Our Lawless Heritage

I

THE question is frequently asked, ’Is the Eighteenth Amendment making us a nation of lawbreakers?’ There are two answers, depending Upon the meaning of the question. If it is intended to ask whether many people are disobeying the law and whether the Amendment is helping to break down respect for law itself, the answer is emphatically, yes. If, on the other hand, the question is intended to imply that we were a law-abiding nation before we went dry, the answer is as emphatically, no. Any law that goes counter to the strong feeling of a large part of the population is bound to be disobeyed in America. Any law that is disobeyed necessarily results in lawbreaking and in lowering respect for law as law. The Eighteenth Amendment is doing that on a gigantic scale, but it is operating upon a population already the most lawless in spirit of any in the great modern civilized countries. Lawlessness has been and is one of the most distinctive American traits. It is obvious that a nation does not become lawless or law-abiding overnight. The United States is English in origin, and, even making allowance for the hordes of ‘foreigners’ who have come here, there must be some reason why to-day England is the most law-abiding of nations and ourselves the least so. It is impossible to blame the situation on the ‘ foreigners. ’ The overwhelming mass of them were law-abiding in their native lands. If they become lawless here it must be largely due to the American atmosphere and conditions. There seems to me to be plenty of evidence to prove that the immigrants are made lawless by America rather than that America is made lawless by them. If the general attitude toward law, if the laws themselves and their administration, were all as sound here as in the native lands of the immigrants, those newcomers would give no more trouble here than they did at home. This is not the case, and Americans themselves are, and always have been, less law-abiding than the more civilized European nations.

Living much in England, I have already had frequent occasion to comment, in the Atlantic and elsewhere, on the startling difference which one feels with respect to the public attitude toward law in that country and in our own. No one can be there without feeling this difference, but, lest my own insistence upon it be set down to prejudice, let me quote the opinion of Dr. Kirchwey, head of the Department of Criminology in the New York School of Social Work, formerly Dean of the Columbia Law School, and onetime Warden of Sing Sing Prison. ‘ Our visitor to London, ’ he writes in a recent article, ‘will have heard much of the low crime rate of that great city, of the efficiency of the unarmed police, of the swift and sure administration of criminal laws. Let him look further and note the ingrained habit of law observance of every class of the population from the man in the street to the judge on the bench. He will find no attempt made to violate the restrictive laws governing the sale of liquor, whether by licensed vendor or by the customer; rarely a violation of traffic regulations by cabmen or private driver ... he will not discover a trace of the sporting spirit which leads his fellow citizens of the American commonwealth to laugh at the escape of a daring criminal from the legal consequences of his guilt. And, if he cares to pursue his studies further, he will find on the other side of the English Channel still other communities where, as in England, a low crime rate is set against a background of an all but universal sentiment of respect for law and order.’ How is it that we in America to-day are without the pale of this respect for law which is one of the fundamentals of civilization? In seeking an answer we obviously cannot confine ourselves to the present decade, but must dig deep into the past. Only parts of the appalling record that we shall find, if we do so, can be touched upon in a brief article.

Respect for law is a plant of slow growth. If, for centuries, laws have been reasonably sound, and impartially and surely enforced by the lawful authorities, respect for law as law will increase. If, on the other hand, laws are unreasonable or go counter to the habits and desires of large parts of the population, and are not enforced equitably or surely, respect for law will decrease. On the whole, the first supposition applies to the history of England for three hundred years and the second to our own.

II

Let us consider our colonial period first; and it must be remembered that we were a part of the British Empire for a longer period than we have been independent. The way in which those supposedly godly persons, the leaders of the Massachusetts theocracy, began at once by breaking the law of England will help us to an understanding of the whole colonial situation. The Massachusetts Company, a business corporation in the eyes of the English Government, applied for a charter of incorporation and received it. It provided for what we should call voting stockholders and a board of directors to be elected by them. Nothing more was intended in the grant by the Government. Some of the leaders in the company conceived the brilliant idea of secretly carrying the actual charter to America and using it as though it were the constitution of a practically selfgoverning State. This was done, but the foundation of the strongest of the Puritan colonies was thus tainted with illegality from the start. Not only that, but in the beginning even the terms of the charter were not complied with and the government was usurped by the leaders, the government thus being made doubly illegal. The reasons for these acts included the distance of America from England and the desire of the leading colonists to govern themselves without interference from the home country.

With local variations the story of the colonial struggle for administrative (rather than political) independence explains much of our later legal history. Speaking generally, we may say that the standard form of colonial governments came to be that of a governor appointed by the Crown, of an upper house appointed by the governor or elected subject to his veto power, and a lower, popularly elected assembly. In some cases the upper house had judicial functions, and many judges, such as those in the admiralty courts, were appointed by the Crown. The colonists were settled on the edge of a vastly rich virgin continent which fairly cried aloud to be profitably exploited. Imperial legislation was considered to be, and frequently was, a hampering influence. In this complex we may find the beginning of the disease of lawlessness.

Law must have some sanction. There can be only three. It may be considered either as the dictum of some supernatural being, or as the command of an earthly sovereign, — not, of course, necessarily an individual, — or as receiving its sanctity from the consent of the governed. The supernatural was tried only in New England theocracies, and soon abandoned as unworkable. The sovereignty of the empire obviously resided in ‘the King in Parliament,’ but that, for practical purposes, the colonists usually denied or strove against. The consent of the governed, in a strictly local sense, was all that remained, and it has continued, also in a local or partial sense, to control American obedience to law. Even if local law was fairly well obeyed when passed by the colonists themselves, respect for law as law could not fail to be lessened by their constant breaking or ignoring of the imperial laws. Without attempting to go into detail or to adopt a chronological arrangement, we may note some of the ways in which this was brought about.

A constant source of lawbreaking, particularly in the North, was the legislation by Parliament with regard to what were called ‘the King’s Woods.’ In that day of sailing ships, trees suitable for masts were in great demand. England preferred to depend upon the forests of America rather than upon the foreign ones of the Baltic Provinces, and laws were made to save for the use of the Royal Navy all trees above a certain size upon lands not specifically granted to individuals. The colonists on the spot felt this to be an abridgment of their right to exploit the continent and use all its resources themselves. Not only were the laws disobeyed and the authority of the officially and legally appointed ‘Surveyors of the Woods’ flouted, but force was used to oppose authority, and rioting not seldom was employed against law. Again, according to the generally accepted economic theory of the day, colonies were supposed not to manufacture in competition with the home country, but to supply her with the raw materials. Laws against manufacturing worked, as a rule, but little hardship on the colonies, owing to high wages, scarcity of skilled labor, and other reasons, but they did in a few instances, as in the case of wool and smaller hardware such as nails. These were mostly household manufactures, but they were carried on by nearly every household in conscious defiance of imperial laws.

After the French and Indian War and the acquisition from France of Canada and the West, the British Government by proclamation in 1763 forbade any settlement in the new regions, the intent being to consider the problem deliberately in the light of Indian and other relations which the colonists had never been able to agree upon among themselves. Owing to procrastination, this temporary, and to the colonists most galling, restriction was not removed. Settlers and traders ignored the proclamation and poured into the new territory, all against the law. In fact, whenever there was profit to be made, the colonists ignored even their own laws. Most colonies had legislated against selling firearms or spirits to the Indians because of the obvious dangers involved, but these laws were constantly transgressed. In New York it was made illegal to trade with the French in Canada by way of Albany because by so doing the French were enabled to strengthen their Indian alliances at the expense of the colonists, but the temptation to profit was too great, and the merchants not only broke the law, but likewise the governor whose farsighted policy had insisted upon its passage.

Of even more pernicious effect were the laws of trade. For example, in 1733, owing to the insistence of the West Indian sugar planters, Parliament passed an act placing a prohibitive duty upon the importation into the continental colonies of any molasses from foreign islands. For reasons which we need not go into, had this law been obeyed, the commerce of New England, including its profitable slave trade, would have been ruined. The law was never obeyed, the New Englanders became a race of smugglers, and the most reputable merchants became lawbreakers. In this case, smuggling and lawbreaking were forced upon them, but, having become used to them, they passed on to smuggling when there was no reason but increased profit. In the French and Indian War, twenty years later, we find the merchants trading with the enemy on a scale which certainly prolonged the war, and in the decade before the Revolution men like John Hancock did not hesitate to smuggle wines on which there was only a moderate duty, and even forcibly to resist the authorities in doing so. As the Revolution drew nearer, the radicals made it a point of patriotic duty to break the English laws, and force and mob violence became more and more common. The Boston Tea Party is a case in point. That wanton destruction of fifty thousand dollars’ worth of private property was in no way essential to the patriotic cause and was condemned by many of the patriot party.

As a result of the imperial-colonial situation through a century and a half, only some of the aspects of which have we touched upon, there steadily developed a disrespect for law as law and a habit of lawbreaking. The colonists made up their minds not to obey law, but merely to obey such laws as they individually approved of or such as did not interfere with their own convenience or profit. We are not arguing the ethics or rights of the cases, but merely stating facts and results. Moreover, in every colony there was constant conflict with the royal governors, so that the executive power came to be considered as inherently something to be distrusted and limited as far as possible, a feeling existing to-day. The executive, represented to the colonists as a hostile and outside power in their ‘constitutions,5 came to appear a power to be disobeyed and thwarted whenever feasible. In a similar way did the judicial. The people stood together to defeat the courts and to protect friends and neighbors. This was particularly notable in the admiralty courts and all cases prosecuted under the laws of trade. Juries would not convict no matter how flagrant the smuggling or other lawbreaking. Thwarting courts and officials became as much a game as fooling prohibition officers to-day.

In the South another element was introduced into the complex situation by slavery. There were slaves in the North also, but for the most part in too small numbers to affect the matter greatly. In the South the large numbers of blacks, many of them recently imported from the jungle, and their peculiar status as personal property, resulted in legislation and judicial administration which tended to some extent to break down respect for law. In Maryland and many other colonies, for example, a negro was not allowed to testify against a white man. Moreover, the court in which the slave was most likely to be tried was that presided over by a single local magistrate, a slave owner himself. In Virginia until 1723, if a master killed his slave in consequence of ‘lawful correction,’ it was viewed merely as ‘accidental homicide.’ The raping of a female slave was ‘trespass upon property’! If we consider the laws relating to the negro, and the relations between him and the whites, it is evident, even admitting that the great majority of slave owners may have been kindly, that in the two centuries of the existence of the institution among us an immense amount of crime must have gone not only unpunished but without fear of punishment.

One other element may be taken into consideration, the effect of the frontier. Until thirty years ago, America has always had a frontier, and that fact has been of prime importance in many respects for the national outlook. For our purpose we may merely note that in the rough life of the border there is scant recognition for law as law. Frequently remote from the courts and authority of the established communities left behind, the frontiersman not only has to enforce his own law, but he elects what laws he shall enforce and what he shall cease to observe. Payment of debt, especially to the older settlements, may come to be looked upon lightly, whereas horse stealing may be punishable with shooting at sight.

III

When the colonies united and won their independence and the United States was formed, there had thus already developed a fairly definite attitude toward law and authority. In many respects, owing mainly to their economic prosperity, the colonies were more law-abiding than Europe. In all my research, for example, I have found only one case of a traveler being robbed on the highways. Moreover, the colonists came to be a kindly and hospitable folk, and crimes involving brutality were proportionately less common than in the Europe of that day or the United States of this. But the Americans had developed a marked tendency to obey only such laws as they chose to obey, and a disregard of law as law. Laws which did not suit the people, or even certain classes, were disobeyed constantly, with impunity and without thought. A habit had grown up of attempting to thwart the courts and judges, of distrusting the executive, and of relying solely upon the legislatures. Juries had got into the way of not considering the law, but merely their own or their neighbor’s interests. When cases became desperate or law officers made some show of real enforcement, as did occasionally a rare Surveyor of the Woods or a customhouse officer, they were taken care of by mobs, and as a rule the absence of any real force behind the show of royal authority made the officials powerless. In the national period we shall see the fruits of this long training in disrespect for law.

We need not linger over Shays’s Rebellion in Massachusetts in 1787, when mobs of malcontents with genuine grievances forced the closing of courts and brought the state to the verge of civil war; or the Whiskey Insurrection in 1794 in Pennsylvania, when attempts to enforce an excise tax required the use of fifteen thousand Federal troops. Nor need we go into the practical nullification of Federal laws and authority by some of the New England states in the War of 1812, or the smuggling and trading with the enemy during that ill-advised conflict; or into the threatened nullification of the Federal tariff by South Carolina some years later. The ripest fruits of disregard for law are found mainly when passions are aroused, as they were for several decades from 1830 onward. We will briefly touch first upon the persecution of the Irish and Catholics, in which law and order were abandoned from 1833 to 1853. The building of the Baltimore Railroad was punctuated by race riots. Even the militia failed to quell a similar one on the Chesapeake and Ohio, and a ‘treaty’ had to be drawn up. In 1834 the Ursuline Convent near Boston was burned to the ground and sacked by anti-Catholics. The next night a race riot, this time directed against negroes, broke out in Philadelphia in the course of which thirty houses were sacked or destroyed, a church pulled down, and several persons killed. Similar riots occurred within a few weeks at other places, and in a few years the militia had to disperse a mob of two thousand marching on the house of the Papal Nuncio at Cincinnati. The Irish quarter in Chelsea, Massachusetts, was attacked; the chapel at Coburg was burned, that at Dorchester blown up, and that at Manchester, New Hampshire, wrecked; at Ellsworth, Maine, the priest was tarred and feathered; the convent at Providence was attacked; and at St. Louis a riot resulted in ten deaths. But it is unnecessary to detail more, such incidents being all too common throughout the country.

Similar violence was used against the Mormons, mainly while they were resident in Missouri and before they had adopted the doctrine of plural wives. The feeling against them first manifested itself in tarring and feathering, but by the autumn of 1833 a veritable reign of terror had begun. Houses were destroyed, men were beaten, and even a battle took place. By November mobs had forced about twelve hundred Mormons to leave their homes, pursuing them across the Missouri River and burning over two hundred of their forcibly abandoned houses. The governor was unable to afford them protection, although admitting that they were entitled to it. Law having completely broken down, a military order was given either to drive them all from the state or to ‘exterminate’ them. They had broken no laws, but in another battle in defense of their legal rights seventeen were killed and some of their bodies horribly mutilated after death.

We find the same disregard of law when we come to the Abolitionists and the antislavery agitation. The episodes in connection with this, such as the murder of Lovejoy in Illinois, the mobs threatening Garrison at Utica, Boston, and elsewhere, the destruction of printing plants and newspaper offices, are almost too well known to call for repetition. Even Connecticut, ‘the land of steady habits,’ was not immune. In Philadelphia a pro-slavery mob burned Pennsylvania Hall, dedicated to Free Speech. We could multiply instances indefinitely, but need only say that violence was the order of the day. Lincoln complained that law and order had broken down, that ‘wild and furious passions’ were substituted for ‘the sober judgments of the courts,’ that ‘outrages committed by mobs form the everyday news of the times’ and that they were ‘common to the whole country.’

The passage of the new Fugitive Slave law brought more lawlessness. Calhoun had rightly stated in the Senate that it was ‘impossible to execute any law of Congress until the people of the States shall coöperate’ — a clear statement that Prohibitionists would have done well to have remembered. Everywhere in the North the law was not merely disobeyed but bloodily denounced. In New York, for example, it was declared that ‘instant death . . . without judge or jury’ should await anyone who attempted to enforce it. The New York Tribune declared that it would be better to blow up the Capitol at Washington than to allow the law to be passed in it. Throughout the states, in the decade preceding the Civil War, there was an utter disregard of law in the sense that people obeyed such national laws as they chose to and used violence to defeat those they were opposed to. In the North the Fugitive Slave law was the one specially attacked. In the South the mails were interfered with and free speech was suppressed. A Northern antislavery man could not enter the Southern states without danger to his life. Sums of five thousand dollars and upward were offered for the kidnapping of prominent speakers on the subject of slavery. In Kansas the struggle between those who wished to have the state enter the Union as free and those who wished it slave resulted in such constant violence as to give the state the name of ‘the dark and bloody ground,’ though Professor Channing finds that probably only two hundred people were killed — killed, it must be remembered, however, in time of peace. To detail all the acts of violence throughout the country in the decades before the war would be impossible here. The total effect, however, would be to picture a nation in which passion had usurped the place of law. The riots which occurred after war was declared may be partially discarded for our purpose, though they probably would not have occurred in a country in which the people had an ingrained sense of law. The worst one in New York, in 1863, lasted four days and resulted in the destruction of $1,500,000 worth of property and the loss of one thousand killed and wounded. It was followed by lesser riots at Detroit, Kingston, Elmira, Newark, and elsewhere. In the country districts threats of arson and murder were openly made.

The war over, we found ourselves with the Fourteenth Amendment to the Constitution, giving the negro the right of suffrage. However it may or may not have been observed in the North, it is obvious that it could not be and never has been in the South. In some states, such as Alabama, where the negroes outnumbered the whites, it meant that the whites might be ruled by the blacks, and in any case it meant serious trouble, racial feeling being what it was then and is now. The complete nullification of such a law, having all the sanction of being a part of the Constitution, could not fail to reduce respect for law. Again, Americans obeyed such laws as they chose, and disregarded or opposed by force such as they did not choose.

IV

We may now come to another phase of our national lawlessness. There is a good deal of popular misunderstanding with regard to lynching. It is generally regarded as rather peculiarly a Southern institution, and the consequence of attempts at rape on whites by negroes. The term ‘lynch law’ appears to have been first used in 1834, and it is from that time that the practice of lynching became common in the United States. At first the most notorious cases were those of gamblers, such as occurred in Vicksburg, Mississippi, and in Virginia. It was, however, also practised in the North, and spread to California and the West after the discovery of gold. In California, in 1855, out of five hundred and thirty-five homicides committed there were but seven legal executions. The celebrated Vigilance Committees were formed in San Francisco, each of which hanged four men and banished about thirty. These ‘popular tribunals’ were also formed in Utah, Nevada, Oregon, Washington, Idaho, Montana, Arizona, New Mexico, and Colorado during their early periods of settlement.

That lynching was not confined to negroes, the South, or the crime of rape is easily proved by such statistics as we have. I have no recent figures, but as this article is concerned with our ‘heritage,’ and not our present lawlessness, this is not of account. In 1900 over 52 per cent of the persons lynched in Illinois were white, over 78 per cent in Indiana, over 54 per cent in Missouri, over 38 per cent in Kentucky, and over 35 per cent in Texas. Tables prepared by the United States Government failed to show any relation between the distribution of lynchings and the proportions of blacks to the total state populations. Nor did they show any correlation between the numbers of lynchings and the percentages of illiterates or foreigners. The responsibility therefore must rest on the literate native element.

In the period from 1882 to 1903 there were 2585 persons lynched in the Southern states, of whom 567 were whites, 1985 negroes, and 33 ‘others’; in the Western states the figures were, respectively, 523, 34, and 75; in the Eastern states, 79, 41, and no ‘others.’ In the country as a whole there were thus lynched in the twenty years 3337 persons, of whom 1169, or over one third, were white, and 2060 negroes. In all three sections the crime for which the greatest number of lynchings occurred was murder. Rape comes next, with ‘minor offenses,’ arson, theft, assault, following in much smaller proportions. In our country in a time of perfect peace there were thus an average of between three and four lynchings every week in the year for the twenty-year period chosen by hazard for examination. Allowing for the difference of population, is it possible to conceive of two persons being murdered by individual citizens, instead of allowing justice to take its course, every week in England for a generation?

In the above rapid and wholly inadequate survey no attention has been paid to the problem or statistics of ordinary crime. The United States has no adequate criminal statistics even at the present day. Such a survey projected into the past would be impossible. I have not been concerned with, so to say, ‘crimes under law,’ but with opposition to or disrespect for law itself as law. Even thus I have neglected much which would properly be included in a full treatment of the subject.

It is needless to say that we are not going to be able to shed this heritage quickly or easily. In fact we have gone so far on the wrong road that it is by no means certain that we can ever get back on the right one even with the best of intentions. Inbred respect for law, as I said in the beginning, is a plant of slow growth. For three centuries we have been developing disrespect. Our heritage has made recovery more difficult for us by bringing about conditions that themselves help to increase our disrespect and lawlessness, aside from the feeling of the individual citizen. This portion of our heritage is in large part from New England. The Puritans insisted that their own ideals of life and manners should be forced on the community at large, and they also believed that any desirable change could be brought about by legislation. Partly from our Puritan ancestry and partly from the exaggerated influence attributed to the legislatures in colonial days for the reasons I have noted above, Americans have believed that their ideals should be expressed in the form of law, regardless of the practical question of whether such laws could be enforced. They have apparently considered that the mere presence of such laws will help respect for the ideal, regardless of the fact that the presence of such unenforceable laws will bring about disrespect for law itself. Every minority which has had a bee in its bonnet has attempted to make that bee ‘home’ into a law, and to a remarkable extent the majorities have not cared, partly because they take little interest in public affairs, but mainly because they imagine that even if some ‘fool law’ is passed they can disobey it if they choose, as they have others. Because we have ceased to have any respect for law we allow any sort of laws to be passed, and then — the vicious circle continuing — our disrespect increases yet more because of the nature of such laws. When Americans talk about their glorious past, it may be well for them to remember that we have one of the most sinister inheritances in this matter of law from which any civilized nation could suffer, a heritage that we are apparently passing down to our children in a still worse form. For this reason, if for no other, I believe that the unenforced and unenforceable Eighteenth Amendment was one of the heaviest blows ever directed against the moral life of any nation.