Popular Science Monthly/Volume 38/March 1891/The Tyranny of the State

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THE duties of the individual to society, particularly in the crowded centers of the world, become every day more numerous and burdensome. Thousands of bulky volumes do not suffice to contain the common law, the codes, and the countless decisions under the same on this subject. The taking of human life and the throwing down on the street of a piece of waste paper are alike punishable as crimes. If two or three gather together on the corner of a public highway to discuss the many obligations they owe to the sovereign power, and raise their voices loudly, the state, in the form of a blue-coated officer, orders them off, and, if any objection or answer is made, clubs them to the station-house. Thereupon the state becomes the accuser, the witness, and the judge, and, without an opportunity to be heard or to call witnesses in defense, the offenders are held to await trial. Should any one become disgusted with his duties as a citizen and attempt to end his misery, if caught in time, he may be punished as an abandoned criminal.

Amid this never-ending round of obligations the nature and limits of the authority that imposes them is a question seldom stated, yet it must be recognized as one of vast importance to mankind. The axiom that the people do not need to limit their power over themselves has been used to quiet all complaints, and the patients have gradually become stupefied by their own wisdom. There would seem to be an ever-increasing inclination on the part of the state to unduly stretch its rights over the individual both by careless legislation and by indifference to its solemn obligations.

It is true, that to read the Scriptures in English or to speak against the Prayer-book is no longer a capital offense, nor are innocent old ladies executed at Salem for witchcraft; but personal liberty and the rights of property are constantly violated, and the citizen is utterly without redress. The comfort administered in monarchies to those who complained on this score was that the king could do no wrong; but a few years ago the Supreme Court of the United States declared that this doctrine had no place in American jurisprudence. This enunciation of a democratic feeling was, however, mere emptiness; for, in other cases before the same tribunal, it has been held as axiomatical that the sovereign power is free from all legal duties. Law, it is said, is a rule of action laid down by a superior; and the state can not be said to be in subordination to itself, excepting so far as it may choose to part with its sovereignty.

For many years the only redress against the United States for wrongs done by it was by bringing the injuries to the attention of Congress. Latterly the Court of Claims has been established, but has jurisdiction only to hear cases that arise out of contracts made within six years from the time suit is brought. For those older than this for all sorts and the vast variety of claims that may arise, other than for mere money demands the sole redress is still before the legislative body. It would take a series of volumes almost as great as those containing the duties of the individual to the state to recount the tales of robbery and outrage on the part of the national Government that appear in the appeals for justice now on record at Washington. Had these same acts been committed by private bodies, the united wrath of the people would have exterminated the offenders.

For goods or lands wrongfully taken by the officers of the United States, although, absolutely necessary for the support of the sovereign power, there is no liability; and if the claim is on contract, it must be shown to have been made with an officer authorized by statute to enter into the particular agreement. Although the claimant has been wrongfully kept out of his own for years, and finally recovers a judgment, the United States calmly tells him that it never pays interest on its debts (United States vs. Bayard, 127 United States Reports, 251); yet if it has a claim against a citizen who is insolvent it demands every dollar of it, with interest, before any other creditor can be allowed a cent (Brent vs. Baule, 10 Peters, 596). An action of ejectment for land taken by the Government will not lie. The officers who committed the act may be liable, but a judgment against them does not bind their principal (Carr vs. United States, 98 United States Reports, 433). The States are prohibited from passing any laws impairing the obligations of contracts, but the United States still reserves the power to itself of doing such wrongs (Evans vs. Eaton, Peters C. C, 323). The contracts with the Indian tribes are sad examples of this fact. Treaty after treaty of the most solemn kind, founded upon considerations of money and the deepest morals, has been violated with as much indifference as a man would brush a fly from his body. So the Supreme Court of the United States has declared that, notwithstanding the prohibition on the States, they may violate those contracts at will that they have made with the citizen, or by laws framed to protect his health, morals, education, good order, or the public safety. The elasticity of these words, as stretched by the judges, is greater than any lexicographer could have supposed them capable of. The injustice is not so much in the decisions on this point, however, as in the results—not so much in the wrongs done to the individual, that are often necessary—but in the failure of the state to provide any compensation for the injuries.

For example, the various prohibitory or high license laws have had the direct effect, in countless instances, of taking the property of the individual and wrecking his life and business, yet leave him without redress. It has happened innumerable times that men who have spent enormous sums in enterprises connected with the manufacture and sale of liquor, in States which by their laws encouraged them, have been deprived of every dollar by subsequent legislation. In Pennsylvania, under the recent license act, property to the value of millions of dollars was destroyed, the future of many good citizens was ruined, and some were driven insane and committed suicide. These were engaged in a traffic made lawful by the State laws, and in many instances there was not a word of complaint as to the moral character of the applicants. The Supreme Court of the United States has sustained such, enactments on the ground that they are an exercise of police power, of the correctness of which, except in extreme instances, the State is the sole judge (Light Company vs. Heat Company, 115 United States, 650). To such an extent has this ruling been carried, that an act under which the sheriff was authorized to take possession of and destroy the contents of all liquor establishments, without making compensation, was held constitutional (Mugler vs. Kansas, 123 United States, 623).

There are bigots who will claim that this is a proper punishment for those who have been wicked enough to sell intoxicating liquors. These we refer to a late decision of the United States Supreme Court, arising under a statute of Pennsylvania in regard to oleomargarine (Powell vs. Pennsylvania, 127 United States, 678). In this case a citizen, a Mr. Powell, upon the faith of the two acts of Assembly that recognized the right to manufacture and sell oleomargarine, if properly stamped, spent a large sum of money in the erection of a factory. Subsequently another law was passed making it a misdemeanor to manufacture or sell such, goods in any form. It was admitted that the food was perfectly healthful, cheaper than regular butter, and that it had been stamped as required by the earlier acts of Assembly. Despite this, the conviction of the citizen was sustained on the ground that the act was within the police power of the Commonwealth. It was held that it might be made a crime to sell any of the goods, because, if improperly manufactured, they would be injurious. As Justice Field, in a long dissenting opinion pointed out, almost every article of food on like grounds might thus be prohibited.

Could a greater outrage have been inflicted on a citizen? The State passes laws that provide for the manufacture and sale of a commodity; then, after the business has been established, makes the citizen a criminal who put his capital into it at its invitation. To produce a cheap, wholesome food would seem to be deserving of commendation rather than a prison cell. It is not necessary to read the dissenting opinion to be convinced that such a statute deprives the citizen of life, liberty, and property without due process of law. What should be said of a private person or corporation that committed the crime of inducing another, by false promises, to invest his all in a business acknowledged to be beneficial to mankind, and then deprived him of it and put him in jail?

To multiply cases on this point would be to detail outrages. The ruin that has been brought upon countless thousands can never be fully told. The power of the Government on such questions may be admitted to be absolute and necessary for control and good order; but, even so, the few should not be made to bear the burdens of the many without compensation.

The right of taking private property for public use is an incident to the sovereignty of every government; eminent domain, or inherent sovereign power, gives this control to the legislature—the interest of the public is deemed paramount to the individual, but the obliation is concomitant that in the exercise of the right full compensation shall be made. This is a fundamental doctrine, founded on national equity and a principle of universal law. As we have seen, however, there is a distinction made between property taken by right of eminent domain and that taken under the police power. In the former case just compensation must be made, in the latter none, although the act prohibited may have been lawful under previous statutes. There would seem to be no just reason for this difference. In either case the individual suffers for the benefit of the state. Indeed, in the exercise of the latter power the injury is often greater, in that it is unexpected, and hence can not be provided against.

Again, in the case of a contract made by a State directly with her citizens, as in the issue of bonds for the raising of revenue, there being no remedy by a suit against the State, the contract is substantially without sanction except that which arises out of the honor and good faith of the State itself, and these are not subject to coercion (Louisiana vs. Jumel, 17 Otto, 711). And although the State may, at the inception of the contract, have consented as one of its conditions to subject itself to suit, it may subsequently withdraw that consent and resume its original immunity without a violation of the obligation of its contract in the constitutional sense. Thus the State of Louisiana entered into certain engagements with her creditors; she embodied them in the most solemn form in her statutes and in her organic law; she provided for the levying of a tax to pay them; she prescribed certain duties for designated officers to perform in their collection and disbursement; she declared that no further legislation should be necessary for the collection of a tax or the appropriation of the proceeds, and that for the collection of the tax the judicial power should be exercised whenever necessary. In spite of all these seeming obligations and safeguards the Supreme Court, by a divided bench, decided that there was no power to stay repudiation. Substantially the same decree was made in the Virginia tax cases (exparte Ayres, 123 United States, 443). In these instances the States, after entering into the most solemn obligations with their citizens, deliberately and openly violated every principle of honor and good faith. To say nothing of the infamous wrongs inflicted, the influence of such actions on the morals of the people must be widespread.

The complications arising under the divorce laws of the various States have been dwelt upon at length of late by various writers, and a full discussion of the subject here is unnecessary. Attention, however, may be called to the fact that a citizen who fails to observe the nice distinction laid down may find himself a vile criminal, with illegitimate children, because he failed, when the marriage ceremony was performed, to cross a river or step over a border line. This neglect of uniformity is a crime on the part of society toward its members that in this age of the world should not be tolerated.

Again, take the instance of a man accused by the state of crime who is innocent. All the power of the social body is exerted to make him out a criminal. He is put to enormous expense in the employment of counsel, the obtaining of evidence, and all the incidental expenses of a trial; his business may be broken up, and his hopes and happiness in life wrecked. Yet, even if he is proved innocent, the whole burden falls on him, for the state makes no compensation for mistakes. At the last session of the American Bar Association a resolution looking to the correction of this evil was presented and referred to a committee, and it is to be hoped that the influence of this body may not be without effect. The forms of verdicts should be modified so as to express fully and distinctly the guilt or innocence of the accused, and in cases where it is clear that the defendant is entirely without blame, he should be compensated for the wrong done him.

If the citizen is convicted of crime, what shall be said of his treatment? He is looked upon as one who has run contrary to the currents of society and involved it in disorder; yet, truly, he is rather an index of the civilization that holds him. He has fallen, not because he was worse than his fellows, but because bad influences surrounded his weaknesses. Between those who are out and those who are in there is often no more than the thickness of the prison doors. But the fact that a criminal who is caught is safely confined is deemed enough; his reform is a matter to which the state pays but small attention. How little has been done the records speak. In some places the unfortunates are bound in chain-gangs and hired out as slaves; in others, they are driven insane by solitary confinement; and, again, the young and innocent are herded with vicious age. For these wards of the state, for whose condition it is largely responsible, there is seldom any effort at improvement. Yet the thoughtful man will find in the study of criminals and their ways the courses of crime, and a partial solution of the problems of social disorder. There should be an opportunity given them to work out their freedom under conditions more hopeful than those found in the confinements of our prisons.

Almost all the States have provided in their Constitutions that no human authority shall interfere with the rights of conscience. Yet no citizen will be allowed to give evidence in a court of justice who does not profess belief in a God and a future state. The result of this is that infidels may be looked upon as outlaws, and, if the conviction of a robber depends on their testimony, he may go free. This rule admits the evidence of those atheists who deny their faith, and excludes those who are brave enough to openly affirm it. A citizen's safety, rights, and property may thus be made to depend upon his belief. What rational man would not willingly believe the testimony of Huxley, Spencer, or Ingersoll on questions involving rights between themselves and other men? Yet these, under our free government, might be challenged as witnesses on religious ground, and thus deprived of the protection of the state.

By the Constitution of the United States all citizens are to be protected against all unlawful searches and seizures; but these rights are continually violated, without redress, by the action of brutal and ignorant officers who, without authority, make police raids and do irreparable injury to innocent men.

Space will not permit of the further recital of offenses, but what has been said will show clearly that the state has done acts that are as deserving of the name of crime as anything committed by the citizen; and, further, that we have drifted into a passive condition of assent to the doctrine that "we, the people" can do no wrong. The effect on the community of the ills that have been set forth is demoralizing, and weakens the stability of the state as a body.

The principal question of human affairs must ever be the proper adjustment of the rights of the individual as against society. The value of existence to the citizen depends upon the restraints placed on the actions of other people. Yet looking at the subject in its widest sense, how little has been done! The influence of custom is so great that the rules laid down by the superior power appear self-justifying. The struggle between liberty and authority—the man and the tyrant—has given place to a more representative government; but success in politics, as in persons, sometimes brings with it infirmities, and popular control may perpetuate in other forms the wrongs of despots long gone.

The question is not new. In some form or other it has been before mankind from the remotest ages. The law that the king could do no wrong has been declared inapplicable to our republican government. But in the monarch's place appears the hydra-headed tyrant—the state. The authority of this body, more dangerous than the power of the king, presents itself under new conditions that require deep consideration and fundamental treatment.

The remedy for many of the troubles is extremely simple. Let the state be the subject of suit in all cases where it has injured its citizens by acts which would come within the cognizance of laws between individuals; let twelve men adjust the differences between the one who has suffered for the good of the many and the corporate body that represents the public. This is done in all cases where property is taken by corporations created by the state, and there is no reason to prevent the application of the same rules to the principal as is applied to the agents. The time has gone by for the invoking of ancient doctrines at the expense of the liberty and the justice due to the citizen.

Despite the fanciful theories of the new school of political economists, the strong force of personal impulses and preferences are the mainsprings from which the advancement of the world takes its movement. The protection of the freedom and rights of the individual against the power of the state is as important as that society shall be protected against him, and any system of laws or social science that ignores this fact is certain to retard the cause of progressive government.