antagonist. In other words, “If John has at any time or in any place,
the right to wager his money on a game of chance, then it is absurd to
treat as criminal the helping John to do what he has a right to do. If
one participant in a transaction is guilty of crime, so is the other.
But if one participant is guiltless, then the other is guiltless.”
The keepers of gambling resorts are denounced, as though they were
responsible for the gambling propensity in mankind. Now, resorts for
gambling do not cause the passion. It is a tendency to which all men
are prone, more or less. “The essential fact is the existence of this
passion. There can never be any great difficulty in obtaining the means
for its gratification.” If not one way, then in another. If at all,
attack the principle, in whatever guise or by whomsoever practiced.
If some methods are denounced, then should all methods be denounced.
If those who furnish certain “means to the end” are to be punished as
criminals, then should all persons who furnish any “means to the end.”
But to punish any such person is erroneous and very short sighted;
for the primary cause of the trouble, if such it be, is the desire
for gaming. It is impossible to prevent its gratification. As wisely
attempt “to make one’s hair white or black” by virtue of “the statute
in such cases made and provided.”
Suppose the law efficacious, with what consistency does our
jurisprudence make gambling a crime? In general, at common law, all
games are lawful, unless fraud has been practiced. Each of the parties
must have a right to the money or thing played for. He must give his
free and full consent, and the play must be conducted fairly. The
mutual promises of the parties to the wager are held a sufficient
consideration. A large number of such actions have been sustained by
the courts of England and the United States.
For example, it was held that a wager of fifty guineas by one of the
litigants that an appeal from a decree of Chancery would be reversed by
the House of Lords, was not, of itself, void, there being no charge of
fraud. So, wagers as to the time when a railroad would be completed;
or, as to the name of a person whom one of the parties had seen; or,
as to the age of one of the parties; or, upon the price of an article
of commerce; or, as to who would die first, of two persons not privy
to the wager; or, as to whether A. would hit a target; or, upon foot
or horse races; were held valid. Indeed, the tendency of the courts
to discourage wagers of every nature is relatively of recent date. In
many of the United States, the doctrine has been abrogated by statute.
Texas, Delaware, California, and some other states still adhere to the
English rule.
Some of the judgments in England were rendered by the greatest of
judicial minds: Lord Mansfield, Lord Holt, Lord Hardwicke and Lord
Kenyon. In the language of Lord Holt: “When considered in itself,
there is nothing in a wager, contrary to natural equity, and the
contract will be considered as a reciprocal gift, which the parties
make of the thing played for, under certain conditions.” Lord Mansfield
laid it down, that wagers are actionable: “and that the restraints
imposed on certain species, by acts of parliament, are exceptions to
the general rule, and prove it.” And Lord Kenyon declared in Good vs.
Elliott: “Being bound by former decisions, not having the power to
alter the law, not finding any one case against the legality of wagers
in general, and finding cases without number, wherein wagers have
been held to be good, and that the payment of them may be enforced, I
adjudge the wager in the present case good at common law.” It was a
wager that A. had purchased a certain wagon of B.
The source of our jurisprudence is the common law of England. Gambling
was not a crime under this system, and here it would enforce the
contract of wager. I therefore denounce as incongruous and irrational a
statute which seeks to punish the wagerer as a criminal.
Crime, at common law is something essential, so, in its very nature;
grounded in the Mosaic decalogue and the reason of things: murder,
mayhem, adultery, robbery, theft, arson. The wager is akin to none of
these, nor does it come within their spirit. The common law branded as
a criminal him only whom God had thus branded. The wagerer was not of
the number.
In a word, is gambling _malum in se_? In answer, the common conviction
of men has never so regarded it. The common law has ever recognized
a boundary line which separates the _mala in se_ from the _mala
prohibita_. In law, a thing is _malum in se_ when absolutely evil in
itself; “not, indeed, in a philosophical sense,” says the eminent
lawyer, James C. Carter, “but absolutely, according to the universal
conviction, in the political society which so views it; and _mala
prohibita_ are those things, otherwise innocent or indifferent, which
the legislative power, having control over the subject, may declare
to be offenses.” Although not _malum in se_, gambling may be _malum
prohibitum_. If the latter, then it becomes merely a question of public
policy whether or not the state shall license gambling, subject to such
conditions as the police power might impose. At any rate, to the extent
that government is a moral entity, it cannot rightfully punish gambling
as being bad in itself.
“The King is Dead--Long
Live the King.”
[Illustration]