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The Farce of Enforcement

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THE FARCE OF ENFORCEMENT By COURTLANDT NICOLL Parallels acts of1850 and 1870/140 15th amendment) Fugit we Slave haves in North Reprinted from the NORTH AMERICAN REVIEW June, 1929 for the ASSOCIATION AGAINST THE PROHIBITION AMENDMENT 21 East 40th Street New York THE FARCE OF ENFORCEMENT valuable lesson in humanity to many laws are innocuous. No serious at- who call themselves Christians. After tempt to enforce them is made. complimenting Pliny on his attitude, They lie quietly in the Penal Codes of and warning him to pay no attention the several States, to be looked at to anonymous accusations, he says, like mottoes on the wall, stating our "They (the Christians) must not be moral ambitions, but not to be taken sought after". too seriously. Today, with our land filled with Government spies, with its agents W HEN we try to take them seri- provocateurs, informers and stool ously and enforce them, as in The Farce of Enforcement pigeons trying to "seek after" and the case of the National Prohibition secure the harsh punishment of those Act, the effort brings more evils in who, like the Christians of antiquity, its train than the statute was de- By COURTLANDT NICOLL have violated the law but in doing so signed to cure. Sportsmanship, clean have done nothing wrong or danger- living and temperance cannot be ous to others, how calm and Chris- ensured by penal statute. The Fed- tian seems the advice of the pagan eral Government was not created to T HE author, a prominent New York lawyer and former State Senator, played a leading part in organizing the much-discussed Committee of Legal Volunteers, emperor! be a moral policeman, and the which offers free legal aid to defendants coming under Senator Wesley L. Jones's criminal law is solely to protect drastic Prohibition enforcement law. This action has been paralleled in other cities, E AMERICANS like to see our W society by punishing acts which are has been widely assailed by dry leaders, and has added new fuel to the ever increas- ing flames of Prohibition controversy. Mr. Nicoll here explains his motives, moral precepts in the criminal universally condemned as immoral, suggesting that the Jones Law is one of the most effective steps yet taken for the law. We hang Roosevelt's words, or are necessarily dangerous to the eventual nullification of the Eighteenth Amendment. "Hit the line hard, but play the well-being of another, or of his game fair", in our boys' rooms and property. When the Federal Gov- then amend the Penal Law of New ernment steps out of bounds and S OON the persecution itself, as is to which they refer is Christianity! York to provide that any player on tries in an alien sphere to enforce generally the case, caused the Though written so long ago, this a professional team who throws" a moral reforms by penal legislation, crime to spread, and it appeared correspondence is interesting in the game, shall be guilty of a felony. it makes a double error, and, conse- in new forms. For many of each light of present events. Pliny wants So dear to Heaven is saintly quently, a double failure. sex and of every age and rank are and to know how far he should go in en- chastity": consequently, illicit love In Christian countries at least, the will continue to be suspected. The mis- forcing the law. He explains that, is made a misdemeanor in Penn- moderate use of intoxicants is not chief bas spread, not only through the although he has inquired into the sylvania, and also in New York if universally condemned as immoral, cities, but also through the villages and matter with some care, and has tried either party is married. "Be ye nor is it so dangerous to the rights of open country. to obtain "the real truth by putting temperate in all things" and we have others as to be generally regarded in to the torture two maidens, who are the "Jones Law" which provides the civilized world as warranting Familiar as they seem, the words called deaconesses", he could not that the penalty imposed for each penal legislation wholly prohibiting quoted above were not taken from discover that the Christians did offense shall be a fine not to exceed traffic in liquor. any contemporary report on Prohi- anything wrong, and that at worst $10,000, or imprisonment not to The Eighteenth Amendment and bition conditions. They were written they were but subject to a perverse exceed five years, or both. the National Prohibition statute are eighteen and a quarter centuries ago. and excessive superstition". He Excellent as is the purpose of these examples of an effort to stop, by They are extracts from a letter sent states that he was, therefore, most statutes, they completely miss their penal law, acts which many people by Pliny, Governor of Bithynia, to reluctant to punish them, unless aim because they represent attempts wish to commit and which in them- the Emperor Trajan, asking his clearly convinced of their guilt in to accomplish by criminal law results selves are not immoral or inherently advice on the "enforcement" prob- each case. which cannot be attained by that dangerous to others. lem, in the year A.D. 104. The crime The Emperor's reply contains a means. Though occasionally used for History is strewn with the wrecks Copyright, 1929, by North American Review Corporation. All rights reserved. blackmailing purposes, most of such of such legislation and shows по [2] [3] THE FARCE OF ENFORCEMENT THE FARCE OF ENFORCEMENT examples of its success, except for a the Fugitive Slave Law. Movements But "enforcement" had no better pose of this Act as follows: "In other limited period, in a restricted area, for "law enforcement" were started success in those years than it has words, neither a State nor an indi- under military control. I have already by leaders in religion, business and today. People in the Northern vidual shall deprive any citizen, on referred to Christianity, which was a the professions. States thought the acts prohibited account of race or color, of the free "bootleg" religion until the ban by the Fugitive Slave Law neither exercise of his right to participate against it was lifted by Constantine AT THE great "Enforcement Meet- wrong nor injurious, and openly in the functions of self-government; in 311 A.D. Other instances are the ing" held in 1850 at New York, violated it. As today, members of and the National Government as- laws against heresy, those against Daniel Webster declared that the Congress privately violated the law sumes the duty to prevent the com- witchcraft, and the numerous 'blue law, though not perfect, was the to which they gave their support in mission of the crime and to correct laws" which still encumber the stat- law of the land and must be enforced. public. I quote from The Anti- the consequences, when committed." ute books of many of the States. "No man", he cried, "has a right to Slavery Crusade by May (Yale Uni- American history furnishes two set up, or to affect to set up, his own versity Press 1920, page 135): "The interesting examples of the failure of conscience as above the law". After Ohio Senator, who, in his lofty IN THE years when the Federal authorities tried to enforce this these efforts, each of which bears a the rescue of a Negro from a United preserve at the Capitol of his coun- law, with the aid, by the way, of the close Constitutional and legal an- States marshal in Boston, President try, could discourse eloquently of Army, the country passed through alogy to the present prohibition Fillmore, on February 18, 1851, his readiness to keep faith with the another era of "law enforcement" situation. issued a proclamation "calling on all South in the matter of the faithful meetings, clogged court calendars, well-disposed citizens to rally to the execution of the Fugitive Slave Law, prosecutions ending nowhere, and a T HE first of these was the effort to support of the laws of this country" became, when at home with his general spirit of lawlessness in those enforce the provisions of the Fed- and addressed a special message to family, a flagrant violator of the parts of the country where the eral Constitution regarding the re- Congress on the subject, in which he law." law was not supported by public turn of fugitive slaves (Article 4, said that, so far as depended on him In the South, of course, where the opinion. Section 2, Paragraph 3). Here we had "the law shall be faithfully exe- law was but the expression of public Since 1878, when President Hayes a Constitutional provision expressly cuted and to this end I am opinion, it worked smoothly and well, withdrew the Army from the South- declared by the Supreme Court to be prepared to exercise, whenever it but the inability of the Federal ern States, no serious effort has been "a fundamental article without the may become necessary, the power Government to enforce it roused the made by the Federal Government to adoption of which the Union could Constitutionally vested in me, to the ire of the slave States. "Worthless", enforce these provisions of its own not have been formed". Prigg V fullest extent". In the case of "impotent", "a nuisance" were Constitution. The brave words of Pennsylvania (16 Pet. [U. S.] 539; Ableman V Booth, (21 How. [U. S.] some of the epithets hurled at the Republican platform of 1876, p. 612). After unavailing efforts to 506) the Supreme Court took a Washington by the law-abiding pledging the party to secure "to secure the enforcement of this Con- hand in the matter, declaring that South. every citizen complete liberty and stitutional provision the question "it is among the first and highest exact equality in the exercise of all was finally thought settled by the duties of a citizen . to yield a adoption of the great Enforcement ready obedience to the law" (page F OLLOWING the Civil War came civil, political and public rights" the second great effort to enforce had, by the year 1928, dwindled to Act of 1850, providing in detail the 525). Both political platforms in 1852 Constitutional provisions by Federal a plank pledging it to discourage machinery and method of its enforce- contained "law enforcement" planks, laws penalizing acts which many con- Negro lynchings! ment by the Federal Courts in strict the Democratic plank declaring: sidered neither wrong nor injurious. And, curiously enough, the most conformity with the Constitution of The Statute, being designed to carry out By the Fourteenth and Fifteenth ardent champion of "law enforce- the United States. The act is known an express provision of the Constitution, Amendments the Negroes were guar- ment" in our decade explicitly ap- in history as "The Fugitive Slave cannot, with fidelity thereto, be repealed or anteed civil and political rights proved the nullification of these Law". so changed as to destroy or impair its equal, in all respects, to those of the Constitutional amendments. Wil- Everything that is said today of efficiency. white inhabitants. The efforts of the liam Jennings Bryan declared in the necessity of obeying the law This declaration was received with Government to secure these rights New York, in 1908, "The white man because it is the law, was said in the such uproarious enthusiasm by the culminated in the statute known as of the South has disfranchised the decade prior to the Civil War in Convention, that it had to be read "The Enforcement Act of 1870". Negro in self-protection; and there is regard to the necessity of supporting twice. Senator Schurz explained the pur- not a Republican in the North who [4] [5] THE FARCE OF ENFORCEMENT THE FARCE OF ENFORCEMENT would not have done the same thing against an outwardly friendly, but before a petit jury of twelve men, and composed of ordinary citizens. Some under the same circumstances". secretly rebellious people. Her fight- a unanimous verdict is necessary to of them buy intoxicants, others ing ability is not increased by heavier a conviction. (U. S. Constitution, drink them whenever they have a "No man bas the right to set up, or armor, larger cannon, additions to Act III and Amendments V and VI.) chance, and still others, who neither affect to set up, bis own conscience as her personnel, or by hoisting more The Sixth Amendment also pro- buy nor drink liquor, have among above the law". flags, though they lessen her manœu- vides that any person accused of a their acquaintances many reputable Looking back through history, vring ability. Once in a while one of crime, shall have other important men and women who do so without would the people who hold this point her great guns goes off, hits the mark, rights among which is the right to being conscious of moral guilt. of view today, have been for Law and a man or woman goes to jail. But "have the Assistance of Counsel for Enforcement" when Christianity was mighty as she is, she is powerless be- his defense". a crime? Would they have been for cause not used for the purpose for Taking advantage of these provi- I juries. They are the bulwarks of HAVE great confidence in these the enforcement of the laws against which she was constructed. sions, promptly after the Jones Law liberty. It was due to the failure heresy and witchcraft? Would they The first thing to do is to get the was approved, I organized - - with of the grand juries to indict and of have denied to America the right to ship into deep water again; that is, several other lawyers in New York - petit juries to convict, that the laws independence? Would they have sent to take the National Government out a committee or group of legal volun- against heresy and witchcraft be- the slave back to his master, or of the shoals of trying to secure an teers. Our purpose was to see that came obsolete long before their shackled the South with Negro dom- ambitious moral reform by the those who, under the Jones Law, eventual repeal. The inability of the ination, supported by military enforcement of a criminal law en- faced loss of citizenship, in addition Federal prosecutors to secure indict- power? I think not. acted by a Government of limited to heavy fines and imprisonment, ments and convictions under "The As Seward replied to Webster, power. When the temperate people should have that legal assistance Enforcement Act of 1870" resulted in "There is a higher law than the are convinced that their objective which they might not otherwise be making the Fourteenth and Fifteenth Constitution". cannot be obtained by Federal penal able to obtain, but which is expressly Amendments impotent to accomplish legislation, no matter how many guaranteed by the Constitution. the results for which they were W HAT is going to happen? More laws they pass or how severe they When a man who, in violating the intended. When in England the laws? Larger appropriations? make them, we will have accom- law, has done no wrong, inflicted no theft of anything of the value of one Heavier penalties? They amount to plished the first step toward a reform injury on another, cannot pay a shilling or over was punishable by nothing. "It is useless", as Calvin of the present conditions. lawyer to defend himself, we supply death, it was the petit juries which Coolidge said, "to attempt to dra- one for him without charge, from secured the repeal of these cruel goon the body when the need is to F ORTUNATELY, the "Jones Law," our list of volunteers. provisions by repeatedly finding that appeal to the soul," and the soul can- placing heavier penalties on cer- the property stolen was not worth not be terrorized into obedience, or tain acts made criminal by the Na- persuaded to it, by the plea that it W ARE not proceeding in oppo- that much, irrespective of how great tional Prohibition Statute, has cre- sition to the Constitution, but its actual value might be. It is re- must uphold the law. As Pliny ated a situation whereby the country in direct conformity with it. Our corded that in one case when exactly pointed out, "persecution may be impressed with the futility of appeal is only to the courts and juries one shilling in currency was stolen, causes a crime to spread." People the whole effort. Raising the penal- established by the Constitution, but the jury found the value to be eleven who are conscious of no moral wrong ties has taken the manufacture, sale we propose to see that the legal and pence penny just under the resent being held in restraint, and and transportation of intoxicants out Constitutional rights of those com- limit, thus cheating the gallows of intelligence revolts at the command of the misdemeanor class and placed mitted to our care are adequately their victim. to consider acts wrong or harmful them in the class with such felonies protected, and in so doing, strike a A fundamental part of the judicial when the common experience of man- as arson and manslaughter in the telling blow at the hypocrisy and system, the jury is a law unto itself, kind proves that they are neither. lower degrees. Under the Federal corruption that masquerade under and gives expression to the opinion The fact is that the Federal Gov- Constitution, as well as under those the name of Prohibition. of the average man on what is right ernment, in Prohibition matters, is of most of the States, persons The grand juries before which and what is wrong. It cannot be like a huge battleship in shallow accused of such serious offenses must these accused individuals come for disciplined for failure to follow the waters, manned by a disloyal crew go through the formality of a grand indictment and the petit juries before guidance of the prosecuting attorney, and engaged in a guerrilla warfare jury indictment, followed by a trial which they must come for trial, are or the suggestions of the court. Few [6] [7] THE FARCE OF ENFORCEMENT juries, I am confident, will deprive a A. Yes, sir. man of his citizenship and place him Q. Trying to make a criminal out of her, in jeopardy of a large fine and a long weren't you? Yes or no? A. Yes, sir. term in prison, when, judged by the common standards of mankind, he Lying and seduction to crime are has done nothing wrong or danger- the preliminaries to a prosecution ous to another. They are fully aware under the Prohibition laws. that "there is a higher law than the "But otherwise," says the prose- Constitution" - the law of humanity cutor, "we could make no arrests." and common sense. They realize True enough, no doubt; but false- that the only reason the defendant hood and inducing another to commit stands before them charged with felony make an incongruous founda- crime is that on one or two occasions tion for what was intended as a great he failed to distinguish between an moral reform; and what is more, the individual like themselves and a spy juries readily grasp that point. in the employ of the Government. The grand jury of Kings County, New York, drawn from the City of F OR, unlike action under most of Churches", petitioned for the repeal the criminal laws, there are prac- of the New York State Enforcement tically no prosecutions in Prohibition Act when it was in effect, on account cases except on manufactured evi- of its corrupting influence. So far no dence. By this I do not mean that similar action on behalf of the the evidence is untrue; but practi- Federal grand juries has been drawn cally always it is the agents of the to my attention, but there are rumors Government who cause the crime to that enforcement officials are not be committed of which they sub- having a happy time with their sequently accuse the defendant. cases before the juries in many parts Moreover, if asked their name and of the country. business, they never tell the truth. With the failure of the grand juries They do not say, "We are spies to indict, or a series of acquittals by employed and financed by the Gov- the petit juries, the Eighteenth ernment to buy liquor from you in Amendment and its "Enforcement order to obtain evidence to convict Acts" will join the Fourteenth and you of a felony"; they pass them- Fifteenth Amendments and the "En- selves off as one of the millions forcement Act of 1870" in our mu- of ordinary thirsty Americans who seum of legal history. They may be merely want a drink. I quote from used intermittently for blackmail, the cross examination of a Govern- but the wholesale hypocrisy and ment spy in a Prohibition case in the corruption that are the necessary by- United States Court for the Southern products of a great effort to secure District of New York. moral reform by criminal law will disappear, and America will even- Q. So you lied to her (the defendant), tually be free to follow the lead of didn't you? A. Yes, sir. other temperate nations in the treat- Q. Most of the stories you told were ment of problems created by the untrue, weren't they? ever existing traffic in intoxicants. [8]

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This is a pamphlet written by Courtlandt Nicoll.

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    "ocrText": "THE\nFARCE OF ENFORCEMENT\nBy COURTLANDT NICOLL\nParallels acts of1850 and 1870/140 15th amendment)\nFugit we Slave haves in North\nReprinted from the\nNORTH AMERICAN REVIEW\nJune, 1929\nfor the\nASSOCIATION AGAINST THE PROHIBITION AMENDMENT\n21 East 40th Street\nNew York\nTHE FARCE OF ENFORCEMENT\nvaluable lesson in humanity to many\nlaws are innocuous. No serious at-\nwho call themselves Christians. After\ntempt to enforce them is made.\ncomplimenting Pliny on his attitude,\nThey lie quietly in the Penal Codes of\nand warning him to pay no attention\nthe several States, to be looked at\nto anonymous accusations, he says,\nlike mottoes on the wall, stating our\n\"They (the Christians) must not be\nmoral ambitions, but not to be taken\nsought after\".\ntoo seriously.\nToday, with our land filled with\nGovernment spies, with its agents\nW\nHEN we try to take them seri-\nprovocateurs, informers and stool\nously and enforce them, as in\nThe Farce of Enforcement\npigeons trying to \"seek after\" and\nthe case of the National Prohibition\nsecure the harsh punishment of those\nAct, the effort brings more evils in\nwho, like the Christians of antiquity,\nits train than the statute was de-\nBy COURTLANDT NICOLL\nhave violated the law but in doing so\nsigned to cure. Sportsmanship, clean\nhave done nothing wrong or danger-\nliving and temperance cannot be\nous to others, how calm and Chris-\nensured by penal statute. The Fed-\ntian seems the advice of the pagan\neral Government was not created to\nT\nHE author, a prominent New York lawyer and former State Senator, played a\nleading part in organizing the much-discussed Committee of Legal Volunteers,\nemperor!\nbe a moral policeman, and the\nwhich offers free legal aid to defendants coming under Senator Wesley L. Jones's\ncriminal law is solely to protect\ndrastic Prohibition enforcement law. This action has been paralleled in other cities,\nE AMERICANS like to see our\nW\nsociety by punishing acts which are\nhas been widely assailed by dry leaders, and has added new fuel to the ever increas-\ning flames of Prohibition controversy. Mr. Nicoll here explains his motives,\nmoral precepts in the criminal\nuniversally condemned as immoral,\nsuggesting that the Jones Law is one of the most effective steps yet taken for the\nlaw. We hang Roosevelt's words,\nor are necessarily dangerous to the\neventual nullification of the Eighteenth Amendment.\n\"Hit the line hard, but play the\nwell-being of another, or of his\ngame fair\", in our boys' rooms and\nproperty. When the Federal Gov-\nthen amend the Penal Law of New\nernment steps out of bounds and\nS\nOON the persecution itself, as is\nto which they refer is Christianity!\nYork to provide that any player on\ntries in an alien sphere to enforce\ngenerally the case, caused the\nThough written so long ago, this\na professional team who throws\" a\nmoral reforms by penal legislation,\ncrime to spread, and it appeared\ncorrespondence is interesting in the\ngame, shall be guilty of a felony.\nit makes a double error, and, conse-\nin new forms.\nFor many of each\nlight of present events. Pliny wants\nSo dear to Heaven is saintly\nquently, a double failure.\nsex and of every age and rank are and\nto know how far he should go in en-\nchastity\": consequently, illicit love\nIn Christian countries at least, the\nwill continue to be suspected. The mis-\nforcing the law. He explains that,\nis made a misdemeanor in Penn-\nmoderate use of intoxicants is not\nchief bas spread, not only through the\nalthough he has inquired into the\nsylvania, and also in New York if\nuniversally condemned as immoral,\ncities, but also through the villages and\nmatter with some care, and has tried\neither party is married. \"Be ye\nnor is it so dangerous to the rights of\nopen country.\nto obtain \"the real truth by putting\ntemperate in all things\" and we have\nothers as to be generally regarded in\nto the torture two maidens, who are\nthe \"Jones Law\" which provides\nthe civilized world as warranting\nFamiliar as they seem, the words\ncalled deaconesses\", he could not\nthat the penalty imposed for each\npenal legislation wholly prohibiting\nquoted above were not taken from\ndiscover that the Christians did\noffense shall be a fine not to exceed\ntraffic in liquor.\nany contemporary report on Prohi-\nanything wrong, and that at worst\n$10,000, or imprisonment not to\nThe Eighteenth Amendment and\nbition conditions. They were written\nthey were but subject to a perverse\nexceed five years, or both.\nthe National Prohibition statute are\neighteen and a quarter centuries ago.\nand excessive superstition\". He\nExcellent as is the purpose of these\nexamples of an effort to stop, by\nThey are extracts from a letter sent\nstates that he was, therefore, most\nstatutes, they completely miss their\npenal law, acts which many people\nby Pliny, Governor of Bithynia, to\nreluctant to punish them, unless\naim because they represent attempts\nwish to commit and which in them-\nthe Emperor Trajan, asking his\nclearly convinced of their guilt in\nto accomplish by criminal law results\nselves are not immoral or inherently\nadvice on the \"enforcement\" prob-\neach case.\nwhich cannot be attained by that\ndangerous to others.\nlem, in the year A.D. 104. The crime\nThe Emperor's reply contains a\nmeans. Though occasionally used for\nHistory is strewn with the wrecks\nCopyright, 1929, by North American Review Corporation. All rights reserved.\nblackmailing purposes, most of such\nof such legislation and shows по\n[2]\n[3]\nTHE FARCE OF ENFORCEMENT\nTHE FARCE OF ENFORCEMENT\nexamples of its success, except for a\nthe Fugitive Slave Law. Movements\nBut \"enforcement\" had no better\npose of this Act as follows: \"In other\nlimited period, in a restricted area,\nfor \"law enforcement\" were started\nsuccess in those years than it has\nwords, neither a State nor an indi-\nunder military control. I have already\nby leaders in religion, business and\ntoday. People in the Northern\nvidual shall deprive any citizen, on\nreferred to Christianity, which was a\nthe professions.\nStates thought the acts prohibited\naccount of race or color, of the free\n\"bootleg\" religion until the ban\nby the Fugitive Slave Law neither\nexercise of his right to participate\nagainst it was lifted by Constantine\nAT THE great \"Enforcement Meet-\nwrong nor injurious, and openly\nin the functions of self-government;\nin 311 A.D. Other instances are the\ning\" held in 1850 at New York,\nviolated it. As today, members of\nand the National Government as-\nlaws against heresy, those against\nDaniel Webster declared that the\nCongress privately violated the law\nsumes the duty to prevent the com-\nwitchcraft, and the numerous 'blue\nlaw, though not perfect, was the\nto which they gave their support in\nmission of the crime and to correct\nlaws\" which still encumber the stat-\nlaw of the land and must be enforced.\npublic. I quote from The Anti-\nthe consequences, when committed.\"\nute books of many of the States.\n\"No man\", he cried, \"has a right to\nSlavery Crusade by May (Yale Uni-\nAmerican history furnishes two\nset up, or to affect to set up, his own\nversity Press 1920, page 135): \"The\ninteresting examples of the failure of\nconscience as above the law\". After\nOhio Senator, who, in his lofty\nIN THE years when the Federal\nauthorities tried to enforce this\nthese efforts, each of which bears a\nthe rescue of a Negro from a United\npreserve at the Capitol of his coun-\nlaw, with the aid, by the way, of the\nclose Constitutional and legal an-\nStates marshal in Boston, President\ntry, could discourse eloquently of\nArmy, the country passed through\nalogy to the present prohibition\nFillmore, on February 18, 1851,\nhis readiness to keep faith with the\nanother era of \"law enforcement\"\nsituation.\nissued a proclamation \"calling on all\nSouth in the matter of the faithful\nmeetings, clogged court calendars,\nwell-disposed citizens to rally to the\nexecution of the Fugitive Slave Law,\nprosecutions ending nowhere, and a\nT\nHE first of these was the effort to\nsupport of the laws of this country\"\nbecame, when at home with his\ngeneral spirit of lawlessness in those\nenforce the provisions of the Fed-\nand addressed a special message to\nfamily, a flagrant violator of the\nparts of the country where the\neral Constitution regarding the re-\nCongress on the subject, in which he\nlaw.\"\nlaw was not supported by public\nturn of fugitive slaves (Article 4,\nsaid that, so far as depended on him\nIn the South, of course, where the\nopinion.\nSection 2, Paragraph 3). Here we had\n\"the law shall be faithfully exe-\nlaw was but the expression of public\nSince 1878, when President Hayes\na Constitutional provision expressly\ncuted\nand to this end I am\nopinion, it worked smoothly and well,\nwithdrew the Army from the South-\ndeclared by the Supreme Court to be\nprepared to exercise, whenever it\nbut the inability of the Federal\nern States, no serious effort has been\n\"a fundamental article without the\nmay become necessary, the power\nGovernment to enforce it roused the\nmade by the Federal Government to\nadoption of which the Union could\nConstitutionally vested in me, to the\nire of the slave States. \"Worthless\",\nenforce these provisions of its own\nnot have been formed\". Prigg V\nfullest extent\". In the case of\n\"impotent\", \"a nuisance\" were\nConstitution. The brave words of\nPennsylvania (16 Pet. [U. S.] 539;\nAbleman V Booth, (21 How. [U. S.]\nsome of the epithets hurled at\nthe Republican platform of 1876,\np. 612). After unavailing efforts to\n506) the Supreme Court took a\nWashington by the law-abiding\npledging the party to secure \"to\nsecure the enforcement of this Con-\nhand in the matter, declaring that\nSouth.\nevery citizen complete liberty and\nstitutional provision the question\n\"it is among the first and highest\nexact equality in the exercise of all\nwas finally thought settled by the\nduties of a citizen\n.\nto yield a\nadoption of the great Enforcement\nready obedience to the law\" (page\nF\nOLLOWING the Civil War came\ncivil, political and public rights\"\nthe second great effort to enforce\nhad, by the year 1928, dwindled to\nAct of 1850, providing in detail the\n525). Both political platforms in 1852\nConstitutional provisions by Federal\na plank pledging it to discourage\nmachinery and method of its enforce-\ncontained \"law enforcement\" planks,\nlaws penalizing acts which many con-\nNegro lynchings!\nment by the Federal Courts in strict\nthe Democratic plank declaring:\nsidered neither wrong nor injurious.\nAnd, curiously enough, the most\nconformity with the Constitution of\nThe Statute, being designed to carry out\nBy the Fourteenth and Fifteenth\nardent champion of \"law enforce-\nthe United States. The act is known\nan express provision of the Constitution,\nAmendments the Negroes were guar-\nment\" in our decade explicitly ap-\nin history as \"The Fugitive Slave\ncannot, with fidelity thereto, be repealed or\nanteed civil and political rights\nproved the nullification of these\nLaw\".\nso changed as to destroy or impair its\nequal, in all respects, to those of the\nConstitutional amendments. Wil-\nEverything that is said today of\nefficiency.\nwhite inhabitants. The efforts of the\nliam Jennings Bryan declared in\nthe necessity of obeying the law\nThis declaration was received with\nGovernment to secure these rights\nNew York, in 1908, \"The white man\nbecause it is the law, was said in the\nsuch uproarious enthusiasm by the\nculminated in the statute known as\nof the South has disfranchised the\ndecade prior to the Civil War in\nConvention, that it had to be read\n\"The Enforcement Act of 1870\".\nNegro in self-protection; and there is\nregard to the necessity of supporting\ntwice.\nSenator Schurz explained the pur-\nnot a Republican in the North who\n[4]\n[5]\nTHE FARCE OF ENFORCEMENT\nTHE FARCE OF ENFORCEMENT\nwould not have done the same thing\nagainst an outwardly friendly, but\nbefore a petit jury of twelve men, and\ncomposed of ordinary citizens. Some\nunder the same circumstances\".\nsecretly rebellious people. Her fight-\na unanimous verdict is necessary to\nof them buy intoxicants, others\ning ability is not increased by heavier\na conviction. (U. S. Constitution,\ndrink them whenever they have a\n\"No man bas the right to set up, or\narmor, larger cannon, additions to\nAct III and Amendments V and VI.)\nchance, and still others, who neither\naffect to set up, bis own conscience as\nher personnel, or by hoisting more\nThe Sixth Amendment also pro-\nbuy nor drink liquor, have among\nabove the law\".\nflags, though they lessen her manœu-\nvides that any person accused of a\ntheir acquaintances many reputable\nLooking back through history,\nvring ability. Once in a while one of\ncrime, shall have other important\nmen and women who do so without\nwould the people who hold this point\nher great guns goes off, hits the mark,\nrights among which is the right to\nbeing conscious of moral guilt.\nof view today, have been for Law\nand a man or woman goes to jail. But\n\"have the Assistance of Counsel for\nEnforcement\" when Christianity was\nmighty as she is, she is powerless be-\nhis defense\".\na crime? Would they have been for\ncause not used for the purpose for\nTaking advantage of these provi-\nI juries. They are the bulwarks of\nHAVE great confidence in these\nthe enforcement of the laws against\nwhich she was constructed.\nsions, promptly after the Jones Law\nliberty. It was due to the failure\nheresy and witchcraft? Would they\nThe first thing to do is to get the\nwas approved, I organized - - with\nof the grand juries to indict and of\nhave denied to America the right to\nship into deep water again; that is,\nseveral other lawyers in New York -\npetit juries to convict, that the laws\nindependence? Would they have sent\nto take the National Government out\na committee or group of legal volun-\nagainst heresy and witchcraft be-\nthe slave back to his master, or\nof the shoals of trying to secure an\nteers. Our purpose was to see that\ncame obsolete long before their\nshackled the South with Negro dom-\nambitious moral reform by the\nthose who, under the Jones Law,\neventual repeal. The inability of the\nination, supported by military\nenforcement of a criminal law en-\nfaced loss of citizenship, in addition\nFederal prosecutors to secure indict-\npower? I think not.\nacted by a Government of limited\nto heavy fines and imprisonment,\nments and convictions under \"The\nAs Seward replied to Webster,\npower. When the temperate people\nshould have that legal assistance\nEnforcement Act of 1870\" resulted in\n\"There is a higher law than the\nare convinced that their objective\nwhich they might not otherwise be\nmaking the Fourteenth and Fifteenth\nConstitution\".\ncannot be obtained by Federal penal\nable to obtain, but which is expressly\nAmendments impotent to accomplish\nlegislation, no matter how many\nguaranteed by the Constitution.\nthe results for which they were\nW\nHAT is going to happen? More\nlaws they pass or how severe they\nWhen a man who, in violating the\nintended. When in England the\nlaws? Larger appropriations?\nmake them, we will have accom-\nlaw, has done no wrong, inflicted no\ntheft of anything of the value of one\nHeavier penalties? They amount to\nplished the first step toward a reform\ninjury on another, cannot pay a\nshilling or over was punishable by\nnothing. \"It is useless\", as Calvin\nof the present conditions.\nlawyer to defend himself, we supply\ndeath, it was the petit juries which\nCoolidge said, \"to attempt to dra-\none for him without charge, from\nsecured the repeal of these cruel\ngoon the body when the need is to\nF\nORTUNATELY, the \"Jones Law,\"\nour list of volunteers.\nprovisions by repeatedly finding that\nappeal to the soul,\" and the soul can-\nplacing heavier penalties on cer-\nthe property stolen was not worth\nnot be terrorized into obedience, or\ntain acts made criminal by the Na-\npersuaded to it, by the plea that it\nW\nARE not proceeding in oppo-\nthat much, irrespective of how great\ntional Prohibition Statute, has cre-\nsition to the Constitution, but\nits actual value might be. It is re-\nmust uphold the law. As Pliny\nated a situation whereby the country\nin direct conformity with it. Our\ncorded that in one case when exactly\npointed out, \"persecution\nmay be impressed with the futility of\nappeal is only to the courts and juries\none shilling in currency was stolen,\ncauses a crime to spread.\" People\nthe whole effort. Raising the penal-\nestablished by the Constitution, but\nthe jury found the value to be eleven\nwho are conscious of no moral wrong\nties has taken the manufacture, sale\nwe propose to see that the legal and\npence penny just under the\nresent being held in restraint, and\nand transportation of intoxicants out\nConstitutional rights of those com-\nlimit, thus cheating the gallows of\nintelligence revolts at the command\nof the misdemeanor class and placed\nmitted to our care are adequately\ntheir victim.\nto consider acts wrong or harmful\nthem in the class with such felonies\nprotected, and in so doing, strike a\nA fundamental part of the judicial\nwhen the common experience of man-\nas arson and manslaughter in the\ntelling blow at the hypocrisy and\nsystem, the jury is a law unto itself,\nkind proves that they are neither.\nlower degrees. Under the Federal\ncorruption that masquerade under\nand gives expression to the opinion\nThe fact is that the Federal Gov-\nConstitution, as well as under those\nthe name of Prohibition.\nof the average man on what is right\nernment, in Prohibition matters, is\nof most of the States, persons\nThe grand juries before which\nand what is wrong. It cannot be\nlike a huge battleship in shallow\naccused of such serious offenses must\nthese accused individuals come for\ndisciplined for failure to follow the\nwaters, manned by a disloyal crew\ngo through the formality of a grand\nindictment and the petit juries before\nguidance of the prosecuting attorney,\nand engaged in a guerrilla warfare\njury indictment, followed by a trial\nwhich they must come for trial, are\nor the suggestions of the court. Few\n[6]\n[7]\nTHE FARCE OF ENFORCEMENT\njuries, I am confident, will deprive a\nA. Yes, sir.\nman of his citizenship and place him\nQ. Trying to make a criminal out of her,\nin jeopardy of a large fine and a long\nweren't you? Yes or no?\nA. Yes, sir.\nterm in prison, when, judged by the\ncommon standards of mankind, he\nLying and seduction to crime are\nhas done nothing wrong or danger-\nthe preliminaries to a prosecution\nous to another. They are fully aware\nunder the Prohibition laws.\nthat \"there is a higher law than the\n\"But otherwise,\" says the prose-\nConstitution\" - the law of humanity\ncutor, \"we could make no arrests.\"\nand common sense. They realize\nTrue enough, no doubt; but false-\nthat the only reason the defendant\nhood and inducing another to commit\nstands before them charged with\nfelony make an incongruous founda-\ncrime is that on one or two occasions\ntion for what was intended as a great\nhe failed to distinguish between an\nmoral reform; and what is more, the\nindividual like themselves and a spy\njuries readily grasp that point.\nin the employ of the Government.\nThe grand jury of Kings County,\nNew York, drawn from the City of\nF\nOR, unlike action under most of\nChurches\", petitioned for the repeal\nthe criminal laws, there are prac-\nof the New York State Enforcement\ntically no prosecutions in Prohibition\nAct when it was in effect, on account\ncases except on manufactured evi-\nof its corrupting influence. So far no\ndence. By this I do not mean that\nsimilar action on behalf of the\nthe evidence is untrue; but practi-\nFederal grand juries has been drawn\ncally always it is the agents of the\nto my attention, but there are rumors\nGovernment who cause the crime to\nthat enforcement officials are not\nbe committed of which they sub-\nhaving a happy time with their\nsequently accuse the defendant.\ncases before the juries in many parts\nMoreover, if asked their name and\nof the country.\nbusiness, they never tell the truth.\nWith the failure of the grand juries\nThey do not say, \"We are spies\nto indict, or a series of acquittals by\nemployed and financed by the Gov-\nthe petit juries, the Eighteenth\nernment to buy liquor from you in\nAmendment and its \"Enforcement\norder to obtain evidence to convict\nActs\" will join the Fourteenth and\nyou of a felony\"; they pass them-\nFifteenth Amendments and the \"En-\nselves off as one of the millions\nforcement Act of 1870\" in our mu-\nof ordinary thirsty Americans who\nseum of legal history. They may be\nmerely want a drink. I quote from\nused intermittently for blackmail,\nthe cross examination of a Govern-\nbut the wholesale hypocrisy and\nment spy in a Prohibition case in the\ncorruption that are the necessary by-\nUnited States Court for the Southern\nproducts of a great effort to secure\nDistrict of New York.\nmoral reform by criminal law will\ndisappear, and America will even-\nQ. So you lied to her (the defendant),\ntually be free to follow the lead of\ndidn't you?\nA. Yes, sir.\nother temperate nations in the treat-\nQ. Most of the stories you told were\nment of problems created by the\nuntrue, weren't they?\never existing traffic in intoxicants.\n[8]"
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