THE LAW MAKERS AND THE LAW
WELL MEANING exhorters, shocked at the spectacle of millions of
perfectly decent and law-abiding Americans showing an utter disregard
of the Prohibition law, are prone to insist that to violate this law,
or to abet its violation, is just as immoral as to violate any other
criminal law. The thing is on the statute-books--nay, in the very
Constitution itself --and to offend against it, they say, is as much a
crime as to commit larceny, arson or murder. But they may repeat this
doctrine until Doomsday, and make little impression upon persons who
exercise their common sense. The law that makes larceny, arson or
murder a crime merely registers, and emphasizes, and makes effective
through the power of the Government, the dictates of the moral sense
of practically all mankind; and if, in the case of some kindred
crimes, it goes beyond those dictates for special reasons, the
extension is only such as is called for by the circumstances. However
desirable it may be that the sudden transformation of an innocent act
into a crime by mere governmental edict should carry with it the same
degree of respect as is paid to laws against crimes which all normal
men hold in abhorrence, it is idle to expect any such thing; and in a
case where the edict violates principles which almost all of us only a
short time ago held to be almost sacred, the expectation is worse than
merely idle. A nation which could instantly get itself into the frame
of mind necessary for such supine submission would be a nation fit for
servitude, not freedom. But in the case of the Prohibition Amendment,
and of the Volstead act for its enforcement, there enters another
element which must inevitably and most powerfully affect the feelings
of men toward the law. Everybody knows that the law is violated, in
spirit if not in letter, by a large proportion of the very men who
imposed it upon the country. Members of Congress and of the State
Legislatures--those that voted for Prohibition, as well as those that
voted against it--have their private stocks of liquor like other
people; nor is there any reason to believe that many of them are more
scrupulous than other people in augmenting their supply from outside
sources. One of the means resorted to by the Anti-Saloon League in
pushing through the Amendment was the particular care they took to
make its passage involve little sacrifice of personal indulgence on
the part of those who were wealthy enough, or clever enough, to
provide for the satisfaction of their own desires in the matter of
drink, at least for many years to come. The League knew perfectly that
in some Prohibition States the possession of liquor was forbidden as
well as its manufacture, transportation and sale; but the AntiSaloon
League would never have dared to include in the Amendment a ban upon
possession. Congressmen who voted for it knew that not only they
themselves, but their wealthy and influential constituents, would be
in a position to provide in very large measure for their own future
indulgences; and it may be set down as certain that had this not been
the case, opposition to the Amendment would have been vastly more
effective than it was. In order that a person should entertain a
genuine feeling that the Prohibition Amendment is entitled to the same
kind of respect as the general body of criminal law, it is
necessary--even if he waives all those questions of Constitutional
principle which have been dwelt upon in previous chapters--that he
should regard drinking as a crime. And this is indeed the express
belief of many upholders of the Amendment--a foolish belief, in my
judgment, but certainly a sincere one. I have before me a
letter--typical of many--published in one of our leading newspapers
and written evidently by a man of education as well as sincerity. He
speaks bitterly of the proposal to permit "light wines and beer," and
asks whether any one would propose to permit light burglary or light
arson. That man evidently regards indulgence in any intoxicating
liquor as a crime, and he looks upon the law as a prohibition of that
crime. And he is essentially right, if the law is right. For while the
law does not in its express terms make drinking a crime, its
intention--and its practical effect so far as regards the great mass
of the people--is precisely that. The people President Angell had in
mind when he implored the young Yale graduates not to be like them,
are not makers or sellers of liquor, but drinkers of it. They are not
moonshiners or smugglers or bootleggers; they are the people upon
whose patronage or connivance the moonshiners and smugglers and
bootleggers depend for their business. And everybody knows that, in
their private capacity, Senators and Representatives and
Legislaturemen are precisely like their fellow-citizens in this
matter. They may possibly be somewhat more careful about the letter of
the law; they are certainly just as regardless of its spirit. With the
exception of a comparatively small number of genuine
Prohibitionists--men who were for Prohibition before the Anti-Saloon
League started its campaign--they would laugh at the question whether
they regard drinking as a crime. And they act accordingly. What degree
of moral authority can the law be expected to have in these
circumstances? Upon the mind of a man intensely convinced that the law
is an outrage, how much impression can be produced by the mere fact
that it was passed by Congress and the Legislatures, when the real
attitude of the members of those bodies is such as it is seen to be in
their private conduct? How much of a moral sanction would be given to
a law against larceny if a large proportion of the men who enacted the
law were themselves receivers of stolen goods ? Or a law against
forgery if the legislators were in the frequent habit of passing
forged checks? It happens that the receiving of stolen goods or the
passing of forged checks is a crime under the law, as well as the
stealing or the forgery itself; and that the Prohibition law does not
make the drinking or even the buying of liquor, but only the making or
selling of it, a crime; but what a miserable refuge this is for a man
who professes to believe that the abolition of intoxicating liquor is
so supreme a public necessity as to demand the remaking of the
Constitution of the United States for the purpose! Not the least of
the causes of public disrespect for the Prohibition law is the
notorious insincerity of the makers of the law, and their flagrant
disrespect for their own creation.