THE LAW ENFORCERS AND THE LAW
DAY after day, month after month, a distressing, a disgusting
spectacle is presented to the American people in connection with the
enforcement of the national Prohibition law. No day passes without
newspaper headlines which "feature" some phase of the contest going on
between the Government on the one hand and millions of citizens on the
other; citizens who belong not to the criminal or semi-criminal
classes, nor yet to the ranks of those who are indifferent or disloyal
to the principles of our institutions, but who are typical Americans,
decent, industrious, patriotic, law-abiding. It is true that the
individuals whom the Government hunts down by its spies, its arrests,
its prosecutions, are men who make a business of breaking the
Prohibition law, and most of whom would probably just as readily break
other laws if money was to be made by it. But none the less the real
struggle is not with the thousands who furnish liquor but with the
hundreds of thousands, or millions, to whom they purvey it. Every time
we read of a spectacular raid or a sensational capture, we are really
reading of a war that is being waged by a vast multitude of good
normal American citizens against the enforcement of a law which they
regard as a gross invasion of their rights and a violation of the
first principles of American government. The state of things thus
arising was admirably and compactly characterized by Justice Clarke,
of the United States Supreme Court, in a single sentence of his recent
address before the Alumni of the New York University Law School, as
follows:
The Eighteenth Amendment required millions of men and women to
abruptly give up habits and customs of life which they thought not
immoral or wrong, but which, on the contrary, they believed to be
necessary to their reasonable comfort and happiness, and thereby,
as we all now see, respect not only for that law, but for all law,
has been put to an unprecedented and demoralizing strain in our
country, the end of which it is difficult to see.
Upon all this, however, as concerned with the conduct of the people at
large, perhaps enough has been said in previous chapters. What I wish
to dwell upon at this point is the conduct of those who, either in the
Government itself, or in the power behind the Government--the
Anti-Saloon League--are carrying on the enforcement of the Prohibition
law. They are not carrying it on in the way in which the enforcement
of other laws is carried on. In the case of a normal criminal law--and
it must always be remembered that the Volstead act is a criminal law,
just like the laws against burglary, or forgery, or arson--those who
are responsible for its enforcement regard themselves as
administrators of the law, neither more nor less. But the enforcement
of the Prohibition law is something quite different: it is not a work
of administration but of strategy; not a question of seeing that the
law is obeyed by everybody, but of carrying on a campaign against the
defiers of the law just as one would carry on a campaign against a
foreign enemy. The generals in charge of the campaign decide whether
they shall or shall not attack a particular body of the enemy; and
their decision is controlled by the same kind of calculation as that
made by the generals in a war of arms--a calculation of the chances of
victory. Where the enemy is too numerous, or too strongly entrenched,
or too widely scattered, they leave him alone; where they can drive
him into a corner and capture him, they attack. To realize how
thoroughly this policy is recognized as a simple fact, one can hardly
do better than quote these perfectly naive and sincere remarks in an
editorial entitled "Government Bootlegging," in the New York Tribune,
a paper that has never been unfriendly to the Eighteenth Amendment:
That American ships had wine lists was no news to the astute Wayne B.
Wheeler, generalissimo of the Prohibition forces. He was fully
informed before Mr. Gallivan spoke, and by silence gave consent to
them. He was complaisant, it may be assumed, because he did not wish
to furnish another argument to those who would repeal or modify the
Volstead act. He has made no fuss over home brew and has allowed
ruralists to make cider of high alcoholic voltage. He saw it would be
difficult, if not impossible, to stop home manufacture and did not
wish to swell the number of anti-Volsteaders. He was looking to
securing results rather than to being gloriously but futilely
consistent. Similarly the practical Mr. Wheeler foresaw that if
American ships were bone-dry the bibulous would book on foreign ships
and the total consumption of beverages would not be materially
diminished. For a barren victory he did not care to have Volsteadism
carry the blame of driving American passenger ships from the sea.
Prohibitionists who have not put their brains in storage may judge
whether or not his tactics are good and contribute to the end he
seeks.
Now from the standpoint of pure calculation directed to the attainment
of a strategic end, in a warfare between the power of a Government and
the forces of a very large proportion of the population over which it
holds sway, the Tribune may be entirely right. But what is left of the
idea of respect for law? With what effectiveness can either President
Angell or President Harding appeal to that sentiment when it is openly
admitted that the Government not only deliberately overlooks
violations of the law by millions of private individuals, but actually
directs that the law shall be violated on its own ships, for fear that
the commercial loss entailed by doing otherwise would further excite
popular resentment against the law? It has only to be added that since
the date of that editorial (June 18, 1922) the Anti-Saloon League has
come out strongly against the selling of liquor on Governmentowned
ships--a change which only emphasizes the point I am making. For, in
spite of the Tribune's shrewd observations, it soon became clear that
the Volstead act was being so terribly discredited by the preposterous
spectacle of the Government selling liquor on its own ships that
something had to be done about it; and it was only under the pressure
of this situation that a new line of strategy was adopted by the
Anti-Saloon League. What it will do if it finds that it cannot put
through its plan of excluding liquor from all ships, American and
foreign, remains to be seen. Now it may be replied to all this that a
certain amount of laxity is to be found in the execution of all laws;
that the resources at the disposal of government not being sufficient
to secure the hunting down and punishment of all offenders, our
executive and prosecuting officers and police and courts apply their
powers in such directions and in such ways as to accomplish the
nearest approach possible to a complete enforcement of the law. But
the reply is worthless. Because the enforcement of all laws is in some
degree imperfect, it does not follow that there is no disgrace and no
mischief in the spectacle of a law enforced with spectacular vigor,
and even violence, in a thousand cases where such enforcement cannot
be successfully resisted, and deliberately treated as a dead letter in
a hundred thousand cases where its enforcement would show how
widespread and intense is the people's disapproval of the law. There
are many instances in which a law has become a dead letter; where this
is generally recognized no appreciable harm is done, since universal
custom operates as a virtual repeal. But here is a case of a law
enforced with militant energy where it suits the officers of the
Government to enforce it, systematically ignored in millions of cases
by the same officers because it suits them to do that, and cynically
violated by the direct orders of the Government itself when this
course seems recommended by a cold-blooded calculation of policy ! If
the laws against larceny, or arson, or burglary, or murder, were
executed in this fashion, what standing would the law have in
anybody's mind? Yet in the case of these crimes, the law only makes
effective the moral code which substantially the whole of the
community respects as a fundamental part of its ethical creed; and
accordingly even if the law were administered in any such outrageous
fashion as is the case with Prohibition, it would still retain in
large measure its moral authority.
But in the case of the Prohibition law, an enormous minority, and very
possibly a majority, of the people regard the thing it forbids as
perfectly innocent and, within proper limits, eminently desirable; the
only moral sanction that it has in their minds is that of its being on
the statute books. What can that moral sanction possibly amount to
when the administration of the law itself furnishes the most notorious
of all examples of disrespect for its commands? There is another
aspect of the enforcement of the law which invites comment, but upon
which I shall say only a few words. I refer to the many invasions of
privacy, unwarranted searches, etc., that have taken place in the
execution of the law. I f this went on upon a much larger scale than
has actually been the case, it would justly be the occasion for
perhaps the most severe of all the indictments against the Volstead
act; for it would mean that Americans are being habituated to
indifference in regard to the violation of one of their most ancient
and most essential rights.
But in fact the danger of public resentment over such a course has
been the chief cause of the sagacious strategy which has characterized
the policy of the Government; or perhaps one should rather say, the
Anti-Saloon League, for it is the League, and not the Government, that
is the predominant partner in this matter. For the present, the League
has been "lying low" in the matter of search and seizure; but if it
should ever feel strong enough to undertake the suppression of home
brew, there is not the faintest question but that it will press
forward the most stringent conceivable measures of search and seizure.
Accordingly, there opens up before the eyes of the American people
this pleasing prospect: If the present struggle of the League (or the
Government) with bootleggers and moonshiners and smugglers is brought
to a successful conclusion, there will naturally be a greater resort
than ever to home manufacture; and equally naturally, it will then be
necessary for the League (or the Government) to undertake to stamp out
that practice. But obviously this cannot be done without inaugurating
a sweeping and determined policy of search and seizure in private
houses; a beautiful prospect for "the land of the free," for the
inheritors of the English tradition of individual liberty and of the
American spirit of '76--sight for gods and men to weep over or laugh
at!