“The King is Dead--Long Live the King.”
Expressive was the coronation ceremony in the ancient Dukedom of
Carinthia. The ducal candidate, in a peasant’s garb, and with head
proudly erect, walked towards the marble throne of his ancestors. But
upon it was already seated a peasant, attended by the black bull and
the lean horse--those sad and severe symbols of his class. Then was
commenced between them this rude dialogue:
Peasant:--“Who so proudly dares enter here? Is he a just judge? Has he
the good of the country at heart?”
Duke:--“He is and he will.”
Peasant:--“I demand by what right he will force me to quit this place?”
Duke:--“He will buy it of you for sixty pennies, and the horse and the
bull shall be yours.”
Nowhere, in the past, was the sovereignty of the people more haughtily
declared, than in this formality of the old Carinthians. “It bears the
seal of remote antiquity--of an Homeric or Biblical simplicity.” That
the people were the only true source of power, was admitted even in
the archaic periods of history. Of olden time, there were many forms
of popular government. Aristotle made a study of their institutions.
Greece had her democracies and Italy a great republic. In Asia, then,
as now, the assertion of political power was the sole foundation for
its maintenance.
With the development of Christianity, in Europe, was inculcated the
theoretic idea. Kings were anointed and they ruled by “divine right.”
In the language of Mr. Tiedeman: “The king, who in theory obtained his
authority from God, acknowledged no natural rights in the individual.
Individual activity, for its room, depended upon the monarch’s will.”
In time, however, came the Reformation and political revolutions in
England, France, the Netherlands, Spain and Italy. To-day, the “divine
right” of kings is generally repudiated. It has been displaced by the
ancient principle that all power is derived from the people. “The
people were once subjects of the king. The government is now subject
to the people.” “The king is dead,” but his functions yet live in “the
state,” or the people.
While many ancient statesmen and publicists recognized the proper
origin of power in government, their opinions as to its nature and
extent were neither clear nor sound. Wherever lodged, in their
judgment, power was limitless and irresponsible. Whether exercised by
king or emperor, by an aristocracy or the people, it was absolute.
Politically, in other words, the individual was annihilated by the
state. Government did not permit the existence of any personal right
that it “was bound to respect.” This is also true of later times, in
continental Europe. True, the “divine right” of kings was repudiated,
but not the doctrine of absolutism. “_Vox Populi, Vox Dei_,” became
the general answer to all complaints of the individual against the
encroachments of popular government upon his rights and liberty. In the
name of the people, atrocious crimes were perpetrated by revolutionary
governments.
In its proper sense, individual liberty is a development of the
Anglo-Saxon institutions. This doctrine is fundamental to the English
Constitution. The principle is cardinal and vital in the American
system of government. Individual rights are protected by constitutional
restrictions upon power, federal and state. In the United States, every
individual is a king. This accords with the so-called _laissez-faire_
doctrine, of modern development in England and the United States,
which confines the sphere of government within the narrowest limits,
and denies to it the power to do more than provide for public order
and personal security, by the prevention and punishment of crimes and
trespasses. Under the influence of this wholesome principle, with us
and in Great Britain, for one hundred years, the encroachments of
government upon the rights and liberties of the individual have been
comparatively few.
In other words, it has been generally admitted by the wisest and
broadest statesmanship, that private rights and personal liberty do
not exist by the permission of municipal law. They are natural and
founded upon the law of reason; that, therefore, governmental restraint
should “only go to the limit necessary to a uniform and reasonable
conservation of private rights.” Municipal law protects and develops,
rather than creates private rights and personal liberty.
In the United States this “limit” has been generally fixed at the
power to enforce the common and civil law maxim, “_sic utere tuo, ut
alieum non lædas_.” The “police power,” it is called, and extends, in
its broadest sense, to the preservation of peace and good order to the
protection of property rights, “and of the lives, limbs, health and
comfort of all persons.” Any law which goes beyond this, in the United
States, at least, and undertakes to abolish rights, the exercise of
which do not infringe upon the rights of others; or limits the exercise
of rights beyond what is necessary for the public welfare and general
security, is not properly within the police power.
The police power, then, is properly concerned only with crimes and
trespasses. It cannot rightfully invade the realm of ethics, as such.
Crime is theoretically a direct injury to the public, and trespass,
a direct injury to the individual. A vice, on the contrary, is the
inordinate gratification of one’s desires and passions. The primary
damage is to one’s self. In contemplating the nature of a vice, we
are not conscious of a trespass on the rights of others. Vice does
not fall within the police power. Expressed in the language of Mr.
Tiedeman, “the object of police power, is the prevention of crime--the
protection of rights against the assaults of others. The police power
of the government cannot properly be brought into operation for the
purpose of exacting obedience to the rules of morality, and banishing
vice and sin from the world. The moral laws can exact obedience only in
_foro conscientiæ_. The municipal law has only to do with trespasses.
It cannot be called into play in order to save one from the evil
consequences of his own vices, for the violation of a right, by the
action of another, must exist or be threatened, in order to justify the
interference of law.”
The people of this country are generally convinced of this truth. So
widespread is the conviction that, where a law “does not have for its
object the prevention or punishment of a trespass upon rights, it is
impossible to obtain for it an enthusiastic and unanimous support.”
Besides, it is true of every community, when “public opinion is aroused
to an activity that will enforce a law for the prevention of vice, the
moral force alone will be ample to suppress it.” But it is sometimes
urged that an otherwise ineffectual statute may serve to direct public
opinion in the right direction. To this I reply that one unerring truth
is taught by the history of legislation: “It is the utter futility, in
a corrective sense, of a law whose enactment is not the unavoidable
resultant of the forces then in play in organized society. Nothing so
weakens the reverence for law, and diminishes its effectiveness, as
still-born statutes.”
Certain matters are generally recognized to be within the police power
of the state. For instance, the control of infectious and contagious
diseases, of the insane, of habitual drunkards, spendthrifts, vagrants
and mendicants. And finally, by forced construction, it has been
extended to the liquor traffic. The law, it is said, may prohibit the
sale of liquor to minors, lunatics, persons intoxicated, confirmed
inebriates, and other persons with certain weaknesses of character.
Courts maintain that while the liquor traffic is subject to the police
power, yet it may not be entirely forbidden as necessarily injurious
to the public in a legal sense. To quote the Supreme Court of Indiana,
in Beabe vs. State: “Where injury does result (from the use of
beverages) it is usually caused by the shortcomings of the purchaser,
without any participation in the wrong of the seller. No business can
be prohibited altogether, unless its prosecution is necessarily and
essentially injurious. It is the abuse and not the use of beverages
that is hurtful. The use of beverages is not necessarily destructive
to the community.... Fire-arms and gunpowder are not manufactured to
shoot innocent persons, but are often so misapplied. Axes and hatchets
are not made and sold to break heads with, but are often used for that
purpose. Yet who has ever contended the manufacture and sale of these
articles should be prohibited as a nuisance. We repeat, the manufacture
and sale of liquors are not necessarily hurtful, and therefore may not
be entirely prohibited.”
So much for the “police power,” generally considered. But what of its
relation to gambling, if any? If the practice is neither a crime nor
a trespass, then it is not rightfully subject to public regulation.
I have demonstrated to the candid judgment that, of itself, gambling
is not essentially wrong. I insist that, at least, in the absence of
fraud and chicane, it is neither sinful, nor criminal. To gamble with
another is not to assault his person or property by main force. To
wager or bet upon the laws of chance, deceit aside, is not to kill,
maim, rob, or cheat your fellow man; the players freely participate in
the hope of gain or for amusement. Then wherein is the action either
felonious or tortious? Why should the police power interfere? That
it cannot properly do so, under our institutions, is conceded by Mr.
Tiedeman. He is an able and accomplished lawyer, and recognized by the
profession as an authority on the subject. But it may be said, the
effects are injurious, and for that reason the state may forbid the
practice. That gambling is “necessarily and essentially” injurious
to society, I deny. As a pastime, it is innocent, as a principle of
action it permeates the business world. If an amusement, it may be
abused to the detriment of certain individuals, but the abuse of a
thing, innocent in itself, does not make that thing a crime. When an
occupation, it is but natural that the laws of chance should operate
unevenly: to the advantage of some and to the disadvantage of others.
Uniformity of success in affairs is impossible.
Throughout the business world, in every department of human activity,
the losers but bear a fixed proportion to the winners. Some must fail
that others may succeed. Such is the law of existence, as society is
constituted to-day. We are not now concerned with ideals. The realities
suffice for my purpose. Chance is at present the great motive power
of the world. It sustains hope, and stimulates endeavor. Through its
operation men are enriched and nations aggrandized. That some meet with
disaster and encounter misfortune does not prove that appeals to chance
are criminal in their nature, nor that such appeals are “necessarily
and essentially” injurious to the state. Consistently, therefore,
gambling cannot be forbidden because in its pursuit some persons are
fool-hardy and others unfortunate.
I may be asked, “What do you suggest?” I would license gambling, and
place it under such restrictions as would tend to lessen its abuse. I
am willing, for practical purposes, to concede this much to the police
power. If this policy may be claimed for the liquor traffic, why not
for gambling also? Is gambling more injurious than intemperance? No,
the victims of alcohol outnumber the unfortunate gamblers a thousand
to one. The habitual use of intoxicants is necessarily and uniformly
injurious to the individual. This is not true of gambling, as a
pastime. The player may win. Some of the players must win. Whatever
can be said against the prohibition of the liquor traffic, applies
with greater force to gambling. If there are reasons why the sale of
intoxicants may be licensed, by the state and municipal authorities,
such reasons serve but to demand a like privilege for gambling.
Briefly, the rule laid down by the Indiana Supreme Court as to the
liquor traffic, in Beabe vs. State, is clearly applicable to games
of chance as a business. This is obvious from the whole tenor of my
discussion. If the state is not willing to take this step, then leave
the matter to “local option.” Leave it to the municipal authorities,
whether gambling is to be permitted or not, in a given locality. Let it
be a question of policy and toleration, if you will. Regulations may
be imposed, as with the saloon. Recognize the existence of gambling
as a fixed fact, but interpose a surveillance for the prevention of
fraud. As with the saloon, also, provide for the protection of those
weaklings who are ever wards of the law: “minors, drunkards, lunatics
and spendthrifts.” This policy now obtains generally on the continent
of Europe, and to a certain extent in several of the United States:
notably, Arkansas, Texas and California.
“What! would you have gambling public?” Yes, rather than private;
and that is the alternative presented to the wise. The experience
of California, in this matter, is that of every state in the Union,
and all may profit by her example. In the words of Judge Murray of
that state: “The Legislature, finding a thirst for play universally
prevalent throughout the state, and despairing of suppressing it
entirely, attempted to control it in certain bounds, by imposing
restrictions and burdens on this kind of business. The license operated
as a permission, and removed, or did away with the misdemeanor as it
existed.” The issue for practical men is: Shall gambling be in sight
and subject to control, or shall it be out of sight and beyond control.
The “situs” of public gambling is known to the authorities, and thus
may its conduct be supervised and regulated: its every operation may be
hourly inspected by the police, to the exclusion of those whom the law
may with propriety protect from their own acts, and the prevention of
cheating by dishonorable methods and devices. If gambling is public,
in brief, its abuses can be reduced to a minimum. When repressed
at known points, gambling is not thereby discontinued. It is thus
distributed over a wider field, there, secretly to thrive in its worst
features. Then it is that fraud and theft are triumphant: that “brace”
gamblers “wax fat” and their conscienceless harpies pray in secret upon
the unwary and the inexperienced. Public gambling is generally fair and
honest. Secret gambling is too often but another name for a robbery
that cannot be prevented by either police or magistrates. Again, the
number of employees are few, comparatively, in the public gambling
club, and it is without other allurements than naked chance may offer.
Not so the private institution, the patrons of which may freely partake
of most seductive viands and expensive liquors; rents are also higher,
and more employees are required. The private club is costly in the
extreme: an extravagant scale is necessary to its very existence.
This is a severe test to the scruples of a proprietor. In some way he
must meet expenses and insure a livelihood. For an honest gambler the
maintenance of a private club is seldom possible.
“But public gambling would be a temptation to the poor man. You admit
that poor men should not gamble?” I answer, who is the “poor” man?
When you have found him, who is his keeper? Are you the custodian of
his judgment and inclinations? I am of opinion he would repudiate your
guardianship with indignation. “Consistency thou art,” indeed, “a
jewel.” The rich and well-to-do may gamble, perhaps, but not the man
of small resources. I ask, who has the right, for that reason, to say
the latter nay? Not you, rich gambler in stocks and farm products; nor
you, sir, who nightly gamble in the parlor of a comfortable home, or
at the private club you assist in maintaining for that purpose. By what
authority were you constituted the keeper of a less fortunate neighbor?
All this aside, however, the suppression of public gambling will not
deter any man from the pursuit, whether “rich” or “poor.” A thousand
avenues are opened to him, despite the law and the authorities. In this
matter, society must trust to the education of individual character and
the gradual amelioration of mankind. Besides, if gambling were subject
to regulation, as other pursuits, our laws could the better protect
whomsoever it might desire.
Transcriber’s Notes
Punctuation, hyphenation, and spelling were made consistent when a
predominant preference was found in the original book; otherwise they
were not changed.
Simple typographical errors were corrected.
Unbalanced quotation marks were remedied when the change was obvious or
the quotation was found in other sources. The others remain unbalanced.
The illustration on the Title page is a decorative floral; the other
illustrations are decorative headpieces.
Page 109: “the band of fate” was printed that way.
Page 187: Opening quotation mark has no matching closing mark.