“The King is Dead—Long Live the King.”
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.