CHAPTER V.

“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.

Gambling; or, Fortuna, her temple and shrine. The true philosophy and ethics of gambling · 第 5 / 5 章