Liberty and Sovereignty

JULY, 1926


The great question is to discover, not what governments prescribe, but what they ought to prescribe; for no prescription is valid against the conscience of mankind.



SERIOUS consideration of the legal or the moral duty of a citizen to obey or disobey an act of Congress is possible only after some semblance of order has been restored in the arena where the partisans are contending. Any real national issue is bound to engender propaganda, misinformation, and an extraordinary amount of heat, and the Prohibition question is the first one which has become really national since the Civil War. For this reason, if for no other, it is worth discussing, for all the bored attitude affected by the ladies at dinner parties, or the dignified pronunciamentos of the Protestant clergy that the matter is now closed and furl her argument smacks of sedition or indicates collusion with the liquor interests.

It makes no difference whether drinking is sinful, or whether workingmen are ‘better off’ (whatever that means), or whether savings of money have increased, or whether drunkenness has diminished. It makes no difference whether all the bootleggers are supporting Prohibition, or whether it was attained by corrupt use of Mr. Rockefeller’s money, or whether it is unconstitutional. As Attorney-General Sargent remarked lately in New York: ‘We face a condition and not a theory.’ The amendment is written into the Constitution, the Enforcement Act is on the statute books; over very large areas and among vast and important masses of the population the enforcement of the law has become a farce, and there is no indication that the Federal Government has either the means or the will to make enforcement effective.

The United States Attorney for the Southern District of New York, after a year in office, estimates that he could enforce the law in that state if given an appropriation of $15,000,000 with which to pay 5000 agents at $3000 each, and if also given 250 Federal policecourt judges with power to try cases without a jury —which would, of course, involve another amendment to the Constitution. For this plain speaking he was bitterly denounced by the drys, who omitted, however, to disprove his facts or explain in what respect his conclusions were incorrect — mere statement of the difficulties involved being, to their way of thinking, a kind of treason.

Even if the United States Attorney were given what he demands, however, it is doubtful whether the law would be enforced in a community like New York. In the recent newspaper poll the votes against Prohibition in the city ran more than fifty to one, and were cast with an enthusiasm and intensity of moral fervor which make it appear probable that real enforcement in New York would result in a majority of the population being imprisoned. Such a situation would inevitably contain the elements of its own destruction, and is not worth contemplating seriously. If it is possible for a people to keep only ten per cent of the population in the field in time of war, there is no reason to suppose a much larger proportion can be kept in jail in time of peace.

Now the Attorney-General asks: ‘What are you going to do about it?’


First, let us consider the legal basis of authority in the State and of the duty of obedience.

Law is a system of philosophy, and like all philosophy it trails human experience in an attempt to formulate and explain what it finds. Governments reflect the possibilities of social control and are a result of the practical needs of society rather than a cause of phenomena. The government under the Constitution was declared in effect on the first Wednesday of March, 1789, and in those days sovereignty was supposed to flow from a social contract originally entered into by men when they were in a ‘state of nature.’

Under the social-contract theory, men as individuals possessed in the state of nature certain inherent and inalienable ‘rights.’ On whom rested the duties correlative to these rights is not clear, but, once the compact was entered into, then the duty was laid upon society not to impinge on these fundamental rights; for, being inalienable, they ware never surrendered by the contracting parties. If, then, the State did infringe upon these reserved and inherent rights of man, it broke the covenant, and released the constituents from further duty to obey.

To-day schoolboys, reflecting the dominant ideas of the moment, are accustomed to speak scornfully of the social-contract theory of government, and Locke and Rousseau have come in for considerable ridicule; but no one can read the debates in the Constitutional Convention, Madison’s papers, the Kentucky Resolutions, the Virginia Resolutions, and the early opinions of the Supreme Court without realizing that the social-compact method of thought was literally the only one accepted or adopted in explaining the nature of the new government at that time or in justifying the Revolution, although in the details of application there were various differences — some holding it was a compact between the states, others between the people, others between the states and the Federal Government.

The theory of the nature of the State accepted by modern philosophic publicists and writers on political science is that it is organic — that is, an entity. Sovereignty may be incarnate in a prince, or it may be found in an oligarchy, or in the demos. Hegel and Austin developed this theory in the nineteenth century, and the latter, on examining the political organization of the United States, came to the conclusion that sovereignty ultimately resided ‘in the states’ governments as forming one aggregate body: meaning by a state’s government, not its ordinary legislature, but the body of citizens which appoints its ordinary legislature, and which, the union apart, is properly sovereign therein.’

T. H. Green remarks that this is probably news to Americans. Anyway, when the analysis becomes so complicated, only scholars in the subject can follow it intelligently, and, in the face of practical experience, logic is relatively of little importance. While retrospective explanations of political phenomena are helpful in understanding what has taken place, the conclusions must be drawn from the facts and not from the theories. Everybody knows that some rebellions are justified, that some laws have enjoined unethical conduct, that other laws are unjust, and that frequently acts have been written into the statute books which no power on earth can enforce.

In the face of such facts it becomes somewhat academic, to say the least, for politicians to contend that breach of the law of the land is also, ipso facto, an act of immorality. ‘Jus est quod jussum est,’ Hobbes insisted in the seventeenth century; and in 1926 Bishop Freeman, of Washington, says that ‘law is divine and therefore we must obey it.’ There may be good reasons why a law should be obeyed, but the attribute of divinity is not one of them — not since the Battle of Naseby. Nor does it make sense to say that the sovereign is omnipotent or omniscient. It is daily demonstrated otherwise. No amount of meditation in barber chairs or bishops’ seats can produce as much truth as actual observation of the government in action, and it is to history rather than to philosophy that we should turn for information.


‘We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’

The Irreconcilables of those days were mistrustful. What if the leviathan thus projected got out of hand? What if it attempted to go beyond the limited purposes set forth in the preamble?

Madison took his pen and wrote enough to put him in jail in Kansas: ‘But ambitious encroachments of the Federal government, on the authority of the state governments, would not excite the opposition of a single state, or of a few states only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combination, in short, would result from an apprehension of the Federal, as was produced by the dread of a foreign yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as in the other.’

The distance we have traveled since 1788 is vividly brought out by comparing Madison’s suggestion with the accusation of the forces of Prohibition that the State of New York is guilty of treason when it refuses to pass a state enforcement law putting into effect the moral philosophy of the Middle West. The fact is, these gentlemen believe there is something magical in writing enactments into the Constitution — as though, perhaps, men’s very natures were changed thereby. Some captains of industry used to have the same idea about injunctions in labor disputes: that they settle something. The will of the nation does not arise from the statute book—it is merely recorded there; and if it is recorded wrongly the record should be corrected as soon as possible, for it has no validity unless it is right.

Sovereignty really resides in the will of the citizens, — not necessarily in a mere majority, for numbers may be counterbalanced by determination, or passion, or intelligence, or education, — and if the will of the citizens is not sufficiently predominant to overcome opposition and reasonably enforce the Government’s mandates, then they cannot be considered as decrees of the sovereign. The realm is full of such dead-letter laws, which have been nullified in whole or in part by the resistance of citizens, but never formally repealed.

James C. Carter, writing in 1903, discussed, in Law: Its Origin and Function, the attempts to enforce the Fifteenth Amendment: —

‘The legislative bodies of the several Southern states, still composed of white men only, proceeded to enact laws embodying various devices which would, and did, practically nullify the gift of the ballot. This provoked a more energetic determination by the General Government to enforce the right of freedmen to the ballot and to a general equality with the whites before the law. A formidable mass of legislation was enacted in pursuance of this determination, crowned by an amendment of the Constitution itself, prohibiting all political discrimination of every form between citizens, based upon the distinctions of color or race. The legislative devices by which white men had been enabled to baffle the gift of political equality to the freedmen being thus rendered ineffective, they took the only course remaining to them, and resorted to such forms of force and fraud as seemed best calculated to defeat the Constitution and Congressional enactments.

‘In some places terror was produced among the Negroes by a general and noisy display of firearms previous to and at the time of the elections, by which the Negroes were intimidated and abstained from voting through fear; in others, where they ventured to vote, the ballot was fraudulently tampered with so as to render their votes ineffective. To such an extent had this almost unconcealed practice of force and fraud by whole communities proceeded as to alarm the more moral elements of the communities guilty of it, and excite the fear that all distinctions between right and wrong would become obliterated and society itself fall into anarchy. Not even this suggested a withdrawal of their opposition to the Federal legislation, but only more ingenious contrivances by which they might avoid the grosser practices of fraud and violence and borrow the appearance of legality in their effort to deprive the black race of political equality. To this end constitutional provisions defining and qualifying the right of suffrage have been contrived and adopted in some states, and are likely to be further extended, whereby, without open discrimination, the practical exclusion of the inferior race from political power is secured. The validity of these constitutional provisions has been challenged at the bar of the Supreme Court, and it is not easy to see how they can escape judicial condemnation, but thus far that tribunal has avoided the questions thus thrust upon it, and there is an apparent disposition among the judges to escape them altogether. Should this disposition prevail, the whole of the mighty Federal legislation contrived to give political equality to the blacks will be practically annulled, leaving behind, however, the great constitutions of states, which should be models of openness, directness, and dignity, deeply marked by the evidences of concealment and deceit.

‘I do not discuss the question whether political equality ought to be bestowed upon a race to which social equality cannot be extended. Even tyranny may be beneficent in its aims, but never in its results, and the attempt to compel a community of men to do right by legislative command, when they do not think it to be right, is tyranny. It is Force in conflict with Order. Force will not gain its end, but will superinduce a mass of evil and suffering which was the last thing it desired or expected.

‘Many other instances might be given showing the impotence of legislation when put in conflict with custom, and refuting the notion that Law is now tending, or ever will tend, to become the creature of Force rather than of Order. Conduct will forever follow the great governing influences proceeding from the constitution of man and the environment in which he is placed. It will change as these influences change, and not otherwise.’


Since, then, there appears no doubt that there are limits to sovereignty in practice, no matter what are the requirements of legal theory, is there any formula by which we can tell in prospect whether or not a proposed enactment will exceed the powers of the government? Obviously the literal language of the Constitution is no guide, for some acts enjoined by it have proved in practice outside the scope of enforcible authority. John Stuart Mill attempted such a formula in his essay on Liberty:

‘The sole end for which mankind are warranted, individually or collectively, in interfering with the action of any of their number, is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of anyone, for which he is answerable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.’

So, also, Mr. Carter: ‘There is a guide which, when kept clearly and constantly in view, sufficiently informs us what we should aim to do by legislation and what should be left to other agencies. This is what I have so often insisted upon as the sole function both of law and legislation, namely, to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of like liberty to all others. Liberty, the first of blessings, the aspiration of every human soul, is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it. Whatever tends to preserve this is right, all else is wrong. To leave each man to work out in freedom his own happiness or misery, to stand or fall by the consequences of his own conduct, is the true method of human discipline. For myself, I reject that view of the cosmical scheme which would regard society as the unit for the well-being of which our efforts should be immediately directed, even though individual happiness and perfection were thereby sacrificed. The society most perfect, as a whole, will be that alone which is composed of the most perfect and happy individuals.’

The application of these principles in the modern State is extremely difficult because of the increasing complexity in human relations produced by the development of the industrial system and the concomitant movement of the organization of society away from individualism and toward collectivism. This movement, indeed, is astonishing. At the beginning of the nineteenth century English landowners still placed spring guns on their private premises to repel or kill trespassers. The courts finally held the landowner liable in damages even without a statute. For a century, no one with the aid of the law laid traps to kill another, and then the right denied to the landowners was assumed by the Government of the United States. Ten poisoning plants are operated to-day by the Federal authorities in the City of New York alone for the purpose of poisoning grain alcohol. In 1925 more than five hundred of the inhabitants were killed in this way,1 besides those blinded and otherwise crippled. The fact is patent that matters of public and private interest are tending more and more to become interdependent, and as the Government arrogates to itself, one after another, functions which formerly were discharged by private individuals, it refuses to be bound by the standards, either moral or legal, to which it formerly required those individuals to conform.

In other words, as the Government extends the sphere of its activities into business or religion or education, or the thousand and one matters which a century ago were supposed to be outside the scope of its authority, it finds that the rules which bound the individuals who formerly performed these duties are irksome and impracticable. Private persons may no longer repel trespassers with spring guns, but the State may poison nonconformists with wood alcohol and the victim or his widow may not sue the State for the injuries done him.

This has resulted in some very bad law. The Government, in its efforts to enforce Prohibition, has resorted to every conceivable form of lawlessness in procuring evidence; thereupon the Supreme Court, observing that all our lives and safeties were in jeopardy from this reign of terror, held that evidence obtained unlawfully — that is, from torturing witnesses, entering houses without search warrants, arresting citizens without probable cause, and so forth — was not available for use in the criminal prosecution of the prisoner whose rights had thus been violated. This judicial decision was the direct result of the lawlessness of the bureaucrats, but it was a wrong and ridiculous result — although all, perhaps, that the Supreme Court could do to ameliorate the condition of the citizens. Heretofore such evidence has always been admissible, but the prisoner has an action against the lawbreaking official for damages, including damages for being convicted of a crime — the conviction being the direct consequence of the unlawful act of the official. The difficulty, of course, is to procure a fair civil trial for a criminal. In New York and England evidence illegally obtained is admissible.

It is not fair, perhaps, to heap all the obloquy on the courts and the bureaus. The President and the Senate have provided that the law itself shall be broken by some in order to be enforced against others, by providing, in the socalled twelve-mile treaty with Great Britain, that British ships may bring liquor into port provided British ships suspected of trafficking in liquor may be seized within twelve miles of shore. Obviously, if it is against the law and contrary to the Constitution for American ships to have liquor in their ships’ stores in American ports, then the Government cannot constitutionally license the act by British ships, and the treaty is unconstitutional, and so unlawful.

Whatever the formula by which the validity of laws may be tested beforehand, after their enactment they are tried in the crucible of men’s wills. The South passed the Fugitive Slave Law and the North nullified it finally by going to war. Then the North passed the Fifteenth Amendment, and the South from the outset nullified it with a grim obstinacy which has deterred any man in his senses from proposing to try to enforce it. The Eighteenth Amendment is now in process of being nullified by the cities of the land at a staggering cost in corruption and debauchery. Eventually, if for no other reason than that the cities are rapidly gaining population in proportion to the rural communities, the nullification will be accomplished; but meanwhile what is the duty of an honest citizen? Should he read the writing on the wall or the writing in the statute book?


Man is not meaningless except as part of some social unit. Whatever the necessities of governmental theory, no man, in actual fact, surrenders his whole being to the State. A State is only a State when it is composed of men; there cannot be a State where the citizens are dogs or steam engines, which respond without question to the fiat of the Government.

Man has a sense of right and wrong. If the State — or its instruments — goes too consistently against that sense, he is stimulated, first to antagonism, and then to resistance. The State is for him sovereign only when his conscience is not stirred against its performance, and whatever brings the conscience of man into opposition to the State must, for the State, be sacred ground — not only by reason of man’s duty to himself, but also because of his duty to the State. For in a democracy every citizen must share the responsibility for the development of the government and the compelling of it to do right and to discharge properly its function of so ordering society as to afford the citizens the best possible opportunity to live the good fife. He cannot discharge this duty by blind obedience without examination of the aims and methods of the State; to do so is to fail not only in his duty to himself — for to postulate infallibility for the fiats of the State is to relieve ourselves from any requirement of thought whatever — but also in his duty to the State; because any Government which is sure that none of the citizens will ever resist tyranny by force is certain to drift into despotism, and so be in danger. As Mill said: ’The worth of a State, in the long run, is the worth of the individuals composing it; and a State which postpones the interests of their mental expansion and elevation. to a little more of administrative skill ... a State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes — will find that with small men no great thing can really be accomplished; and that the perfection of machinery to which it has sacrificed everything will in the end avail it nothing, for want of the vital power which, in order that the machine might run more smoothly, it has preferred to banish.'

If, by definition, a law is a statute enacted by the Government, then to disobey that statute is obviously unlawful, and there is no legal justification for such disobedience. The courts are concerned with nothing beyond this. But the whole duty of the citizen cannot be compassed with such a formula, unless infallibility on all questions be conceded to the second-rate lawyers who sit in our legislatures; and such a doctrine, if carried to its ultimate logical conclusion, would preclude the repeal of enactments or t lie amendments of constitutions.

While the citizen has no right to act with indifference to the well-being of the social whole, nevertheless both his duty to himself and his duty to society may exact resistance to attempted decrees of the sovereign. His very oath to support the Constitution may require that he oppose an attempt to enforce part of it; for such an attempt, if ill-advised, may result in bringing the whole structure of the government crashing down in a welter of debauchery or violence which wall jeopardize the continuance of the very fundamental principles on which the organic law is founded. Nor can the inert and docile citizen escape, by passive obedience, his share in the responsibility for such a disaster. There is no place for Pontius Pilate in the modern scheme of things, and men are held to as high a liability and accountability for their omissions as for their acts. The consequences of doing nothing are just as inevitable and far-reaching as the consequences of affirmative action. He who obeys a law which is wrong contributes by that to the final debacle, the intensity of which is increased, because delayed, by that obedience.

Says Harold J. Laski, in A Grammar of Politics: ‘My duty, therefore, to the State, is, above all, my duty to the ideal the actual State must seek to serve. There are, then, circumstances in which resistance to the State becomes an obligation if claims to right are to be given validity. We can lay down no general rules, either of time or situation. Anyone who studies at all carefully the history of revolution will be convinced that the clement of chance is too large to admit the entrance of prediction. We can only say that a general order becomes moral only in the degree to which it is built in the conscience of the citizens. Antagonism 1o the demands of authority will always be the exception in history; but those demands will win their way from inert acceptance rather than active consent unless, over a period of time, they offer service to the theoretic purpose of the State. For any social order which fails consistently to recognize the claims of personality is built upon a foundation of sand. Sooner or later it will provoke the dissent of those whose nature is frustrated by its policy. Its disasters will become their opportunity. For to deny the claims of right is to sacrifice the claim to allegiance. The State can exercise moral authority upon no other basis.’

The violence done to the Constitution by an unwise amendment may be pregnant with greater potential dangers to our form of government than any amount of resistance to its enforcement. We may be — and probably are — moving, in theory, from individualism toward collectivism, but that does not imply an acceptance of the principle of government by revelation. Men must think, or sink to the condition of beasts. if they are to be allowed to think, it is no answer to their problems to say, as did the Attorney-General, ‘We face a condition and not a theory. What are you going to do about it?’ If a large number of citizens are convinced that the National Prohibition Act compels them to live lives of hypocrisy, cowardice, and servility, they will feel no moral obligation to observe the law. On the contrary, they will develop an esprit and morale in the breaking of it in the name of patriotism, as the people of northern Europe dealt with the Church in the name of religion. ‘The time has come,’ says Dicey, in his Law of the Constitution, ‘when the fact ought to be generally admitted that the amount of government — that is, of coercion — of individuals or classes by the State, which is necessary to the welfare or even to the existence of a civilized community, cannot permanently coexist with the effective belief that deference to public opinion is in all cases the sole or the necessary basis of a democracy.’

In short, for every law there must be a moral sanction, or it is a moral nullity. Nor do the peculiar tenets of deportment to which members in good standing of the Methodist Church subscribe constitute any criterion of what is moral in this sense. To be moral is to know what you are doing. Plato said that the moral life is not the life one ought to lead, but the life that, after solemn reflection and self-examination, one really wants to lead. An automaton is not moral, though sinless. Our first duty is to our conscience, — the ‘inner voice ’ of Socrates, the ‘still small voice’ of Elijah, — not to the howling of the pack. There is a silent referendum in the hearts and minds of men on every important enactment by a legislature and on every important decision by a court which involves a fundamental principle of civil liberty, and, without a favorable issue in that referendum, the statute and decision alike are writ in water.

In this country, where the people have for long been accustomed to consider whether a matter may be lawful rather than whether it may be right, courts have acquired an immense prestige largely at the expense of the legislative branch of government. The legislature has contributed to this not a little by its own acts, and distinctly recognized its own inferiority in the provisions of the Prohibition Act.

The only method of enforcement nowpossible to put into operation in the Southern District of New York is the so-called padlocking process. Although selling liquor is made a statutory crime, there is still in the Constitution the guaranty of a jury trial for one accused of criminal breach of the injunctions of Congress. No such guaranty exists, however, for one accused of breach of the injunction of a court. The statute, therefore, provides that a court can issue an injunction forbidding the sale of liquor in designated premises. If a sale subsequently occurs, this will constitute a breach of the judicial injunction, and the offender and his landlord are tried, without a jury, by the judge whose dignity has been affronted by the illegal sale — and, of course, convicted. This denial of a jury trial is a most important element of attempted enforcement of the lawin communities like New York City, where grand juries have refused to indict, and petty juries to convict, no matter what evidence is offered, or how many stool pigeons testify.

Even John Hampden, when he refused to pay ship money, was given a trial by jury — though Charles had packed it, and picked the judges. To say the least, the denial of a jury to the accused is a departure from the ancient rights supposed to be fundamental in our system of government, which cannot be contemplated without apprehension. The extension of the scheme for the purpose of coercing large and recalcitrant sections of the citizenry into the observance of customs supposed to be for their good, but distasteful to them, will inevitably follow, if this instance proves successful.


If, then, trial by jury is at stake, and the experiment involves an attempt to substitute Mosaic government by revelation for government resting on the moral sense of the electorate, how is it that a million men, in the words of the late Mr. Bryan, do not spring to arms between sunrise and sunset? It is because the real issues have not yet emerged so as to be comprehensible to the ordinary citizen. The schoolteachers and the Protestant clergy, in an attempt to maintain the status quo in which men will listen to them, and they shall be important, have preached obedience from the outset. The great employers of labor, conceiving it is immoral for distillers to take the money of the workingman, have no such scruples when he spends his surplus on movies, motor cars, and silk shirts, the profits from which go into their own pockets. The rural communities, contented with the special exemptions which permit them the beverages to which they are accustomed, are glad to bring unhappiness and discontent to the cities, which they hate and envy.

A stew must simmer a time before it is cooked. The danger to liberty is rather that the storm will break too soon, before it has really gathered strength, and so result in some dishonest working compromise between the parties which is based simply on expediency instead of principle. It is more important to remove this cancer from the Constitution than to suppress the visible symptoms of revolt by legislating that light wines and beer are not intoxicating. It makes no serious difference whether men drink or not; but if the attempted abolition of the jury trial goes unrebuked and is successful, then the great safety valve which protects us from the legislative idiocies of the moment is gone, and we shall have to send a very different type of man to Congress from the type we have been sending.

Eventually the leaders will be found for the task. The nullification of the Fugitive Slave Law developed men like William Lloyd Garrison, Thomas Wentworth Higginson, John Biown, Amos Lawrence, Abraham Lincoln, and Charles Sumner, who were not afraid to do what they conceived to be right no matter how many Dred Scott decisions were handed down by the Supreme Court. The nullification of ship money produced Oliver Cromwell, John Hampden, John Pym, Harry Vane, and the Regicides. The nullification of England’s tax laws produced George Washington, Benjamin Franklin, Patrick Henry, Henry Lawrence, and a host of others who feared anarchy less than they hated injustice. In this connection Burke remarked: ‘Pursuing the same plan of punishing by the denial of the exercise of government to still greater lengths, we wholly abrogated the ancient government of Massachusetts. We were confident that the first feeling, if not the very prospect of anarchy, would instantly enforce a complete submission. The experiment was tried. A new, strange, unexpected face of things appeared. Anarchy is found tolerable. A vast province has now subsisted, and subsisted in a considerable degree of health and vigor, for near a twelve-month, without governor, without public council, without judges, without executive magistrates. . . . To prove that Americans ought not to be free, we are obliged to depreciate the value of freedom itself; and we never seem to gain a paltry advantage over them in debate, without attacking some of those principles, or deriding some of those feelings, for which our ancestors have shed their blood.'

The applicability of these words today is remarkable. Rather than submit to what they regard as unjust invasions of their rights, whole communities have submitted to, even encouraged, a rising tide of crime, corruption, and disorder which seriously threatens the public peace and the functioning of the courts, so that the terrifying alternative of calling on the army of the United States or admitting defeat in large areas now confronts the enthusiasts who are responsible for the present pass. The next amendment — the one which would have repealed Amendment IV, which guarantees security against searches and seizure without warrants — obviously cannot now be passed in view of the no uncertain reception accorded to the attempt to obtain the child-labor amendment. The electorate is now in no mood for further tinkering with the Constitution, no matter what the exigency.

Of course, what the moral reformers do not understand is that deliberate perversion of power brings with it, in the long run, its own downfall. It makes no difference how great is the majority, if the consciences of the minority are antagonized. G. Lowes Dickinson, in The Development of Parliament in the Nineteenth Century, states this lucidly: ‘Government by the majority is a convenient means of conducting national affairs, where and in so far as there is a basis for general agreement deeper and more persistent than the variations of surface opinion; but as soon as a really fundamental point is touched, as soon as a primary instinct, whether of self-preservation or of justice, begins to be seriously and continuously outraged, the democratic convention gives way.’

It solves nothing to make a solitude and call it peace. The persecution of the Christians did not avail to save the Roman Empire. Man must go by his own moral certainties; and if he believes that the captain of the ship is unawares steering for the rocks, he must not obey him. The real safeguard of morals is found, not in the statute book, but in the readiness of man to give battle to tyranny, ambition, and selfishness in whatever guise these come. When men have ceased to be prepared to fight if necessary, then the Government’s greatest incentive to try to do right is removed. Obedience is all that a despotism asks. If it can always secure that, then there is no limit to its control and no masters to whom it must render an account.

‘I do beseech you,’ said Cromwell to the Scottish Kirk, as he started northward with his Ironsides, ‘in the bowels of Christ, bethink you, that ye may be wrong.’

  1. It is interesting to note that Defoe recommended hanging Dissenters without a trial in the eighteenth century, but even Machiavelli never suggested poisoning the subjects of his Prince — probably not because of moral scruples, but because he felt it was unwise to kill subjects who might prove useful in case of war.