On June 1, 1925, the Chief Justice of North Carolina in an address to the bar of Wake County, assembled in Raleigh, said:
"The best friend you have is the law of North Carolina. It protects you before you are born, it surrounds and shields you as long as you live, and it stands sentinel and guard at your tomb."
In this sonorous phrase we have the theory of the law.
On June 1, 1925, in Wake County, one mile from Raleigh, a sergeant of the plain clothes department of the city police, in the presence of the chief of police, without warning, shot and killed S. S. Holt, a prominent lawyer from an adjoining county, as he was returning home from arguing a case in the United States District Court. The only justification advanced for the officer was that Holt's car had stopped for a moment on the roadside and this made him jump to the conclusion that it was carrying liquor, a judgment, as the event proved, entirely unjustified by fact. In this coldblooded taking of human life, we have an important phase of the practice of the law. For thus nowadays in North Carolina is the citizen's "best friend" apt to operate. It may have protected S. S. Holt before he was born, it may even now "stand sentinel and guard at his tomb," but the vast majority of citizens desire nothing more than to escape from its "surrounding and shielding" quality as thus admirably exemplified. So far are the theory and practice of the law separated from each other.
In the old days Americans delighted to boast of "a government of laws and not of men." It was never a true statement, but it had a certain basis in the fact that the human conduct of government was regulated by law. Today the phrase is laughable. With prohibition enforcement to point the way we are rapidly approaching a time when we shall have a government of men—and of such men!—and not of law at all. Years ago a chief justice of North Carolina foresaw this and thus instructed the students of his private law school: "Anything you can get by with, that's the law," and today prohibition officers, like the Republican party, can "get by" with murder—and that's the law.
It is not that there is any lack of laws. Heaven help us, No! There are laws, so-called, ad nauseam, but a steadily lessening body of law. Legislative assemblies pour out a steadily rising tide of statutes, more than could possibly be assimilated by those they are supposed to control, and many of which could never be enforced. Many indeed of them are not intended to be enforced. The courts, forgetting constitutional limitations, uphold these as law. But it takes more than a statute to make law. President Coolidge, speaking to the American Bar Association, at San Francisco in 1922, said something which a generation ago would have been a mere empty platitude but which today positively scintillates in the dark waste of popular misconception of law. "In a republic, the law reflects rather than makes the standard of conduct. The attempt to dragoon the body when the need is to convert the soul, will end in revolt."
If the situation thus briefly sketched were one existent in North Carolina alone there would be no need of extended discussion. But it is no more true of North Carolina than it is of the great majority of the other states. Nor is it a situation growing out of the methods of the state police alone. Federal enforcement officers indeed set the pace and are among the worst offenders. State police are occasionally made answerable for lawlessness, federal officers almost never. This being so, the matter is one of national significance.
Of all the achievements of the Anglo-Saxon in the development of government the one which has excited the most reverent admiration in the world at large and which has been most loudly extolled by those of Anglo-Saxon stock, is the reconciliation of law and liberty through constitutional means; the notion, in other words, put into practical operation, that the citizen is possessed of certain rights, secure not only as against his fellow citizens, but against the government itself, or any of its officers. The great principles which lay at the bottom of the system were established only after long generations, after centuries indeed, of struggle and of bloodshed. They were, in brief: the right of personal security; personal liberty; and private property. These with their implications, it was believed, would adequately guard the individual.
Personal security meant not only the physical security of the person, but included also the security of one's home, one's private possessions, one's houses, papers, and effects, and of one's privacy against unreasonable disturbance, whether by the thief or by the officer of the law; unless, indeed, the latter were armed with a warrant based upon probable cause, supported by oath or affirmation of a responsible person, and particularly describing the place to be searched and the persons or things to be seized. The same principle guaranteed to the citizen the right to use the highways lawfully and peaceably, protected by the law and free of interference by officers of the law. The king's highway was the citizen's highway as well.
The principle of personal liberty meant in practice not only protection of the citizen against illegal or arbitrary confinement, but protection in the legal pursuit of his own concerns.
The third principle, the guarantee of private property, meant not only the right to own property, but the right to hold it unmolested by the government or by other individuals, to use and enjoy it in any lawful manner that one might see fit.
In the actual operation of government, a fourth principle was included which tended to make the others successful in practice. It was that every man accused of crime was presumed to be innocent until he was proved to be guilty by a trial carefully regulated by law.
When the framers of the American system of government set about their work they went a step further. Basing government upon the sovereignty of the people, they created an organic law which severely limited the power of the government over the individual and restrained the majority as well by making a change of this fundamental law difficult. Under the lead of Virginia, every state adopted a Bill of Rights guaranteeing to the individual the possession of those fundamental rights and liberties which after centuries of human association seemed essential. When the Constitution of the United States was adopted the chief criticism of it was the lack of a Bill of Rights and this was presently supplied in the first ten amendments.
Both states and nation thus recognized the fundamental and sacred character of the individual's liberties thus protected. For these bills of rights were attempts to mark out and define with clearness and precision a field or sphere of civil and political liberty into which government itself might not enter. Nothing is clearer in the whole range of American constitutional history than the intention of these early constitution makers not to establish a power which could deprive the citizen of the liberty which he possessed, as they believed, by natural right. Here was their attempt to make effective in law the glowing theory of the Declaration of Independence.
Such was the edifice of liberty erected by the fathers. Not perfect and not thought by its makers to be, it nevertheless was so successful in fulfilling its purpose that it finally came to be a quasi-religious belief of Americans that our constitutional system was the most perfect scheme ever devised by man for the reconciliation of law and liberty. Strained badly by the necessities of the Civil War, it nevertheless endured and functioned. Its guarantees, once war was over, were enforced by the courts, and while the Fourteenth and Fifteenth Amendments, resulting from the war, have been persistently unobserved, everyone recognized that both were blunders worse than crimes and that they had been added to the constitution in an illegal way. And so we came to 1917.
In the meantime, the bills of rights in a number of the states had been notoriously violated in order to enforce state prohibition laws, the provision against unreasonable searches and seizures suffering most severely. State courts under the pressure of prohibition sentiment strained constitutions to the limit to uphold such legislation as in accord with the constitutions, and the fatal step was taken which was to lead to the doctrine, common today, that no action in behalf of prohibition is unreasonable, and,—in its final form —that no act which is declared to be for the same purpose can be held as criminal.
Thus the popular mind was educated for what was to follow the adoption of the Eighteenth Amendment and the passage of the Volstead Act. And so we come to the situation as it exists today.
When Thomas Jefferson, probably the wisest man, at long range, who appears in American annals, said that "the natural progress of things is for liberty to yield and government to gain ground," he proved himself a prophet. Our governments, state arid national, when prohibition enforcement is in question, have under the spur of the Anti-Saloon League gained ground until the guarantees of liberty are in rapid process of extinction. Already they are in such cases little more than a tragic joke. For all the principles of liberty and the rules of justice are treated with contempt, flouted, and overthrown, if perchance they seem to stand in the way of the enforcement by lawless methods of the Eighteenth Amendment and the Volstead Act. The Fourth Amendment, for example, no longer secures the homes and effects of law-abiding citizens if a search for liquor is on and some fool or thug of an enforcement officer concludes that liquor may, or might, be found. Homes, not universally, of course, but in great number, are broken into by armed men not in uniform and ransacked with violence while their owners are cursed and insulted. If liquor is found, it is another triumph of prohibition enforcement and the Anti-Saloon League; if it is not found, the owner obtains no redress in the courts for the injury done him; indeed he may consider himself lucky to have escaped with any property left uninjured or even with his life.
Freedom of the highway no longer exists. Innocent pedestrians are held up at the pistol's mouth and searched by ununiformed men. If they object or attempt to escape they are shot at and often shot down. In the United States are nearly eighteen million automobiles and only a small fraction, probably, have ever carried liquor or ever will carry it. All the rest have a right to be on the highway and to remain there unmolested, but none are immune against the lawless attacks of those whose duty it is to uphold and enforce the law. Bandits infest the roads, but they are, for the most part, unmolested by the police who have no time to consider murder or highway robbery when any, no every, car which passes may have liquor in it. Besides bandits usually ride in automobiles, and they may not legally be stopped on the highway without a warrant—except to search them for liquor. But as between the road agent and the prohibition agent the citizen has little choice, though he will probably prefer the bandit as less likely to do him injury and certainly less likely to overwhelm him with insult. As a matter of fact he has small chance to distinguish between them. The thugs often pose as enforcement officers and the officers more often behave like thugs. Uniforms are not orthodox with the prohibition officers and when the command to stop is given—too often the officers give it by shooting—the driver never knows when he steps on the gas whether he is escaping from a highway robber or is flouting the majesty of the law. Presently he will know. If he drives on unmolested, he has escaped a hold-up. If he is shot, it is the police.
This is no exaggeration; on the contrary it is an inadequate and sketchy account of a condition common all over the country. The newspapers are full of such cases. Extracts from two editorials commenting on the Holt case, already mentioned, illustrate excellently the situation in Virginia and North Carolina. Said the Norfolk Virginian-Pilot:
"This is not an isolated instance. In Norfolk fourteen months ago a police officer stepped on the running board of a suspected automobile and shot the driver to death. In Danville a few weeks ago, a suspected bootlegger was cornered by prohibition officers and shot through the head. In Princess Anne County not long ago a negro suspected of operating a still was wantonly shot in the back and paralyzed for life—an injury for which a jury has just awarded him substantial damages. In all cases the officers pleaded self-defense. In none of the cases was the plea anything but a palpable makeshift. Dead men tell no tales and police officers never plead guilty to murder in the line of duty. The Princess Anne negro lived—and collected."
The Greensboro Daily News thus summarizes the condition:
"The news columns of the Daily News in recent months have reported case after case where ununiformed officers have hailed automobile travelers innocent in every respect and when their hails have not been regarded, have blazed away with pistols, ostensibly at tires, actually at anything in the general direction of the automobile. The editorial columns of the Daily News in recent months have contained comment in case after case of this kind. Men, women and children, who were not violating the law in any detail but were traveling peacefully and legally on the highways, have had their tires punctured by nail-studded boards thrown in their paths, have been held up at late hours of the night by men in citizen's clothes, have been shot at by reckless and irresponsible officers, have had their wheels exploded under them, have crouched in fear for the very bullets flying about their bodies, have had their cars wrecked, have suffered damage, been shocked, insulted, maltreated, bullied and outrageously treated, and all by ununiformed men who said afterwards that they were officers of the law. It has been a stinging shame and a humiliation, a desperate assault on a fundamental right of free peoples, an indefensible and outrageous assumption of authority."
Other Southern states present a like picture and the same is true in the North and the West. William Allen White says there is no problem of enforcement in Kansas. Well, Kansas has always been different. There used to be a song to the effect that eggs there had a different sort of parentage than elsewhere in the world, and that being the case, perhaps it is free from the lawless operations of officers of the law. But this cannot be said for the rest of the country. A little over a year ago a United States senator, walking with his wife on Pennsylvania Avenue in Washington, was shot down by policemen firing at bootleggers. "Too bad, of course, but prohibition must be enforced!" In Massachusetts, state police have stopped cars returning from college dances in order to smell the breath of the occupants! Recently a launch of the Harvard crew was fired on by the "dry navy" and fishing craft have regularly to run the blockade maintained by this same fleet. The press headlines contain such items as this, "Dry Armada to Shoot First—Then Investigate," and an officer of the "Dry Armada" issues an official statement "We are first to fire two preliminary warning shots across the bow of any vessel failing to give signals, and then shoot to kill." In short, human life, even innocent human life, is as nothing compared to the stoppage of rum running. A person accused of a felony may not legally be shot at by an officer save in self-defence, but anybody, innocent or guilty, may be shot by prohibition officers who run little risk of even a reprimand.
And meanwhile the rum runners blithely continue to land the stuff!
Protests, complaints, legal action, all avail nothing against what Walt Whitman called "the never failing audacity of elected persons." What sensible person can blame the officers? "Anything you can get by with, that's the law," is the doctrine of Congress, state legislatures, and state and federal courts. No wonder when a protest was entered not long ago by an irate citizen, thus held up, at the absence of a warrant, that the officer replied, "Warrant, hell! Why don't you read law?" No, when morality—otherwise the Eighteenth Amendment and the Volstead Act—is in question, the rest of the Constitution is but "a covenant with death and an agreement with hell," and no one need regard it. The suspicion of the presence of a pint of liquor is sufficient warrant not only for the destruction of the Constitution, but for wanton, cold-blooded murder.
Really, why should we expect prohibition agents to be law-abiding? They know as does everybody else that the law-makers patronize bootleggers, that many an "aye" to a prohibition enforcement bill is in its utterance redolent with moonshine liquor. They know that many a prosecuting attorney treats with contempt the very laws he seeks to enforce against others. They know that judges—not all, of course, but many of them—are directly or indirectly clients of bootleggers, and that too often they leave the bench after imposing sentence upon the unfortunates who have been caught, to drink in company with those who have escaped. Senator Bruce in his speech on March 2, 1925, told nothing that was new.
With these examples of lawlessness before them the sort of men who are employed as enforcement officers, as city police, as small town and county constables, could scarcely fail to be lawless. And there is another reason. When Congress appropriates money in large amount to enable them to buy evidence with bribes, why should we expect them to refuse bribes, or to observe fine distinctions of constitutional law? Nearly an eighth of those employed as federal enforcement agents have been dismissed for collusion, accepting bribes, intoxication, and the like. The wonder is not that so many deserve dismissal, but that any are dismissed.
Today the old American idea of judicial protection of private rights against governmental interference is rapidly disappearing. The Supreme Court of the United States, Chief Justice Taft writing the opinion, in March last upheld the right of officers to stop and search cars and other vehicles without warrant. Neither the Volstead Act nor any other law authorizes such action but the Court sanctions it. The officers have "gotten by with it, and that's the law." Is not judicial sanction of shooting the drivers and other occupants of the cars an easy step, and may we not expect it?
The determination of individual freedom and individual rights is thus left in the hands of police officers and prohibition agents. Dean Inge said not long ago in his usual pessimistic strain, "Ancient civilization fell by the invasion of foreign barbarians. We breed our own." He was not speaking of that modern American Scourge of God, the prohibition agent, but he might well have been. The description fits and it is possible that he could not improve upon it. But for a really adequate description, one at once so comprehensive and so graphically delineative that no one could fail to recognize it, we must resort to higher authority than Dean Inge, that is, to the divinely inspired author of Proverbs who, centuries ago, with prophetic vision wrote:
"These six things doth the Lord hate, Yea, seven are an abomination unto him.
"A proud look, a lying tongue, and hands that shed innocent blood.
"An heart that deviseth wicked imaginations, feet that be swift in running to mischief.
"A false witness that speaketh lies and he that soweth discord among brethren."
So far have we come. Statutes have nullified constitutional provisions, and when statutes have failed to do so the courts, even the Supreme Court of the United States, have supplied the lack that nothing may interfere with prohibition enforcement. Mr. Justice Day, speaking for the Court, once thus defined the operation of the Fourth Amendment:
"The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. . . . The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles, established by years of endeavor and suffering, which have resulted in their embodiment in the fundamental law of the land."
Chief Justice Taft writes the decision which substantially nullifies this rule of construction.
Is it not time for Americans to take to heart the doctrine contained in the powerful dissenting opinion of Mr, Justice McReynolds in the same case?
"The damnable character of the 'bootlegger's' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarrantable methods. 'To press forward to a great principle by breaking through every other great principle in the way of its establishment . . ., in short to procure an eminent good by means that are unlawful, is as little consonant with private morality as with public justice.'"
Or to consider the words of Lincoln: "Are all the laws but one to go unexecuted and the government itself to go to pieces, lest that one hp violated ?"
It is worth consideration. For in exchange for the loss of constitutional guarantees, what do we gain? Prohibition enforcement since the passage of the Volstead Act is estimated to have cost directly a quarter of a billion dollars, while its indirect costs have amounted to many times as much again. And the cost still mounts. A flood of poisonous liquor pours into the country and illicit distillers, rum runners, bootleggers, and corrupt enforcement officers grow rich. But where does the average citizen benefit? The court dockets, state and federal, are so congested with liquor cases that there is scarcely room for anything else. Official lawlessness is beginning to spread widely and there is no reason to expect either legislative or judicial checks upon it. And with such a beginning where will the end be?
This is not, be it clearly understood, an argument against prohibition. I saw state prohibition work admirably as an uplifting economic and social force, playing a tremendous part in the remaking of an old, depressed, and stagnant commonwealth. Parenthetically, I have seen, also, the destruction of the effectiveness of state prohibition by national prohibition. Neither is it an argument against the Eighteenth Amendment, however open to attack it may be. Nor is it an argument against the asiniine Volstead Act. I recognize them both as law until in the providence of God they are repealed.
It is an inquiry into the relation of the methods of prohibition enforcement to the principles of constitutional liberty which our forefathers developed through centuries of infinite hardship and effort and secured permanently, so they thought, in our constitutional system. I still believe in them, as do some millions of other Americans, and in common with them I wonder if there is no end to this sickening business. With them I wonder, too, if prohibition is worth while if it cannot be enforced without a blockading fleet off our coast, an army of officials on land, and a saturnalia of lawlessness and violence in which our legislators, judges, executive officials, police officers, and private citizens are all implicated.
In common with them, too, I seek a remedy; and I wonder, were a living John Adanis faced with this situation today, if he would find it in a reversion to the revolutionary doctrine so forcibly enunciated by him long ago?
"When kings, ministers, governors, or legislators, therefore, instead of exercising the powers intrusted with them according to the principles, forms, and proportions stated by the constitution, and established by the original compact, prostitute those powers to the purposes of oppression; to subvert, instead of supporting & free constitution; to destroy, instead of preserving the lives, liberties, and properties of the people, they are no linger to be deemed magistrates vested with a sacred character, but become public enemies and ought to be resisted?"