MORAL LAW
AND
CIVIL LAW
PARTS OF THE SAME THING
BY ELI F. RITTER
NEW YORK: HUNT & EATON
CINCINNATI : CRANSTON & CURTS
1896
Copyright by
HUNT & EATON,
1896.
Composition, electrotyping,
printing, and binding by
HUNT & EATON,
150 Fifth Ave., New York.
PREFACE.
ABOUT twenty years ago, in an impor-
tant trial in the city of Indianapolis,
it was sought to break down the very
strong testimony of a witness by showing
that the general moral character of the
witness was bad. It was not an attack
upon the general reputation of the witness
for truthfulness and veracity, but the in-
quiry was directed to the general moral
character of the witness. About the same
time, in another case in the same court,
upon the application of a man to be admit-
ted to the bar, a question was raised upon
his moral character. A few weeks later, in
another case, in another court, in the same
courthouse, upon an application of a man
for a license to sell intoxicating liquors, an
issue was made upon his moral character.
In each of these cases witnesses testified on
270455
>'••*'• PREFACE.
each side of the question. In each wit-
nesses who testified to the good moral
character of an individual on cross-exami-
nation specified truthfulness, honesty, and
some other elements of morality which
were characteristic of the individual, but
admitted defects in some of the moral
elements of good character, while wit-
nesses who testified to the bad moral
character on cross-examination specified
defects in the moral character of the indi-
vidual and immorality in certain regards in
support of a general statement of bad
moral character. And another case was a
suit on a promissory note in which a de-
fense was successfully made that the note
was given for an immoral and hence
illegal consideration. I was, at the time
when these cases were tried, a young
practitioner at the bar. I was very deeply
impressed in each case by the apparent
uncertainty in the minds of witnesses as to
what is meant in the law by moral charac-
ter and morality ; not only the uncertainty
in the minds of witnesses in these regards,
PREFACE. 5
but also the manifest uncertainty in the
minds of attorneys and judges in the same
regard. On account of these exhibitions of
uncertainty I became greatly confused in
my own mind upon this subject. Lawyers
and judges in each of these cases undertook
to explain to witnesses what was meant by
moral character and morality, and in doing
so made it very clear that they had no
more definite ideas upon the subject than
the witnesses had. From my experience
in the practice of law and other business
and social relations since the trial of the
cases to which I have referred, having seen
the same questions often arise in the trial
of cases in court, I have become satisfied
that the general public has no definite idea,
neither is there generally a clear under-
standing among lawyers and judges, as to
the meaning of ''morality/' "moral char-
acter, "and " immorality" in legal contem-
plation. Truthfulness, or business honesty,
or generosity, in fact, every other term
that is used in speaking of the characteris-
tics of individuals, seems to be quite well
6 PREFACE.
understood. Judges, lawyers, witnesses,
and the public generally can deal with
these terms with confidence in their under-
standing, but when the question of legal
morality is raised the minds of all at once
become clouded. The question as to what
is meant by the terms " morality/' or
"moral character," or "immorality," is
generally settled upon an assumed moral
standard in a particular locality or the pecul-
iar views of each individual. The impres-
sion seems to largely prevail that this ques-
tion may be settled by adding up the good
qualities in one column, the bad in another,
and striking a balance. This is a very
dangerous process. I have known men of
many most excellent qualities, but in one
respect almost, or quite, totally depraved.
Their good qualities were used to give
them greater influence in the line of their
depravity.
There seems to be a fair degree of cer-
tainty in the public mind generally as to
the meaning of Christianity or Christian
morality. The great uncertainty in the
PREFACE. 7
meaning of these terms arises when they
are used in legal contemplation. As moral-
ity and moral character are terms in very
prominent and constant use in judicial
proceedings, they must have some definite
meaning, and there must be some way of
determining definitely what they do mean.
The purpose of this book is to aid in set-
tling these questions. I claim no new dis-
covery in the meaning of terms, and what
I should appreciate as the highest compli-
ment that could be paid to this work would
be to have it proved that what is claimed by
the author for the legal contemplation of
morality has been a settled question for a
great many years.
If I can succeed in calling attention to and
aid in the correction of errors in the com-
prehension and application of, this term,
and aid in arousing sentiment in support of
morality in the fundamental position it
occupies in civil affairs, I shall have accom-
plished my purpose and feel gratified. I
have not undertaken to give exhaustive
consideration to the subjects considered,
8 PREFACE.
but to present and support them in the
briefest possible way that I could do, put-
ting the reader upon a line of investigation
which can be pursued to great extent and
profit. ELI F. RITTER.
Indianapolis, February 4, 1896.
CONTENTS.
CHAPTER I.
Law of Public Necessity 1 1
CHAPTER II.
Morality is a Fundamental Principle in Civil Gov-
ernment 24
CHAPTER III.
What is Morality ? 47
CHAPTER IV.
What is Immorality ? 66
CHAPTER V.
Legislation and Morality 77
CHAPTER VI.
Common Law and Morality 85
CHAPTER VII.
Morality in Civil Courts 89
CHAPTER VIII.
The Law Grows 101
CHAPTER IX.
Evil Must Be Suppressed and Good Promoted 138
CHAPTER X.
No Privileges for Evil . . 166
MORAL LAW AND CIVIL LAW
PARTS OF THE SAME THING.
CHAPTER I.
LAW OF PUBLIC NECESSITY.
THERE is a law now in full force in every
State in this Union, in the govern-
ment of the United States, and in every
government in the world, that was hoary
with the frosts of centuries when Moses
bared his feet in the presence of the burn-
ing bush, and that has ever since been the
fundamental law in every government of the
world. If you were to ask me for the book
and page where this great law, with its full
scope and specific provisions, might be
found, I should not, neither would any other
lawyer, be able to give them to you. I refer
to the law of public necessity. This is not
only an important law, but it is the supreme
law of every government and every land.
This law was defined and given its position
in the Roman government before the begin-
12 MORAL LAW AND CIVIL LAW
ning of the Christian era in the following
maxim, " Salus Populi Suprema Lex" which
is translated to-day into the English lan-
guage by the expression, "The Public Wel-
fare is the Supreme Law." While I may
not be able to give you the scope and spe-
cific provisions of this law, I may aid the
reader in gaining fuller comprehension of
the same by a few illustrations.
When the city of Chicago was on fire in
1871 and had been for nearly two days, and
the city government had become exhausted
in its efforts to repress the flames and had
acknowledged its defeat, and the State of
Illinois stood paralyzed in the presence of
the fire king, General Sheridan was placed
in command, and became substantially the
only governing force for the time being in
that locality. General Sheridan was the
man to meet the demands of an emergency.
He did not stop to ask the lawyer of Chi-
cago what he could do, nor the business men
what was expected of him. He proceeded
to do what the necessity of the occasion re-
quired. He placed powder in the basements
of a row of buildings two squares long, and
at a given signal blew up and utterly de-
stroyed the buildings, with their contents.
PARTS OF THE SAME THING. 13
Those buildings and their contents were
private property. Individuals held the title-
The owners were not asked to consent, and
their objections were unheeded. Their
property was destroyed, and there was no
provision of law by which any compensation
could be recovered. This action was author-
ized and justified by the law of public neces-
sity.
A few years ago a railroad train, loaded
with passengers, leaving a Southern city,
was stopped in a rural locality, run on to a
switch, and compelled to stand still for two
weeks without allowing any passenger to
leave. This interference with the rights of
the passengers, and their imprisonment, was
justified under a public necessity to prevent
the spread of yellow fever.
A few years ago officers of the law went
to the residence of a prominent citizen of
Philadelphia, and informed him that they
were ordered to convey his wife to the pest-
house because she was afflicted with small-
pox. He did not consent, claiming that he
had made ample provision for her care and
the prevention of any public hazard on ac-
count of her disease. Regardless of his re-
sistance, his wife was taken out of bed by
2
14 MORAL LAW AND CIVIL LAW
force, and carried away to the pest hospital.
The husband followed the ambulance to the
door of the hospital and asked to be ad-
mitted, that he might be with his wife in
her sickness, but he was refused. That
man's wife died — he never knew when — and
was buried — he never knew where . If there
is any right among men more sacred than
all others, it is the right to be with and care
for members of our own families in time of
sickness, to stand by them in the hour of
death, and to bury them in a place selected
by us for that purpose, where the last rest-
ing place may be marked and visited. Yet
that most sacred of all rights has not a
feather's weight when it conies in conflict
with the law of public necessity.
In 1863 the government of the United
States needed men for military duty. A
draft was ordered in Indiana to meet the
emergency, and to add to the thousands of
her sons who were already in the field as
volunteers. Among those who were drafted
was a poor man in southern Indiana. When
notified, he said: " Surely the government
will not make me leave my feeble wife and
three little children and go into the army.
I have no way of providing for them while
PARTS OF THE SAME THING. 15
I am gone, and I have no money to hire a
substitute." However touching such an
appeal might be, it could not be regarded.
He was compelled to leave that family
mainly to the care of neighbors, was forced
into the army and on to the field of battle.
At night, after the first day of that bloody
battle of Chickamauga, among the dead
bodies brought together was found the
mangled and lifeless body of the poor con-
script. As his comrades looked into the
glassy eyes and pallid face, and thought of
the poor, sick wife and little children in
their helpless condition, they said, ' ' It was a
hard thing that the government required of
this poor man." But when the government
has battles to fight, neither inconvenience,
personal hazard, nor the needs of a family
can excuse any man from its call to arms.
A citizen of Indianapolis a few years ago,
who possessed all the privileges and rights
that any other citizen in the city possessed,
was suddenly arrested, tried, convicted, con-
demned, and on a day fixed for that purpose
was compelled to ascend a scaffold, a rope
was adjusted about his neck, his hands and
feet were tied, the platform on which he
stood was sprung, and he was strangled to
1 6 MORAL LAW AND CIVIL LAW
death. While the lifeless body of that man
hung suspended between the heavens and
the earth, an opportunity was offered to
philosophize on the rights of an individual.
An execution was issued upon the judgment
rendered in his case, for costs, and every
dollar's worth of property he had in the
world was sold, and the proceeds applied to
pay the expenses of the judicial proceedings
that ended with the taking of his life. He
had been deprived of all his rights of prop-
erty, liberty, the pursuit of happiness, and
life itself. All this because he had violated
a law of public necessity, made in the inter-
est and for the protection of society. It is
true this proceeding was under a statute,
yet such a proceeding would have been law-
ful if there had been no statute, being
authorized by the common law of every
government, and existed in the day when
Haman was hanged by order of Ahasuerus.
The officers of the law may enter my
house, and analyze the water in my well,
and say to me that the water has in it the
germs of disease, and that I must not use it
— neither myself nor my family — nor permit
anyone else to use it. I may answer : ' ' This
is my property ; I had that well dug ; we
PARTS OF THE SAME THING. 17
have used that water for twelve years. I
like it, and this is a free country." Never-
theless, if I disregard the injunction, I may
be arrested, fined, and imprisoned, and that
well — that poison fountain — filled to the
brim to prevent the spread of disease, and
I may be compelled to pay the expenses of
all these proceedings. They may examine
the milk in the pantry, and destroy it .be-
cause it is unhealthful. All this is under
the law of public necessity, to prevent the
spread of disease. There will be no conflict
upon the proposition, that anyone with his
whole family may be absolutely restrained
from using food, milk, or drinking water
that is unhealthful. When the question is
settled that a food or a fluid is unhealthful
the law of public necessity asserts that it
shall not be used. It would not be difficult
to find illustrations of this principle in
every State and in every government. The
law of public necessity is only limited by
the necessity itself. Whatever the pub-
lic necessity requires to be done can be
legally done anywhere. It is not conceiv-
able that there should be a public neces-
sity and no law to meet it, and the public
be thereby left helpless. It can be readily
1 8 MORAL LAW AND CIVIL LAW
seen that no individual can assert a personal
right against the law of public necessity.
There is no such thing, and never was, as an
absolute individual right to do any particular
thing, or to eat or drink any particular thing,
or to enjoy the associations and bliss of one's own
family, or to live, in conflict with the law of
public necessity.
The law of public necessity demands that
everything which it requires to be done
shall be done. It also, with the same au-
thority, commands that everything which it
requires not to be done shall not be done.
I present another phase of this law by illus-
trations. Sees. 4569 and 4570, revised stat-
utes of the United States, applying to every
vessel that flies the flag and claims the pro-
tection of this government, read as follows :
Sec. 4569. "Every vessel belonging to a
citizen of the United States, bound from a
port in the United States to any foreign
port, or being of the burden of seventy-five
tons or upward, and bound from a port on
the Atlantic to a port on the Pacific, or vice
versd, shall be provided with a chest of medi-
cines ; and every sailing vessel bound on a
voyage across the Atlantic or Pacific Ocean,
or around Cape Horn, or the Cape of Good
PARTS OF THE SAME THING. 19
Hope, or engaged in the whale or other fish-
eries, or in sealing, shall be provided with,
and cause to be kept, a sufficient quantity of
lime or lemon juice, and also sugar and
vinegar, and other antiscorbutics, to be
served out to every seaman as follows : The
master of every such vessel will serve the
lime or lemon juice, and sugar and vinegar,
to the crew within ten days after the salt
provisions mainly have been served out to
the crew, and as long afterward as such
consumption of salt provisions continues;
the lime or lemon juice and sugar daily at
the rate of half an ounce each per day ; and
the vinegar weekly at the rate of half a pint
per week for each member of the crew."
Sec. 4570. " If on any such vessel, such
medicines, medical stores, lime or lemon
juice, or other articles, sugar and vine-
gar, as are required by the preceding sec-
tion, are not provided and kept on board
as required, the master or owner shall be
liable to a penalty of not more than five
hundred dollars; and if the master of any
such vessel neglects to serve out the lime or
lemon juice, and sugar and vinegar, in the
case and manner directed, he shall for each
such offense be liable to a penalty of not
20 MORAL LAW AND CIVIL LAW
more than one hundred dollars ; and if any
master is convicted for either of the offenses
mentioned in this section, and it appears
that the offense is owing to the default of
the owner, such master may recover the
amount of such penalty, and the costs in-
curred by him, from the owner."
It will be readily seen that these sections
require that the supplies therein named shall
be provided, and issued, and used.
This law has been enforced, and convic-
tions and penalties adjudged under it, in a
number of cases. About three years ago
the captain of a vessel was brought before
the United States Court in San Francisco,
charged with failing to issue lime juice, of
which he had a supply, upon a voyage just
ended. He answered, admitting the charge,
but saying that the men had asked for an
extra ration of coffee instead of lime juice,
and as he saw no necessity for the lime juice,
he yielded to the wishes of the men. The
court held that the officer was not made the
judge of the necessity for issuing the lime
juice ; the law was peremptory, and it must
be obeyed ; and the officer was fined. How-
ever, as he had acted from good intention,
his fine was merely nominal.
PARTS OF THE SAME THING. 21
The legal question has been settled in
this country, that any government, having
jurisdiction, may require children or adults
to submit to vaccination in order to prevent
the spread of smallpox.
If the government of the United States,
for the protection of the community on a
great steamer that numbers its crew by the
hundreds and its passengers by the thou-
sands, or the little whaler that has a few
persons on board, may require that lime
juice, onions, or other specific shall be pro-
vided and used to meet the needs of, and to
protect, such community on the high seas,
and a government may require vaccination
for like purpose on the land, then the United
States government, or any other govern-
ment, may make the same, or any, provisions
and requirements for such communities on
the land as public necessity may require in
any case. Upon these illustrations I pre-
sent the proposition, that there is no individual
rigJit to refuse to eat, or to drink, or to do any
particular tiling, or all things, that the public
necessity may require.
We citizens may as well get ourselves in
readiness to abstain from eating food, drink-
ing water or milk, or any other fluid, or from
22 MORAL LAW AND CIVIL LAW
doing any and every thing that may be con-
demned by public necessity ; and also hold
ourselves in readiness to drink lime juice,
eat onions, or any other specific, or do any-
thing that may be required of us by the law
of public necessity.
In Town of Lake View vs. Rose Hill
Cemetery Co., the Supreme Court of Illinois
defined the police power to be : ' ' The law
of overruling necessity." 70 111., R. 191.
This brief definition of police power is
fully sustained by authority.
Some one may say that if these propo-
sitions of law are correct, then civil govern-
ment, at best, is legalized tyranny. Let us
not misapprehend the effect of these propo-
sitions ; let us bear in mind that the govern-
ment must seek to promote the public wel-
fare. In so doing, hardships may sometimes
come to the innocent, and of necessity
transgressors must be treated as outlaws, and
pursued with relentless justice, that civil
government, public health, public peace,
morality, and good order may be protected ;
that the weak may be sheltered from the
oppressor; that good citizenship may be
encouraged and bad citizenship suppressed.
In this chapter I have been endeavoring
PARTS OF THE SAME THING. 23
to present the rigid rules and extreme re-
quirements of the law of public necessity.
I have done this to meet the prating on per-
sonal liberty and individual rights so com-
mon in the mouths of American citizens
with foreign ideas, and of political dema-
gogues for personal ends. It is remarkable
and amazing that these classes of persons
have had such influence as to secure large
acquiescence in their claims, and such hesi-
tancy in exposing their fallacies. It should be
borne in mind that rules of law are founded
on the same principle as the yardstick, the
bushel measure, and scales. It may be a
great restraint sometimes on personal liberty
and individual rights to give thirty-six
inches for a yard, full measure for a bushel,
twelve or sixteen ounces for a pound, or to
regard the golden rule as a citizen, but the
requirement and the obligation cannot yield
to accommodate the ignorance, whim, or vice
of the individual. The observance of these
things is the pleasure of the honest man and
the good citizen. The intelligent and the
patriotic man will not be misled by false state-
ments as to facts, nor fallacious arguments,
nor expect good results from the application
of false principles.
24 MORAL LAW AND CIVIL LAW
CHAPTER II.
MORALITY IS A FUNDAMENTAL PRINCIPLE IN
CIVIL GOVERNMENT.
1HAVE attempted to show in the former
chapter that public necessity is law. If
there were no necessity for law there
would be no law. This is true both as to
moral and civil law. The term, civil law,
is used for convenience, intending thereby
in this work to comprehend civil and crim-
inal law under the same head. There is no
place nor condition where moral law does
not obtain, and there is no place nor con-
dition where the duty is to civil law only.
The greatest object and purpose of civil gov-
ernment under our civilization is to pro-
mote and enforce good morals in the trans-
actions and relations of its citizens. In
carrying out the necessities of government
and working out the principles of public
necessity, morality is made a fundamental
principle. Upon this proposition I quote
the constitutional provisions that have been
adopted by many of the States of the United
States.
PARTS OF THE SAME THING. 25
In the Constitution of Indiana, 1851, Art.
8, Sec. i, is as follows:
" Knowledge and learning generally dif-
fused throughout a community being es-
sential to the preservation of free govern-
ment, it shall be the duty of the General
Assembly to encourage, by all suitable
means, moral, intellectual, scientific, and
agricultural improvements, and to provide
by law for a general and uniform system
of common schools, where tuition shall be
without charge and equally open to all."
Arkansas. Art. 2, Sec. 25, Constitution
1874:
"Religion, morality, and knowledge be-
ing essential to good government, the Gen-
eral Assembly shall enact suitable laws to
protect every religious denomination in the
peaceable enjoyment of its own mode of
public worship."
California. Art. 9, Sec. i, Constitution
1879:
' 'A general diffusion of knowledge and in-
telligence being essential to the preservation
of the rights and liberties of the people, the
Legislature shall encourage by all suitable
means the promotion of intellectual, scien-
tific, moral, and agricultural improvements."
26 MORAL LAW AND CIVIL LAW
Connecticut. Art. 7, Sec. i, Constitution
1818:
' ' It being the duty of all men to wor-
ship the Supreme Being, the great Creator
and Preserver of the universe, and their
right to render that worship in the mode
most consistent with the dictates of their
consciences, no person shall by law be com-
pelled to join or support," etc.
North Dakota. Art. 8, Sec. 147, Consti-
tution 1869:
" A high degree of intelligence, patriot-
ism, integrity, and morality on the part of
every voter in a government by the people
being necessary in order to secure the con-
tinuance of that government and the pros-
perity and happiness of the people, the
Legislative Assembly shall make provision
for the establishment and maintenance of a
system of public schools which shall be
opened to all children of the State of North
Dakota, and free from sectarian control."
Sec. 149: "In all schools instruction
shall be given as far as practicable in those
branches of knowledge that tend to impress
upon the mind the vital importance of truth-
fulness, temperance, purity, public spirit,
and respect for honest labor of every kind."
PARTS OF THE SAME THING. 27
Delaware. Art. i, Sec. i, Constitution
1831:
" Although it is the duty of all men fre-
quently to assemble together for the public
worship of the Author of the universe, and
piety and morality, on which the prosperity
of communities depends, are thereby pro-
moted, yet no man shall or ought to be com-
pelled to attend any religious worship, to
contribute against his own free will and
consent."
Florida. Sec. 5, Declaration of Rights,
Constitution 1885 :
" The free exercise and enjoyment of re-
ligious professions and worship shall for-
ever be allowed in this State, and no person
shall be rendered incompetent as a witness
on account of his religious opinions ; but the
liberty of conscience hereby secured shall
not be so construed as to justify licentious-
ness or practices subversive of, or incon-
sistent with, the peace or moral safety of the
State or society."
Kansas. Art. 6, Sec. 2, Constitution 1859 :
' ' The Legislature shall encourage the pro-
motion of intellectual, moral, scientific, and
agricultural improvement, by establishing a
uniform system of common schools, and
28 MORAL LAW AND CIVIL LAW
schools of a higher grade, embracing nor-
mal, preparatory, collegiate, and university
departments."
Maryland. Art. 43, Declaration of Rights
1867:
' * That the Legislature ought to encourage
the diffusion of knowledge and virtue, the
extension of a judicial system of general
education, the promotion of literature, the
arts, sciences, agriculture, commerce, and
manufactures, and the general amelioration
of the condition of the people.
Art. 30 provides that no person shall
be molested on account of his religious pro-
fession, " unless under the color of religion
he shall disturb the good order, peace, or
safety of the State, or shall infringe the laws
of morality."
•Massachusetts. Art. n of the Amend-
ments, Declaration of Rights :
" As the public worship of God and in-
struction in piety, religion, and morality pro-
mote the happiness and prosperity of a peo-
ple and the security of a republican govern-
ment, therefore the several religious socie-
ties of the commonwealth shall have the
right to elect their pastors, contract with
them for their support, raise money to erect
PARTS OF THE SAME THING. 29
and repair houses for public worship,"
etc.
Art. 1 8, Declaration of Rights:
1 * A frequent recurrence to the funda-
mental principles of the Constitution, and a
constant adherence to those of piety, justice,
moderation, temperance, industry, and fru-
gality, are absolutely necessary to preserve
the advantages of liberty and to maintain
a free government. The people ought,
consequently, to have a particular attention
to all those principles in the choice of their
officers and representatives, and they have a
right to require of their law givers and mag-
istrates an exact and constant observance
of them in the formation and execution of
the laws necessary for the administration of
the commonwealth."
Chap. 5 of the Constitution, Sec. 2 :
" Wisdom and knowledge, as well as vir-
tue, diffused generally among the body of
the people, being necessary for the preser-
vation of their rights and liberties, and as
these depend on spreading the opportunities
and advantages of education in the various
parts of the country and among the different
orders of the people, it shall be the duty of
the Legislatures and magistrates to cherish
3
3O MORAL LAW AND CIVIL LAW
the interests of literature and the sciences,
... to countenance and inculcate the
principles of humanity and general benevo-
lence, public and private charity, industry
and frugality, honesty and punctuality in
their dealings ; sincerity, good humor, and
all social affections and generous sentiments
among the people."
Michigan. Art. 13, Sec. 1 1 , Constitution
1850:
' ' The Legislature shall encourage the pro-
motion of intellectual, scientific, and agri-
cultural improvements. . . ."
Mississippi. Art. 8, Sec. 201, Constitu-
tion 1890:
' * It shall be the duty of the Legislature
to encourage by all suitable means the pro-
motion of intellectual, scientific, moral, and
agricultural improvement, by establishing a
uniform system of free public schools, by
taxation or otherwise, for all children be-
tween the ages of five and twenty-one years,
and as soon as practicable to establish
schools of higher grade."
Missouri. Art. n, Sec. i, Constitution
1875:
' ' A general diffusion of knowledge and
intelligence being essential to the preserva-
PARTS OF THE SAME THING. 31
tion and the rights and liberties of the peo-
ple, the General Assembly shall establish
public schools."
Nebraska. Art. i, Sec. 4, Constitution
1875:
' ' All persons have a natural and inde-
feasible right to worship Almighty God
according to the dictates of their own con-
sciences. No person shall be compelled to
attend, erect," etc. " Religion, morality, and
knowledge, however, being essential to good
government, it shall be the duty of the Leg-
islature to pass suitable laws to protect every
religious denomination in the peaceable en-
joyment of its own mode of public worship,
and to encourage schools and the means of
instruction."
New Hampshire. Art. 6, Bill of Rights :
" As morality and piety rightly grounded
on evangelical principles will give the best
and greatest security to government, and
will lay on the hearts of men the strongest
obligations to due subjection, . . . the peo-
ple of the State have a right to empower,
and do hereby fully empower, the Legislature
to authorize from time to time the several
towns, parishes, bodies corporate, or reli-
gious societies within this State, to make
32 MORAL LAW AND CIVIL LAW
adequate provision for the support and main-
tenance of public Protestant teachers of
piety, religion, and morality."
North Carolina. Art. i, Sec. 29:
* ' A frequent recurrence to fundamental
principles is absolutely necessary to preserve
the blessings of liberty."
Art. 9, Sec. i :
' ' Religion, morality, and knowledgebeing
necessary to good government and the hap-
piness of mankind, schools and means of
education should forever be encouraged."
Ohio. Art. i, Sec. 7, Constitution 1851:
". . . Religion, morality, and knowledge,
however, being essential to good govern-
ment, it shall be the duty of the General
Assembly to pass suitable laws to protect
every religious denomination in the peace-
able enjoyment of its own mode of public
worship, and to encourage schools and the
means of instruction."
Rhode Island. Art. 12, Sec. i, Constitu-
tion 1 842 :
" The diffusion of knowledge, as well as
of virtue, among the people being essential
to the preservation of their rights and liber-
ties, it shall be the duty of the General As.
sembly to promote public schools, and to
PARTS OF THE SAME THING. 33
adopt all means which they may deem to be
necessary and proper to secure to the people
the advantages and opportunities of educa-
tion."
Tennessee. Art. n, Sec. 12, Constitu-
tion 1870:
" Knowledge, learning, and virtue being
essential to the preservation of republican
institutions, and the diffusion of the oppor-
tunities and advantages of education through-
out the different portions of the State being
highly conducive to the promotion of this
end, it shall be the duty of the General As-
sembly, in all future periods of this govern-
ment, to cherish literature and science.
M
Vermont. Chap, i, Art. 3, 1793:
' ' . . . Nevertheless, every sect or denom-
ination of Christians ought to observe the
Sabbath or Lord's Day, and keep up some
sort of religious worship, which to them
shall seem the most agreeable to the re-
vealed will of God."
Virginia. Art. i, Sec. 17, Bill of Rights:
' ' That no free government nor the bless-
ing of liberty can be preserved to any peo-
ple but by a firm adherence to justice,
moderation, temperance, and virtue, and by
34 MORAL LAW AND CIVIL LAW
a frequent recurrence to fundamental prin-
ciples."
Sec. 18:
' * That religion, or the duty which we
owe to our Creator, and the manner of dis-
charging it can be directed only by reason
and conviction, not by force or violence;
and, therefore, all men are entitled to the
free exercise of religion, according to the
dictates of their consciences, and that it is
the duty of all to practice Christian forbear-
ance, love, and charity toward each other."
West Virginia. Art. 3, Sec. 20, Bill of
Rights 1872:
" Free government and the blessings of
liberty can be preserved to any people only
by a firm adherence to justice, moderation,
temperance, frugality, and virtue, and by a
frequent recurrence to fundamental princi-
ples."
Art. 12, Sec. 12 :
1 ' The Legislature shall foster and encour-
age moral, intellectual, scientific, and agri-
cultural improvement, . . ."
In the States where neither morality nor
education are specifically referred to in their
constitutional provisions, these matters are
nevertheless recognized by legislative acts
PARTS OF THE SAME THING. 35
and by decisions of their courts as funda-
mental. Kentucky has no constitutional
specification as to morality, but morality is,
nevertheless, in her fundamental law. I
cite a case in Kentucky to this effect.
The Commonwealth vs. Douglas, re-
cently decided by the Court of Appeals, and
reported in 24th S. W. Reporter, 233, from
which I quote :
" When we consider that honesty, moral-
ity, religion, and education are the main
pillars of the State, and for the protection
and promotion of which government was
instituted among men, it at once strikes the
mind that the government, through its agen-
cies, cannot throw off these trust duties by
selling, bartering, or giving them away.
The preservation of the trust is essential to
the happiness and welfare of the benefici-
aries, which the trustees have no power to
sell or give away. If it be conceded that
the State can give, sell, and barter any one
of them, it follows that it can thus surrender
its control of all, and convert the State into
dens of bawdy houses, gambling shops, and
other places of vice and demoralization, pro-
vided the grantees paid for the privileges,
and thus deprive the State of its power to
36 MORAL LAW AND CIVIL LAW
repeal the grants and all control of the sub-
jects, as far as the grantees are concerned;
and the trust duty of fostering and protect-
ing the honesty, health, order, and good
morals of the State would be cast to the
winds, and vice and crime would triumph in
their stead. Now, it seems to us that the
essential principles of self-preservation for-
bid that the commonwealth should possess
a power so revolting, because destructive of
the main pillars of government. . . ."
The State of New York also has no spe-
cific provision in her Constitution upon the
subject of morality, but in the case of Stan-
ton vs. Allen, 5 Denio (New York Report),
434, the Court of Appeals in that State, said :
' ' . . . Sound morality is the corner stone
of the social edifice — whatever disturbs that
is condemned under the fundamental rule."
These citations will be sufficient upon this
matter, as I think there will be no contro-
versy upon this subject.
While Justinian the Great was Emperor
of Rome, about A. D. 530, he called to his
aid a number of men of the highest legal
learning of his time, and undertook to com-
pile and define the principles of law then
recognized by his government. He did
PARTS OF THE SAME THING. 37
more than all other men in the history of
that great empire for the establishment of
sound legal principles. In describing the
work he undertook and accomplished, he
says:
" When, therefore, by the assistance of
the same eminent person, Tribonian, and
that of other illustrious and learned men, we
had compiled the fifty books, called Digests
or Pandects, in which is collected the whole
ancient law, we directed that these institu-
tions should be divided into four books,
which might serve as the first elements of
the whole science of law.
' ' In these books a brief exposition is given
of the ancient laws, and of those also which,
overshadowed by disuse, have been again
brought to light by our imperial authority.
" Those four books of institute thus com-
piled from all the institutes left us by the
ancients, and chiefly from the commentaries
of our Gaius, both from his institute and
his journal, and also from many other com-
mentaries, were presented to us by the three
learned men we have above named. We
read and examined them, and have accorded
to them all the force of our constitutions.
" Receive, therefore, with eagerness, and
38 MORAL LAW AND CIVIL LAW
study with cheerful diligence, these, our
laws, and show yourself persons of such
learning that you may conceive the flattering
hope of yourselves being able, when your
course of legal study is completed, to govern
our empire in the different portions that
may be intrusted to your care."
Justinian's first definition is as follows:
' * Jurisprudence is the knowledge of things
divine and human ; the science of the just
and the unjust."
In Paragraph 3, of Book I, he says : ' l The
maxims of the law are these: to live honestly;
to hurt no one; to give everyone his due."
His whole system of laws was founded
upon these principles.
Blackstone, about one hundred and twen-
ty-five years ago, undertook the great work,
in imitation of Justinian, of compiling legal
principles as recognized in the jurisprudence
of England. In laying down the founda-
tions of his work, using the terms ' ' Law of
Nature " and " Ethics " in the sense of moral
law, he speaks as follows :
' ' This will of his Maker is called the
law of nature. For as God, when he cre-
ated matter and endued it with a principle
of mobility, established certain rules for the
PARTS OF THE SAME THING. 39
perpetual direction of that motion; so,
when he created man and endued him with
free will to conduct himself in all parts of
life, he laid down certain immutable laws
of human nature whereby that free will is
in some degrees regulated and restrained,
and gave him also the faculty of reason to
discover the purport of those laws.
' ' Considering the Creator only as a being
of infinite power, he was able, unquestion-
ably, to have prescribed whatever laws he
pleased to his creature, man, however un-
just or severe. But, as he is also a being of
infinite wisdom, he has laid down only such
laws as were founded in those relations of
justice that existed in the natures of things
antecedent to any positive precept. These
are the eternal, immutable laws of good and
evil, to which the Creator himself in all his
dispensations conforms ; and which he has
enabled human reason to discover, so far as
they are necessary for the conduct of human
actions. Such, among others, are these
principles: that we should live honestly,
should hurt nobody, and should render to
everyone his due ; to which three general
precepts Justinian has reduced the whole
doctrine of law.
40 MORAL LAW AND CIVIL LAW
" But if the discovery of these first prin-
ciples of the law of nature depended only
upon the due exertion of right reason, and
could not otherwise be obtained than by a
chain of metaphysical disquisitions, man-
kind would have wanted some inducement
to have quickened their inquiries, and the
greater part of the world would have rested
content in mental indolence and ignorance,
its inseparable companion. As, therefore,
the Creator is a being, not only of infinite
power and wisdom, but also of infinite good-
ness, he has been pleased so to contrive the
constitution and frame of humanity that we
should want no other prompter to inquire
after and pursue the rule of right, but only
our self-love, that universal principle of ac-
tion ; for he has so intimately connected,
so inseparably interwoven, the laws of eter-
nal justice with the happiness of each indi-
vidual that the latter cannot be obtained
but by observing the former; and if the
former be punctually obeyed it cannot but
induce the latter. In consequence of which
mutual connection of justice and human
felicity he has not perplexed the law of na-
ture with a multitude of abstract rules and
precepts, referring merely to the fitness or
PARTS OF THE SAME THING. 41
unfitness of things, as some have vainly sur-
mised ; but has graciously reduced the rule
of obedience to this one paternal precept,
' that man should pursue his own true and
substantial happiness/ This is the founda-
tion of what we call ethics (morality), or
natural law. For the several articles into
which it is branched in our system amount
to no more than demonstrating that this or
that action tends to man's real happiness,
and, therefore, very justly concluding that
the performance of it is a part of the law
of nature ; or, on the other hand, that this
or that action is destructive of man's real
happiness, and, therefore, that the law of
nature forbids it."
" This law of nature, being coeval with
mankind and dictated by God himself, is, of
course, superior in obligation to any other.
It is binding over all the globe, in all coun-
tries, and at all times. No human laws are
of any validity if contrary to this ; and such
of them as are valid derive all their force
and all their authority, mediately or imme-
diately, from this original."
Chancellor Kent, the distinguished Amer-
ican commentator and law writer, begins his
commentaries with the following statement :
42 MORAL LAW AND CIVIL LAW
' ' When the United States ceased to be a
part of the British empire, and assumed
the character of an independent nation, they
became subject to that system of rules
which reason, morality, and custom has es-
tablished among the civilized nations of
Europe. . . .
" We ought not, therefore, to separate
the science of public law from that of ethics
or morality, nor encourage the dangerous
suggestion that governments are not so
strictly bound by the obligations of truth,
justice, and humanity in relation to other
powers as they are in the management of
their own local concerns. States, or bodies
politic, are to be considered as moral per-
sons having a public will, capable and free
to do right and wrong, inasmuch as they
are collections of individuals, each of whom
carried with him into the service of the
community the same binding law of mo-
rality and religion which ought to control
his conduct in private life. The law of na-
tions is a complex system composed of va-
rious ingredients. It consists of general
principles of right and justice, equally suit-
able to the government of individuals in a
state of natural equality and to the relation
PARTS OF THE SAME THING. 43
and conduct of nations ; of a collection of
usages, customs, and opinions the growth
of civilization and commerce ; and of a code
of conventional or positive law. In the ab-
sence of these latter regulations the inter-
course and conduct of nations are to be gov-
erned by principles fairly to be deduced
from the rights and duties of nations and
the nature of moral obligations; and we
have the authority of lawyers of antiquity,
and of some of the first masters in the
modern schools of public law, for placing
the moral obligation of nations and of indi-
viduals on similar grounds, and for consid-
ering individual and national morality as
parts of one and the same science."
Sheldon Amos, M.A., Professor of Juris-
prudence in the University College, Lon-
don, Tutor to the Inner Temple of Juris-
prudence, Civil Law, and International
Law, in a work published in 1872, entitled
Systematic View of the Science of Jurispru-
dence, Vol. I, page 515, says:
' ' The purpose of the law is to fortify and
to maintain public morality, and not to
create and invent it ; give solidity and per-
manence to the essential relationship on
which national life depends, and not to be
44 MORAL LAW AND CIVIL LAW
the formation of their vital energy ; to se-
cure for every man and woman for the cre-
ation of rights and duties a clear and open
space for unrestricted action, within which
they are free to develop all their faculties
without hindrance or intrusion from with-
out ; and to uphold the security of such in-
stitutions as the voluntary efforts of man-
kind may devise or adopt, as seems to them
best calculated to quicken or develop or
invigorate the moral aspirations of the
race."
Dr. Francis Lieber was educated and re-
ceived high cultivation in the schools of
France. Among other works was his Man-
ual of Political Ethics (morality), which he
wrote and published in 1878. Chancellor
Kent says, in approval of this work: " Dr.
Francis Lieber, in his Manual of Political
Ethics, has shown with great force, and by
the most striking and apposite illustrations,
the original connections between right and
morality, and the reason and the necessity
for the application of the principles of eth-
ics (morality) to the sciences of politics and
administration of government. The work
is excellent in its doctrines, and it is en-
riched with various and profound erudition."
PARTS OF THE SAME THING. 45
Bishop, for thirty years recognized in the
United States as a standard authority on
criminal law, in his work on that subject
says, Sec. 495 : " Morality, religion, and
education are the three main pillars of the
State and the substance of all private good.
A community from which they are banished
represents more than the gloom of original
chaos. Therefore, they should be objects
of primary regard by the law."
Also, Sec. 500: "But however uncer-
tain may be the precise extent to which the
common law protects Christianity, there is
no question that it practically and fully
cherishes the public morals. And it pun-
ishes as a crime every act which it deems
sufficiently evil and direct, tending to impair
the public morals."
The same author, in his works on con-
tracts, enlarged edition, Sec. 505, says:
" Prominent among the interests which the
law protects are the public morals."
The legal authorities here cited upon this
proposition are taken from the various pe-
riods of history reaching back to the begin-
ning of the Christian era, and also univer-
sally recognized as the leading authorities
upon law and jurisprudence. I might add
4
46 MORAL LAW AND CIVIL LAW
a large number and quote volumes to the
same effect, but for the purposes of this
work must content myself with the support
thus given to the proposition that morality
is a fundamental principle of civil govern-
ment. I hazard nothing by saying that no
legal authority of respectable standing can
be found to the contrary.
PARTS OF THE SAME THING. 47
CHAPTER III.
WHAT IS MORALITY?
I KNOW nothing about which there ex-
ists in the public mind or the legal
profession more uncertainty than there
is concerning the word "morality," in
civil law. There are very few attorneys,
whatever may be the length of their ex-
perience or their standing in the profession,
who would answer without hesitation or
with confidence the question, What does the
law mean by the word morality? It is
most remarkable that a word so familiar, as
old as the language, which is a translation
of Latin and Greek terms, extending
beyond the Christian era, a word which is
used for the foundation stone of civil gov-
ernment, should convey so vague and un-
certain an idea to the public mind. This
familiar word evidently has some meaning,
represents some great and indispensable
principle, is of the greatest importance, or
else it would not have been so long in use
and been given such remarkable prominence
48 MORAL LAW AND CIVIL LAW
in civil affairs. There is a very large and
influential school of political teachers who
insist that morality, whatever it means,
should not be connected in any way with
politics or legislation, asserting that men
cannot be made moral by legislation. On
the other hand there is a very large and in-
fluential school that teaches that morality
and religion are the same thing, who be-
lieve in the union of Church and State, and
that politics and legislation should provide
for and control matters of religion. It will
not be controverted that civil governments
must contemplate, as do these United States,
the protection of liberty in religious belief,
and encourage religious worship as they do
education and other subjects for the pur-
pose of good influences that come from these
things. These civil governments, however,
cannot define and favor, or control, or re-
strict, any special form of religious worship
or belief. I am convinced that there is a
general and prevailing uncertainty among
the masses of people as to the distinction
between matters of religion and morality.
Out of this uncertainty comes a very dan-
gerous sentiment creating the impression
that as civil government cannot enforce mat-
PARTS OF THE SAME THING. 49
ters of religion and forms of religious wor-
ship, it cannot enforce matters of morality
and moral conduct.
Let me attempt to simplify from a legal
standpoint the difference between religion
and morality. Religion refers to the inner
individual life and belief. Religion requires
that a man should love his neighbor as him-
self, but the civil law cannot compel him to
do so, nor punish him if he does not.
Morality requires a man to treat his neigh-
bor honestly and fairly, and can compel him
to do so, and punish him if he does not.
Religion is a matter of belief ; morality is a
matter of conduct. The law does not in-
terfere with matters of belief, but does un-
dertake to control matters of conduct. The
legal distinction between religion and moral-
ity is thus clearly presented without further
discussion, so that no man need go astray.
The words virtue, utility, ethics, and espe-
cially the latter, have been largely considered
and made subjects of many books, and have
occupied the time and attention of great
minds. In recent years the word ''altru-
ism" has been suggestive as a theme for
great attention and the expression of beau-
tiful ideas. The science of sociology is just
50 MORAL LAW AND CIVIL LAW
now attracting wide attention and considera-
tion. There seems to be a general timidity
and hesitation in the use of the word moral-
ity and the consideration of its scope and
application. Upon careful consideration of
all that has been written and said, and is
being written and said, about this word and
many words of like import, it will be seen
that what is, in the main, contemplated and
discussed under each and all of these names
is the simple, common, old-fashioned sub-
ject of morality, nothing more, but often
something less. Why hunt for terms or
words, why confuse counsel, why attempt
to weaken the force of the good old word
morality, by using vague, uncertain, feebler
terms, that have never had, and never can
have, a fixed and settled meaning? I come
to plead for a fixed science, and no vagary.
Paley, in his work on Moral and Politi-
cal Philosophy, written more than one hun-
dred and ten years ago, begins with the first
sentence as follows: " Moral philosophy,
morality, ethics, and natural law mean all
the same thing ; that science which teaches
men their duty and the reason of it."
I have gone through many volumes
written upon the subjects just referred to,
PARTS OF THE SAME THING. 51
seeking for a concise definition of morality,
or the definition of its synonyms. I find
these writers admitting great difficulty in
giving the definition. I find them analy-
zing the word, considering its component
elements, and devoting much time to each
of these, taking the word to pieces, and
spending much time in defining, specifying,
and explaining the nature and office of the
pieces, and I must admit great disappoint-
ment in finding that they fail to put the
pieces back together, and tell us what the
structure is. They give the component
parts, but not the composition. If morality
is a foundation stone or a pillar in the con-
struction of the State, we certainly can lay
our hands upon that corner stone or upon
that pillar. The more books that have ap-
peared upon this subject, the greater the un-
certainty in the public mind. If there is
such a thing as morality, we must be able
to know what it is. If it cannot be defined,
it cannot be understood ; if it has no stand-
ard, it is not practical ; if it cannot be iden-
tified, it is a myth. Theologians confuse it
with religion, and lose sight of it in its civil
character. Philosophers and metaphysicians
tear it to pieces and fatigue the life out of
52 MORAL LAW AND CIVIL LAW
it, and often leave it so disfigured that its
best friends cannot recognize it. We com-
mon people of average intelligence want,
and must have, some definition, concise, in
plain English language, of this great subject
that we can understand. We common peo-
ple must have erected in our midst a stand-
ard to which we may look and live, while
we and our families are being bitten by
these fiery serpents that are everywhere in
society. It seems to me in this great emer-
gency we must look to the civil law for in-
formation and relief. In fact that is the
source from which the information should
and must come, when we seek the civil and
legal standard of morality. Let it be borne
in mind that morality is not religion. It
has sometimes been said that men make
their morality their religion, and expect to
be saved by it. In such a case morality be-
comes religion to the individual, and in it
and by it he performs his acts of worship of
some supreme being. Whether he can be
saved thereby is no part of the subject I am
now considering. Morality is for this life
only. Morality is purely a civil condition ;
refers to the citizen, to the individual in
his relations to other people and society.
PARTS OF THE SAME THING. 53
I propound the hard question, if it is so
understood, for the purpose of answering
the same, without evasion or equivocation
— What is meant in Law by the word
" Morality?"
In the case of Lyon vs. Mitchell, 36th N.
Y., 235, the Court of Appeals, in a decision
of a question properly before it, said : * * The
defendant, I think, has no right to ask a
charge that (as asked in the lower court)
any contract which conflicts with the morals
of the time is void, as being against public
policy. To make such a contract thus void
it must be against sound morals, as defined
by Paley to be ' that science which teaches
men their duty, and the reason of it'
(Paley Moral Philosophy, B. i, C. i). 'Mo-
rality is the rule which teaches us to live
soberly and honestly. It hath four chief
virtues — justice, prudence, temperance, and
fortitude/
" To make a contract void on the princi-
ple claimed, it must be against morality as
thus defined. The morals of the time may
be vicious; public sentiment may be de-
praved ; the people may have gone astray
so that not one good man can be found.
Sound morals, as taught by the wise men of
54 MORAL LAW AND CIVIL LAW
antiquity, as confirmed by the precepts of
the Gospel, and as explained by Paley and
Home, are unchanged. They are the same
yesterday and to-day. "
This decision has been cited with ap-
proval in New York a number of times and
in subsequent decisions, and has never been
criticised or rejected by the Supreme Court
of any State, so far as I have been able to
find.
In the American and English Encyclopedia
of Law, Vol. XV, page 716, this definition
of morality is quoted in the text as settled
law, and this case is cited.
In the case of Baltimore and Potomac
Railway Co. vs. The 5th Baptist Church,
108 U. S. Supreme Court Report, page 739,
among other things in applying the rules of
law in that case, the court said :
' ' Whatever the extent of the authority
conferred, it was accompanied with this im-
plied qualification, that the works should
not be so placed as by their use to unrea-
sonably interfere with and disturb the
peaceful and comfortable enjoyment of
others in their property. Grants of privi-
leges or powers to corporate bodies like
these in question confer no license to use
PARTS OF THE SAME THING. 55
them in disregard of the private rights of
others, and with immunity for their inva-
sion. The great principle of the common
law, which is equally the teaching of Chris-
tian morality, to so use one's property as not
to injure others, forbids any other application
or use of the rights and powers conferred."
The point distinctly presented in the
decision last cited in the quotation I make
from it, to which I call attention, is the
declaration of the highest judicial tribunal
in this land, that common law morality and
Christian morality are the same.
In Leiber on Penal Law, 2nd Lieber's
Miscellaneous Works, 471, the author says:
" At common law, indictability and im-
morality are convertible terms."
In Wharton's Criminal Law, Vol. I, sec.
140, the author quotes the foregoing expres-
sion from Leiber, and modifies slightly the
claim of Leiber by saying, " There are some
immoral acts which are not indictable, and
some indictable acts which are not immoral ; "
but he says : * ' If we were required to sup-
ply a further test, we might say that public
policy demands the indictability of all im-
moral acts of which punishment by law is
the proper retribution."
56 MORAL LAW AND CIVIL LAW
In Wells's Pollock on Torts, American
Edition, 1894, page 12, the author gives as
the subject of a paragraph, " Relation of
the Law of Torts to the semiethical precept,
' Alterum non laedere ' (' Thou shalt do no
harm to thy neighbor')."
Discussing this subject, he says: "We
have then three main divisions of the law
of torts. In one of them, which may be
said to have a quasi criminal character,
there is a very strong ethical, moral ele-
ment. In another no such element is ap-
parent. In the third such an element is
present, though less, and manifestly so.
Can we find any category of human duties
that will approximately cover them all, and
bring them into relation with any single
principle? Let us turn to one of the best
known sentences in the introductory chapter
of the Institutes copied from a lost work of
Ulpian : 'Juris percepta sunt haec ; honeste
vivere alterum non laedere, suum cuique
tribuere ' — * The maxims of the law are
these: Thou shalt live honestly. Thou shalt
do no hurt to thy neighbor. Thou shalt give
everyone his due ' ( ' Honeste vivere ') . ' Thou
shalt live honestly' is a vague phrase enough.
It may mean refraining from criminal of-
PARTS OF THE SAME THING. 57
fenses, or possibly good behavior in social
and family relations ('suum cuique tribuere')
'Thou shalt give everyone his due' seems to
fit pretty well with the law of property and
contract. And what of ' alterum non lae-
dere?' (* thou shalt do no hurt to thy neigh-
bor.') Our law of torts, with all its irregu-
larities, has for its main purpose nothing
less than the development of this precept.
This exhibits it, no doubt, as the technical
working out of a moral idea by a positive
law, rather than the systematic applica-
tion of any distinctly legal conception. But
all positive law must presuppose a moral
standpoint, and at times more or less open-
ly refer to it, and the more so in proportion
as it has, or approaches to having, a penal
character."
In Law of Torts, by Piggott, page 208, on
the subject of frauds he says: " It will be
noticed that we have ignored the distinction
between legal and moral fraud sometimes
drawn. * I am of the opinion,' said Brom-
well, L. J., in Weir vs. Bell (3 ex. D., 243),
' that to make a man liable for fraud, moral
fraud must be proved against him. I do
not understand legal fraud. To my mind,
it has not more meaning than legal heat or
58 MORAL LAW AND CIVIL LAW
legal cold, legal light or legal shade. There
never can be a well-founded complaint of
legal fraud, or of anything else, except
where some duty is shown, and correlative
right and some violation of that duty and
right. . . .' In truth we are discussing
the legal aspect of a moral question, and,
as we have seen, the common law does prac-
tically adopt the same standard as morality.
The apparent exception to which ' legal
fraud ' is sometimes attached is the lia-
bility of the principal for the fraud of his
agent ; but this may be rested on another
moral ground. His claim to take advan-
tage of his agent's fraud is in itself a moral
fraud."
Sheldon Amos, M.A., Professor of Juris-
prudence in University of London, very
high authority on any subject which he
touches, from whom I have hereinbefore
quoted, in a book entitled A Systematic View
of the Science of Jurisprudence, on page 516
says:
' ' There exists somewhere a true and
common canon, or standard of action, in-
flexible in itself, and yet withal admitting
of an easy adjustment and the most exquisite
modulations for all members of society,
PARTS OF THE SAME THING. 59
which, the more habitually each member
adopts, the vaster is the expansion of which
his own nature is capable, and the less is
the chance of the need of interruption to
others ; and which the more habitually all
men adopt, the more freely and harmoni-
ously the general machinery of social inter-
course works. This canon or standard of
action is hard, indeed, to discover, and par-
ticular societies may spend long ages in un-
availing efforts to discover it. ... This
canon or standard of action, including here
under the term action all the thoughts and
feelings that give it life and warmth, is ab-
solute morality. It is only the visible image
of the mechanical scaffolding of this that is
designated by the phrase, * National law.' '
When the law by its expansion and its
nearer approach to the image of absolute
morality becomes, as the author says, "a
mode of benevolent guidance and aid,"
then, as he continues, it "characteristically
stands forth as the ever present and incarn-
ate witness of that ultimate morality of
which it is, at best, no more than the sym-
bol and the counterpart."
This distinguished author closes his work
as follows :
60 MORAL LAW AND CIVIL LAW
' ' It is not then in law nor in government
that hope must be placed for the direct cul-
ture of a nation's vitality. It is in moral
and spiritual efforts, whether expressed in
salutary and silent influences or in highly
systemized organizations. ... In a word,
it is to these direct inspirers of human vir-
tue and energy that law itself must turn in
order to find at hand a race of citizens
whose dearest concern will be to obey, to
cherish, and to reform it."
There seems to be a general impression
abroad that the word ' ' morality " is a general
term like the words "cattle" and " horses,"
and that it includes many different varie-
ties. Under this false idea morality, as ap-
plied to the ministers of the Gospel, is one
thing; to the teacher, another thing; to
the attorney, another thing ; to the business
man, another thing ; and to the applicant
for license to sell intoxicating liquors, it is
anything for his especial benefit. It is high
time for earnest teaching to correct these
errors in the public mind. Morality is like
truth ; it has no varieties. It is the same
thing in every place and relation ; whether
it appears in the pulpit, in the business trans-
action, in the court of justice, in the home,
PARTS OF THE SAME THING. 61
or in political affairs. It is one thing that
cannot be adjusted to accommodate the ne-
cessities of any man or any business. In the
language of the highest court in the State
of New York, heretofore quoted, but which I
repeat because of the great value there is in
the expression, " Sound morals, as taught
by the wise men of antiquity, as confirmed
by the precepts of the Gospel, and as ex-
plained by Paley and Home, are unchanged.
They are the same yesterday and to-day."
Let it be fully understood that in legal
contemplation, thoroughly settled, Christian
Morality, Statutory Morality, Constitutional
Morality, Common Law Morality, Common
Sense Morality, and Morality are all the same
thing. Whenever, wherever, and in what-
ever connection the word "morality" is
used, it means morality. If ever used in any
other sense, it is improperly used. Simpli-
fying the legal standard, it may be easily
understood that the law considers questions
of morality as governed by the golden rule.
There is not any standard of religious
creed. A man may profess any kind of re-
ligious belief that is not immoral and does
not violate any civil law.
Mormonism was only unlawful so far as it
5
62 MORAL LAW AND CIVIL LAW
was immoral, and its immorality consisted
in recognizing the plurality of wives.
There is a legal standard of morality up
to which every man must come, and the
standard is the same in every State. This
is fixed and required, like standards of
weights and measurements. The standards
of weights and measurements might be
changed, but the standard of morality can-
not be. It has been settled and fixed as
the work of all the learning, wisdom, and
experience of the past, in fact, by a super-
natural influence, and cannot be changed.
Civil government, applying this standard
to business affairs, will compel full measure-
ment, full weight, full count, and that the
goods come up to the sample. This is ab-
solutely necessary to promote and protect
business affairs.
If civil government were to give its whole
attention to the cultivation of the youth in
high integrity in business affairs only, and
the punishment of offenses against the rules
of morality in this regard only, how long
could it hold together? The social affairs of
her citizens are of the most importance to
the government, and are not to be neglected.
A young man from a farm not many
PARTS OF THE SAME THING. 63
years ago presented himself to the presi-
dent of the Indiana State University, and
said he had determined to become a public
speaker, and had come to study grammar.
The president asked him what else he de-
sired to study. He said, " Nothing else."
The president said, ' l We cannot teach you
grammar by itself. You must take other
studies with it." The young man said,
"Why, is not grammar in a book by itself?"
The president said, * * Did you ever try on
the farm at home to fatten only one quarter
of a beef at a time?" He answered, "No;
you cannot fatten a beef at all, unless you
fatten it all together." The president said,
"So you must fit yourself all together if you
expect to meet your ambition."
The government can only be safe when
her citizens are developed and regulated by
the moral standard as applied alike to busi-
ness, educational, and social affairs. The
leaders in strikes and mobs, who block and
terrorize business, disregard morality in
social affairs, and do not believe that mo-
rality exists in business affairs, are the prod-
ucts of false teachings on morality in civil
affairs.
It is more important to the government
64 MORAL LAW AND CIVIL LAW
that a citizen should be moral than that he
should be religious, but religion is the great-
est teacher upon the subject of morality.
This is the reason why the law encourages
religion and religious worship.
It has been held in various States, es-
pecially in Pennsylvania by her Supreme
Court, that the Christian religion is a part
of the law of the land, and that the system
of morality as represented and defined by
the Christian religion is the standard of
morality in this nation.
Paley combined, in one treatise, moral and
political philosophy. He laid down the rigid
rules of morality as they were in his day, and
had been from time immemorial, and ever
must be. Yet he has been charged by high
authority with attempting to modify them a
little to accommodate aristocratic influences.
When the word " morality " was used in
the Constitution of Indiana in 1851, and
made the first and most important subject
upon which the Legislature is commanded to
act, it must be presumed that it was so used
in contemplation of its history and full
meaning, not only as understood in 1851,
but also as its fullness and meaning shall
appear in 1951, and always.
PARTS OF THE SAME THING. 65
It is my purpose to aid in correcting the
impression that there are different kinds
and standards of morality.
There is only one kind, and only one standard
of morality, known to the civil law.
This is true in every State and by the laws
of the United States.
Then, when we speak of moral law and
civil law, we mean parts of the same thing.
Using commonplace terms, morality and
moral character is each made of the follow-
ing elements in equal parts :
1 . Fair dealing in business and social life.
2 . The exertion of a good influence in all
relations ; and,
3. Faithful obedience to the law.
Every man knows either one of these ele-
ments when he sees it, or hears it, or feels it.
Every man, I mean every man who knows
enough to exercise the privileges of citizen-
ship in any form, in fact, knows full well what
morality and moral character are in every
other form except in legal contemplation.
My purpose is to make clear and to emphasize
the most important fact, that morality and
moral character are exactly the same in legal
contemplation as they are when viewed from
any other established standpoint.
66 MORAL LAW AND CIVIL LAW
CHAPTER IV.
WHAT IS IMMORALITY?
IT may seem unnecessary to ask such a
question. It may seem that this is a
foolish question. However, my obser-
vation leads me to believe that there is a very
great uncertainty in the public mind upon
this subject, especially as to the legal com-
prehension of the word ll immorality." Let
it be kept in mind that I am considering
every matter in this work from a legal stand-
point only. I use Indiana as an illustration
of what is true of every State in this gov-
ernment. I must depend upon illustrations
from this State, because to follow the sub-
ject as it has run through all the States is
unnecessary for the purpose of this work.
The illustrations I shall use can be pursued
by the citizens of any State, and would be
found to apply as forcibly in any other State
as in Indiana.
The Legislature in Indiana has passed laws
defining offenses, every one of which any
candid person will admit is, independent of
PARTS OF THE SAME THING.
67
civil laws, an immoral act. These offenses,
which are essentially wrong and immoral,
are forbidden by law as a public necessity.
For the purpose of showing the extent to
which our Legislature has gone I quote the
subjects of criminal statutes in our State :
Women Soliciting Medicine
for Miscarriage.
Libel.
Blackmailing.
Treason.
Misprision of Treason.
Murder in First Degree.
Murder by Duel in the State.
Murder by Duel Outside of
the State.
Murder in Second Degree.
Manslaughter.
Assault and Battery with
Intent.
Assault.
Assault and Battery.
Malicious Mayhem.
Simple Mayhem.
Robbery.
Kidnapping.
Child Stealing.
Rape.
Rape of Insane Women.
Poisoning with Intent to
Kill.
Poisoning Springs, etc.
Prescribing Medicines when
Drunk.
Prescribing Secret Medicine.
Attempting to Procure Mis-
carriage.
Arson.
Burning Woods, Prairies,etc.
Burglary.
Housebreaking in Daytime
to Steal.
Entering House, etc., to
Commit Burglary.
Housebreaking to Commit
Violence.
Petit Larceny.
Receiving Stolen Goods.
Secreting a Will.
Stealing Public Records.
Officer Stealing or Destroy-
ing Records.
Altering Records.
Carrying off Fruits, etc.
Trespass.
Embezzlement of Public
Funds.
Embezzlement by Officers.
Embezzlement by Em-
ployees.
68
MORAL LAW AND CIVIL LAW
Embezzlement by Lawyers
and Collectors.
Embezzlement by Railroad
Employees.
Embezzlement by Innkeep-
ers and Carriers.
Embezzlement by Bailee.
Embezzlement by Tenants.
Embezzlement by Treasur-
ers.
Embezzlement of Public
Funds.
Embezzlement of Fiduci-
aries.
Malicious Trespass.
Selling and Secreting State
Arms.
Removing Mortgaged
Goods.
Injuring Telegraph or Tele-
phone Poles or Wires.
Running Hand Car without
Authority.
Obstructing Railroad Track.
Injuring Vines and Trees.
Defacing Tombstones.
Injuring Trees on Highway.
Obstructing Highway.
Cutting Shade Trees.
Altering or Removing Land-
marks.
Defacing Legal Advertise-
ments.
Pasting Bills on Building.
Altering Marks.
Forcible Entry or Detainer.
Defacing Library Books.
Unauthorized Military Ex-
pedition.
Aiding Hostile Army.
Privateering.
Challenge to Duel.
Dueling.
Prize Fighting.
Affray.
Riot.
Rout.
Provocation.
Drawing Dangerous Weap-
on.
Carrying Dangerous Weap-
on.
Furnishing Deadly Weapon
to Minor.
Disturbing Meetings.
Bigamy.
Incest.
Adultery and Fornication.
Seduction.
Enticing Females to House
of 111 Fame.
Keeping House of 111 Fame.
Public Indecency.
Disposing of Obscene Lit-
erature.
Sending Obscene Litera-
ture.
Advertising Drugs for Fe-
male Use.
Profanity.
PARTS OF THE SAME THING.
69
Sabbath Breaking.
Houses of Assignation.
Pimp.
Prostitution.
Letting Stallions in Public.
Sodomy.
Playing Baseball on Sun-
day.
Perjury.
Perjury in Voluntary Affi-
davit.
Subornation of Perjury.
Bribery of Public Officers.
Bribery of Jurors.
Compounding Felonies.
Compounding Misdemean-
ors.
Compounding Prosecution.
Concealing Criminals.
False Personation.
Producing False Heir.
Substituting Child.
Extortion.
Judge Practicing Law.
County Officer Practicing
Law.
Holder of Office Acting as
Notary.
Falsely Attesting Affidavit.
Falsely Attesting Acknowl-
edgment.
Officer not Explaining In-
strument.
Notary Acting after Office
Expires.
Justice or Constable Pur-
chasing Judgment.
Suffering Capital Criminal
to Escape.
Suffering Felon to Escape.
Aiding Prisoner to Escape.
Aiding Convict to Escape.
Aiding Prisoner to Escape
from Jail.
Suffering Person Charged
with Misdemeanor to Es-
cape.
Obstructing Writ of Habeas
Corpus.
Obstructing any Legal Proc-
ess.
Convict Escaping from State
Prison.
Disobeying Subpoena for
Citation.
Corruptly Influencing Ju-
rors.
Suffering Jail to be Unclean.
Cruelty to Poor.
Official Negligence.
Refusing to Aid Officer.
Common Barrator.
Usurpation of Office.
Officer Acting without
Qualifying.
Intoxicated Officer.
Keeping County Office in
Improper Place.
Officers Discounting Or-
ders.
70 MORAL LAW AND CIVIL LAW
Extortion from Pensioners.
Officer Interested in Public
Contracts.
Township Trustee Refus-
ing to Pay Just Demand.
Bribery of Officer.
Auditor of State Drawing
Warrant Illegally.
StateOfficer notAccounting.
ObstructingExamination of
State Treasury.
False Report as to Treasury
of State.
State Treasurer Paying Il-
legally.
State Treasurer Using False
Voucher.
Defalcation of State Treas-
urer.
Breaking Quorum in Com-
mon Council.
Breaking Quorum in Gen-
eral Assembly.
Neglect of Roads.
Recording Deed without
Transfer.
Misfeasance of Clerk of
Printing Bureau.
Misfeasance of Inspector of
Grain.
Public Nuisance.
Creating Stagnant Water.
Nuisance by Dead Animals.
Selling Unwholesome Pro-
visions.
Selling Diseased Animals.
Selling Unwholesome Milk.
Adulterating Native Wines.
Adulterating Liquors.
Making or Selling Poison-
ous Liquors.
Befouling Water.
Selling Oleomargarine.
Adulteration of Vinegar.
Selling Uninspected Meat.
Raffling.
Lotteries and Gift Enter-
prises.
Advertising Lotteries.
Betting and Pool Selling.
Keeping Gaming Houses.
Keeping Room for Pool
Selling.
Inducing Minors to Gamble.
Gaming.
Bunco-steering.
Common Gambler.
Keeping Devices for Gam-
bling.
Allowing Minors to Play at
Gaming.
Selling Liquor to Drunken
Man.
Selling Liquor to Habitual
Drunkard.
Selling Liquor to Minor.
Misrepresenting Age to Ob-
tain Liquor.
Furnishing Liquor to Pris-
oners.
PARTS OF THE SAME THING.
Keeping Disorderly Liquor
Shop.
Selling Liquor on Sunday.
Druggist Selling Liquor on
Sunday.
TradingNearCampMeeting.
Cruelty to Animals.
Suffering Glandered Horse
at Large.
Allowing Diseased Sheep at
Large.
Bringing in Texas Cattle.
Killing Deer.
Hunting Quails, Pheasants,
or Wild Turkeys.
Taking Prairie Chickens.
Destroying Birds.
Destroying Woodcock or
Wild Duck.
Hunting on Lands without
Consent of Owner.
Injuring Property while
Hunting.
KeepingQuail,etc.,forSaleat
Certain Times of the Year.
Carrying Game Killed in
Violation of Law.
Selling Game not Shot.
CarryingGamebeyondState.
Killing Wild Pigeons.
Spearing or Trapping Fish.
Stretching Net near Ohio
River.
Poisoning Fish.
Using Seines, Dynamite,etc.
SellingCanada Thistle Seed.
Allowing Canada Thistle to
Grow.
Suffering Growth of Canada
Thistle.
Gathering Cranberries on
Public Lands.
Overworking Children at
Factories.
Preventing a Person from
Working.
Impeding Railroad Travel.
Disclosing Contents of Tele-
gram.
Disclosing Contents of
Telephone Message.
Promoting Divorces.
False Labels of Weights.
Altering Inspector's Marks.
Bringing Pauper into State.
Deserting Wife or Child.
Vagrancy.
Tramps.
Amalgamation.
Counseling Amalgamation.
Swindling Underwriters.
Conspiracy.
Malicious Prosecution.
Failing to Keep Light on
Drawbridge.
Obstructing Navigable
Streams.
Maintaining Bridge with-
out Draw.
Leaving Bridge Open.
MORAL LAW AND CIVIL LAW
Injuring Bridge.
Driving on Towpath.
Opening Canal Blocks.
Performing Marriage Cere-
mony without Authority.
Failing to Return Marriage.
Giving False List of Taxa-
bles.
Not Providing Fire Escape.
Obstructing Road.
Obstructing Drainage.
Obstructing or Diverting
Water.
Not Providing Outswinging
Doors.
Defrauding Creditors.
Appropriating Estrays.
Entry on State Lands.
Horse Racing on Highways.
Running Horses in Towns.
Charging Illegal Ferriage
or Toll.
Oppressive Garnishment.
Transferring Claims for
Garnishment.
Selling Notes of Insolvent
Bank.
Disturbing Grave.
Taking Corpse.
Aiding Concealment of
Corpse.
Buying Corpse. A
Climbing on Cars in Motion.
Obstructing Highways with
Cars.
Running Passenger Cars
without Tools.
Engineer Failing to Stop
at Railroad Crossing.
DeceivingRailroaclEngineer.
Untimely Crossing on Rail-
road Track.
StoppingTrain on Crossing.
Obstructing Highway with
Train.
Locking Passenger Cars.
Failing to Give Signals.
Selling Dangerous Toys.
Selling Examination Ques-
tions.
Pointing Firearms.
Permitting Gambling on
Grounds of Agricultural
Society.
Running Traction Engine
on Highway without
Sending Man Ahead.
Giving or Selling Tobacco
to Children.
Heavy Hauling on Highway
at Certain Times.
Hunting Squirrels at Cer-
tain Times.
Voting Illegally.
Voting in Wrong Precinct.
Nonresident Voting.
Importing Votes.
Voting More than Once.
Hiring Men to Vote or Re-
frain.
PARTS OF THE SAME THING.
73
Selling Votes.
Fraud of Election Officer.
Altering Returns.
Refusing to Receive Vote.
Officer Persuading Voter.
Officer Opening or Marking
Ticket.
Deceiving Illiterate Voter.
Defrauding Voter.
Using Violence, Threats, or
Restraints to Influence
Voter.
Seizing Ballot Box.
Destroying Ballot Box or
Ballots.
Inducing Voter to Resign
Petition.
Selling Signature to Peti-
tion.
Fraud at Special Election.
Buying Vote.
Bribing to Secure Election.
Bribery for Nomination.
Short Weights.
Selling Coal by False
Weights.
False Gas Meter.
False Pretense.
Presenting False Claim.
Forgery.
Signing Blank Certificate.
Counterfeiting Coin.
Uttering Counterfeit Coin.
Uttering Counterfeit Coin
v to Circulate.
Having Counterfeit Coin.
Having Counterfeit Appa-
ratus.
Counterfeiting Labels.
Having Dies to Counterfeit
Labels.
Selling Goods with Counter-
feit Labels.
Wearing Badge of Military
Order to Obtain Assist-
ance.
Burning Natural Gas in
Flambeaux.
FailureofRailroadCompany
toProvideWaitingRooms.
Selling Merchandise to Em-
ployees at Higher Prices
than to Others.
Wearing Badge of Secret
Society when not Entitled
to do so.
Failure to Provide Screens
for Employees of Street
Railways.
Marrying to Avoid Prose-
cution for Bastardy or
Seduction.
Horse Racing at Certain
Times.
Permitting Minor to Loiter
about Saloon.
Running Saloon in Connec-
tion with other Business.
Having Devices for Amuse-
ment or Games in Saloon.
74 MORAL LAW AND CIVIL LAW
In all three hundred and twenty.
The foregoing statutes, it can be seen,
are, in most cases, against classes of of-
fenses in which many acts in each class are
included, so that the number of acts forbid-
den is at least one hundred greater than
the number I have given in the subjects
named. Also add to the foregoing enu-
meration offenses defined by acts of Con-
gress against revenue, postal laws, etc.,
which apply in every State. The Legisla-
ture might have passed a sweeping statute
forbidding everything that in its purpose or
effect is against sound morality. It will be
seen that the Legislature has gone so far in
its special definition of forbidden offenses
as to legislate even in restraint of the tem-
per and the tongue. The list of forbidden
acts is growing, not only in the States of
this Union, but with the advancing civili-
zation of every government of the world.
Profanity is immoral, and has been forbid-
den by statute wherever civilization has
reached respectable growth. Profanity was
unlawful at common law, and the only pur-
pose accomplished by a statute upon this
subject is to fix a penalty. It is often urged
that statutes should not be enacted that
PARTS OF THE SAME THING. 75
are in advance of public sentiment, and
that if the law cannot be enforced so as to
repress what it forbids it should be re-
pealed, so as not to cause contempt for all
law. Statutes against profanity are so fre-
quently and so boldly disregarded that they
stand almost as dead letters. No wise man,
however, would favor the abrogation of
these statutes and thereby remove the re-
straint from the brutal tongue. Profanity
was condemned by the Ten Command-
ments more than three thousand years ago,
and has been unlawful ever since by exist-
ing law under civilized conditions. It must
not be overlooked that the commandments
were only civil laws, intended solely for
civil government. They were each in ad-
vance of public sentiment several thousand
years at least, but are each yet maintained
with no prospect of abrogation, as standards
of human conduct required by civil law.
Nations, governments, and innumerable
people have been destroyed because of diso-
bedience to the principles announced, but
the commandments stand unchanged as the
law. No man has a legal right to be im-
moral, or to do any immoral thing where
any person can hear or see his act. He has
76 MORAL LAW AND CIVIL LAW
no legal right to associate with immoral
persons or characters. The civil law can
break open the door to the hiding place of
immorality, disregard all rights of liberty
and property, and drag the offender to the
judgment seat. The recent notorious case
of Oscar Wilde is a good illustration of the
relentless pursuit of civil law after private
sin and immorality and the crushing judg-
ment against it.
The government demands in imperious
terms private and public morality of its
citizens, and undertakes to enforce its de-
mands. It expends fabulous sums of money
to educate and encourage the youth in the
qualities of good citizenship. No stronger
evidence could be adduced of the fixed and
dominating infhience of morality in govern-
ment than the constitutional provisions,
legislative acts, judicial decisions, and set-
tled rules of law upon the subject.
PARTS OF THE SAME THING. 77
CHAPTER V.
LEGISLATION AND MORALITY.
THE purpose of legislation is to provide
for the emergencies of civil govern-
ment. The limits to the power of legis-
lation can be stated in a few words, without
entering into refinements of constitutional
provisions or legal learning. The Legisla-
ture can enact whatever the public necessity
requires to be enacted in order to carry out
the purpose of the government, which is
the promotion of the public welfare, and it
can do no more. As was clearly established
in the second chapter of this work, morality
is the fundamental principle in civil govern-
ment. Therefore the Legislature can, by its
action, do whatever tends to promote mo-
rality ; but any act in antagonism to morality
is void. Every act of the Legislature must
be in harmony with morality.
Certain purposes must be in the mind of
the Legislature in every act — either the en-
couragement and promotion of morality,
intelligence, or business in the dealing,
6
78 MORAL LAW AND CIVIL LAW
associations, and deportment of men, or the
suppression of immorality. It will be found,
upon careful examination of the civil and
penal statutes, that they seek to accomplish
the same ends. They seek to regulate and
provide for the business transactions among
men, so as to avoid conflict, injustice, or
oppression. It will also be found upon care-
ful examination that many of the criminal
statutes are intended to enforce and protect
the provisions of legislation upon business
affairs. It is a great question whether
criminal statutes are not increasing more
rapidly than civil statutes. In fact, if it
were not for the criminal disposition in
business transactions, there would be little
necessity for business regulations by law.
In every government in Europe, as well as
in the United States, the necessity is recog-
nized for greater restraint by law in the
interests of society and business upon im-
morality. A concise expression upon this
subject, which might be multiplied with
many other extracts of similar import, I
quote from the Encyclopedia Britannica,
Vol. XI, page 1 8, what is said as to this
line of legislation in England : ' ' Coercion
for moral purposes. The measures hereto-
PARTS OF THE SAME THING. 79
fore noticed may in general be justified
either on the ground of inability of the per-
sons protected to help themselves, or on the
ground that some good to society as a whole,
or to a large portion of it, is secured
thereby.
' ' Another class of measures openly aims
at the moral importance of the individuals
affected by them, and in this class there is an
amazing and alarming increase. The laws
against gaming are one of the best examples.
At common law a wager was a contract en-
forcablebylaw. Not content with declining
to enforce wagers, the State went further and
tried to put them down altogether. It made
lotteries illegal. It visited with heavy
penalties the keeping of betting houses in
public places, the publication of betting
lists, etc. Games which lead to betting
are put under the restraint of a license sys-
tem, and in some parts of the provinces the
State orders its citizens not to play billiards
after eleven o'clock at night. . . . The State
first of all limits the number of public houses ;
then it dictates directly the hours during
which liquor may be bought and sold ; and
in Scotland and Ireland it goes further, and
prohibits altogether the sale of liquor on
8o MORAL LAW AND CIVIL LAW
Sunday. A committee of the House of
Lords has touched the highest point of
government control in proposing to em-
power local authorities to shut up all the
public houses in their districts and carry on
the business for themselves. There is a
simultaneous increasing tendency to inter-
fere with people's amusements; fairs are
being put down as immoral, music and
dancing require license charily granted, the
grip of the chamberlain over the London
theaters is tightening, and so on.
* ' The course of moral legislation, in fact,
threatens to sweep away every barrier to
the encroachment of the State.
1 ' The extended range of government
interference in other things has been accom-
panied, as we have seen, with a very dis-
tinct recommendation of limits, either in the
rights of the individual conscience or in the
capacity of adult manhood to manage its
own affairs. But acts of Parliament for
improving the moral characteristics of men
seem to recognize no limit at all. And it is
a singular fact that while this kind of legis-
lation under existing social arrangements
fails to affect the well-to-do classes, and op-
presses chiefly the comparatively poor, it is
PARTS OF THE SAME THING. 81
becoming1 more and more identical with
the popular party in politics, and gathers
strength with every addition to the popular
element in government."
The foregoing statement is a carefully
prepared and unbiased article written and
published more than fifteen years ago.
Anyone who has observed the tendency
in Germany, France, and Russia, or
smaller governments in Europe, will
find that what is said of this line of legisla-
tion in England is true of these govern-
ments, though not to the same extent, and
the same is true in the United States and
in various States in this Union. It will
also be found upon careful examination
that the purpose of this line of legislation is
to promote morality and suppress immoral-
ity. We hear the statement made by small
politicians and men who only seek the at-
tainment of personal ends, that men cannot
be made moral by legislation, that morality
should be left to the Church and to religious
teachers or to home training. It is amaz-
ing the extent to which this idea obtains,
not only in politics and partisan expression,
but among all classes of people. It is not
only erroneous, betraying dense ignorance,
82 MORAL LAW AND CIVIL LAW
but is very dangerous. It is to this heresy
we must attribute the treachery, scheming,
and trickery of legislators, and sometimes
of courts and executive offices. The facts
are, morality has everything to do with
legislation, everything to do with the execu-
tive and judicial departments, and every-
thing to do with everything when civil
government is in safe hands.
The great misfortune in legislation is that
each legislative body feels that it is not
governed by ancient, long-settled, and well-
determined rules, that it is largely inde-
pendent and unrestricted by precedents.
Considering the ignorance so often found in
legislative bodies, the utter lack of experi-
ence and the weakness of so many of the
members, the skillful manipulators and
light regard for consequences, it is not
surprising that wise men have dreaded and
feared the work of legislative bodies. Had
it not been for the restraints against the
wrong and the encouragement for the
right that sound morality has thrown over
these bodies, only disaster could have fol-
lowed. There is no branch of the govern-
ment, however, that offers greater encour-
agement to the student than the legislative,
PARTS OF THE SAME THING. 83
notwithstanding the weakness, inexperi-
ence, ignorance, and corrupting influences
and temptation. The history of this branch
of government shows a constant rise in
the scale of morality, whatever may some-
times appear to the contrary. It is con-
stantly illustrated that one man of moral
integrity and average intelligence in a
legislative body is more than the equal of
a score of immoral and depraved members.
Let it not be forgotten, let it be empha-
sized, repeated, emblazoned in the halls of
every legislative body, that morality is a
fundamental principle in legislation, and
but for this principle, this law of nature,
this law of God, this law of man, this good
angel, popular government would fail. Mo-
rality cannot be disregarded by the Legisla-
ture ; it must be regarded, or the action of
the body is void. Moral law was not created
by a legislative body. It was never enacted.
It was not created by the Constitution of the
State or of the nation. Neither the Consti-
tution itself nor the Legislature can disre-
gard it and the action be valid.
The Legislature may not bargain away
the public morals permanently. It may
not do so temporarily. It cannot bargain
84 MORAL LAW AND CIVIL LAW
away the public morals for one year, for
one day, nor for one hour. Neither the
Constitution nor the people themselves can
do this. There is absolutely no power any-
where to bargain away or compromise pub-
lic morality. No man can defeat and
destroy it; it stands as a fundamental
principle. What is meant by the police
power of the State is the unlimited law of
necessity, the authority in the Legislature
and the judiciary and the executive to pro-
tect public morals, public health, public
peace, and public welfare in all regards.
PARTS OF THE SAME THING. 85
CHAPTER VI.
COMMON LAW AND MORALITY.
IN addition to statutory law we have in
Indiana, for our government, the com-
mon law. Sec. 236, Revised Statutes
of 1 88 1, in Indiana, reads as follows:
' ' The law governing this State is declared
to be . . ." Item 4. " The common law,
and statutes of the British Parliament in aid
thereof, prior to the reign of James I (ex-
cept the second section of the sixth chapter
of the forty-third year of Elizabeth and the
ninth chapter of the thirty-seventh, Henry
VIII), and which are of a general nature not
local to that kingdom and not inconsistent
with the first, second, and . third specifica-
tions of this section."
Common law is defined as follows : ' ' The
common law is that which derives its force
and authority from the universal consent
and settled customs of the people. It has
never received the sanction of the Legisla-
ture by express act, which is the criterion
by which it is distinguished from the statute
86 MORAL LAW AND CIVIL LAW
law. It has never been reduced to writ-
ing.
" By this expression, however, it is not
meant that all of these laws are at present
merely oral, or communicated from former
ages to the present solely by word of mouth,
but that the evidence of our common law is
contained in our books and depends on gen-
eral practice and the judicial adjudications
of our courts. The common law is derived
from two sources, the common law of Eng-
land and the practice and decisions in our
own courts. There is no general rule to as-
certain what part of the English common
law is binding. ... It may be observed
generally that it is binding where it has not
been superseded by the Constitution of the
United States or of the several States, or by
legislative enactments, or varied by cus-
tom, and where it is founded in reason and
consonant to the common genius and man-
ners of the people.'' No man can make a
mark at the place or time where the rules of
common law, or any one of them, were
found ; neither can he name the discoverer.
However, as each of these rules has stood
the test of ages and now prevails in Indiana
and elsewhere, and is in perfect accord with
PARTS OF THE SAME THING. 87
the Ten Commandments and the law of
Moses in its general character, it is a blessed
and easy thing for men who believe in the
divine authorship of the Ten Command-
ments to believe that these same rulesof com-
mon law were of divine origin. This theory
takes these rules back to a source of super-
human wisdom. The method of explaining
rules and principles of law as now accepted
by the most profound writers and authorities
upon jurisprudence is the historic method ;
and this method of explanation traces the
rules of common law to the source I have
indicated. Any other theory as to the ori-
gin of these rules and principles of common
law ends in mist and utter dissatisfaction.
The Supreme Court of the United States, in
the case of Baltimore and Potomac Railway
Co. vs. 5th Baptist Church, etc., 108 U.S., 739,
as a conclusion reached upon the somewhat
lengthy consideration of the legal principles
involved in the case, said, ' * The great prin-
ciples of the Christian religion are like the
principles of the common law;" and the
court proceeded in that case to make an ap-
plication of these principles.
In this work I have not stated and shall
not insist, because I deem it unnecessary to
88 MORAL LAW AND CIVIL LAW
the purpose in hand, that Christianity is
part of the law of the land, though that maybe
claimed by a citation of the highest author-
ity. I am presenting the subject of morality
from a different standpoint — from a stand-
point to be accepted by men of any or no
religious belief. The decision of the United
States Supreme Court just cited is important
as declaring the law from the highest judi-
cial tribunal in the land, giving the source
of the moral standard. It is not an open
question, subject to controversy or debate in
either branch of the law, whether statutory
or common law, that morality is the funda-
mental rule and principle by which the law
is regulated.
PARTS OF THE SAME THING. 89
CHAPTER VII.
MORALITY IN CIVIL COURT.
THE moral law, with its rules and stand-
ard established by the learning, ex-
perience, religious teaching, divine
revelation, and judicial decisions of the past,
is as binding upon the citizens as the civil
law, because it is a part of the civil law.
Every legislator, every governor, every
judge, every lawyer, in entering upon the
duties of his office, holds up his hands to-
ward heaven and takes an oath to obey the
constitution and to perform the duties of his
position, so help him God. This appeal for
help to God means something. It is not an
empty form. Either it is blasphemy, in
taking the name of God in vain, or is mock-
ery, or is an idle performance, or it is the most
solemn ceremony that can be performed.
The person by whom this obligation is ad-
ministered and the person to whom it is ad-
ministered are dissembling and are playing
the role of the arrant hypocrite, or else they
are acting the part of the highest citizenship
go MORAL LAW AND CIVIL LAW
and highest patriotism. It is very clear that
Almighty God will not help the legislator,
nor the governor, nor the judge, nor the
attorney in any way to establish, or protect,
or excuse any business, or transaction, or
thing that is against morality. Even if the
Legislature does attempt to give sanction
and confer its authority upon any enterprise
which is immoral in its nature or which re-
sults in immorality, then the governor and
the judge have each an oath registered in
heaven to declare such legislation void.
The United States Supreme Court in the
case of Mugler vs. Kansas, 123 U. S., 205,
has defined the duty of the court in such a
case as follows :
' i The courts are not bound by mere forms,
nor are they to be misled by mere pretenses.
They are at liberty, indeed, are under a
solemn duty, to look at the substance of
things whenever they enter upon an inquiry
whether the Legislature has transcended the
limits of its authority. If, therefore, a stat-
ute purporting to have been enacted to
protect the public health, the public peace,
or the public safety, has no real or substan-
tial relation to these subjects, or is a palpa-
ble invasion of rights secured by the funda-
PARTS OF THE SAME THING. 91
mental law, it is the duty of the court to so
declare, and thereby give effect to the Con-
stitution."
Nothing has contributed to bring courts
and the legal profession into disrepute, there-
by encouraging mobs and white-cap pro-
ceedings, so much as the general impression
that morality has not a place in judicial pro-
ceedings, either in fact or in theory. With-
in the past two years the town of Roby,
Indiana, has become distinguished as a loca-,
tion of enterprises of "stupendous character
for gambling and depravity of all kinds.
I have been greatly interested in the discus-
sion through the public press and in the
expressions quoted from attorneys which as-
sert that these things have been authorized
by an act of the Legislature, and therefore
could not be prevented. It would be very
difficult to ascertain just how such conclusion
was reached. As an illustration, one would
infer that it had been reached by turning
the pages of our statutes looking for an en-
actment concerning Roby, Jackson, and Cor-
bett. Finding no act upon either of these
specifically, it was then declared that, as there
was no act upon this subject, therefore James
Corbett and Peter Jackson could proceed
92 MORAL LAW AND CIVIL LAW
with a prize fight at Roby without any re-
straint from the law. While opinions upon
this basis were being freely given a China-
man was arrested in the city of Indianapolis
for the establishment and maintenance of
an opium-smoking joint. He was brought
before the court upon a criminal charge for
that offense. The same class of attorneys
and self-styled profound investigators of le-
gal principles, figuratively speaking, turned
the pages of the statutes of the State of In-
diana and the ordinances of the city of Indi-
anapolis looking for enactments in regard to
Chinamen and opium-smoking joints. They
found no such laws. They found no allu-
sions to Chinamen or to opium-smoking
joints in the statutes of the State or in the
ordinances of the city ; but the Chinaman
was convicted, fined $500, and sent to the
workhouse for six months. That case was
clearly sustained by law, though not one
word in regard to the offenses charged could
be found in any law book, or statute, or city
ordinance. The penalty, however, was too
severe. The case was founded, and prop-
erly so, upon the immorality of the China-
man's business and its bad affect upon the
public health and public morals. No legis-
PARTS OF THE SAME THING. 93
lative act could be passed that could author-
ize or protect such a business. Neither could
any act be passed, however solemn its form,
that would protect the exhibitions at Roby.
As no act of immorality can be lawful or
protected by legislation, so no decision of a
court can long stand that in any way favors,
protects, or excuses immorality. No act of
the Legislature that contemplates or results
in promoting immorality can be valid.
The judicial is the most important branch
of any government. I have called attention
to the fact in a former chapter that legis-
lative bodies were liable not to feel them-
selves bound by fixed and settled rules or
precedents, and were liable to act upon the
impression of their entire independence.
This can never be the impression under
which courts of justice act. Courts are
bound by rules and principles that have been
recognized and developed by the learning,
experience, and integrity of thousands of
years, and are stronger to-day in their bind-
ing force than they were when Columbus
discovered America. The most salutary
rules of law, or, properly speaking, the most
salutary laws, were never enacted by any
Legislature, but have been developed by
7
94 MORAL LAW AND CIVIL LAW
judicial decisions. These rules have been
settled by the most profound learning and
experience ; have been thoroughly consid-
ered, tested, applied to emergencies, and
are established. Courts, in the application
of these rules, have differed sometimes,
misapplied, overruled their own decisions,
and readjusted their views to meet the re-
quirements of these great principles.
We have often had occasion in Indiana,
as has been the case in other States, to ap-
ply the rules of common law to questions
where there has been no statutory provision,
and these emergencies are likely to arise in
all the future. There is one distinct, well-
defined principle running through the civil
law — the law of Rome — reaching beyond the
Christian era, older than constitutions and
republican forms of government, and main-
tained continuously down through all exist-
ing systems by judicial tribunals, that moral-
ity is to be conserved in all judicial actions.
It is true that the comprehension of morality
was sometimes vague, yet, as comprehended,
it was regarded as fundamental. The time
and attention of courts, in the United States
especially, are very largely required in an
effort to construe and apply well-settled rules
PARTS OF THE SAME THING. 95
of law to crude and badly-considered legis-
lative acts, considered and passed by legis-
lative bodies composed of men who know
little or nothing of legal principles. How-
ever ignorant or depraved the Legislature
may be, courts are bound to accept its acts
as the law, if they are harmonious with the
Constitution, by using all presumptions in
their favor that are consistent with funda-
mental principles.
The government expects and demands
the exertion of each of its departments in
one harmonious effort to promote the pur-
poses for which it exists. The departments
of government — executive, legislative, and
judicial — can only act legally within the re-
spective scope of each department. Each,
however, has to do with the enactment of
laws, so far as legislation is concerned.
The judicial department, however, has not
only the duty and responsibility of con-
struing and declaring and settling the law
as it is represented in legislative acts, but
has also to apply these ancient principles of
the common law in many cases, and, in ad-
dition thereto, the rules of what is generally
termed " public policy;" in other words,
" The law of public necessity." The rules
96 MORAL LAW AND CIVIL LAW
of public policy, or, what is the same thing,
the law of public necessity, are limited only
by the extent of the necessity. There is
set up before each department of the gov-
ernment, however, a standard for its guid-
ance. This standard is public morality.
It must measure and weigh every act. It is
the one standard, and the only one, that
commands obedience in all respects.
In 1840 the Supreme Court of Indiana
was composed of three judges, each of re-
markable ability and high moral and re-
ligious character. Without disparagement
to the reputation of any of the learned and
good men who have occupied the Supreme
Bench in our State, I can assert, without
offense, that that high court has never been
composed of men superior in all regards to
Judges Isaac Blackford, Jeremiah Sullivan,
and Charles Dewey.
In the case of Watts, et al. vs. Pratt, 5th
Blackford, 337, Judge Dewey delivered the
unanimous opinion of the court in concise
and clear language, defining the rule of law
governing courts in such cases, in the fol-
lowing language : ' * The subject of this
law is to protect the public morals and pre-
serve the peace and quiet of society ; being
PARTS OF THE SAME THING. 97
designed for the public good, it should be
so construed as to promote it."
I quote again in this place what I have
previously quoted from the Supreme Court
of the United States, because, this being the
highest tribunal in the nation, its decision
must be taken as the settled law, and I need
not support the proposition further by the
citation of many cases, as I would otherwise
feel compelled to do. The court defines the
duties of courts as follows :
' ' The courts are not bound by mere
forms, nor are they to be misled by mere
pretenses. They are at liberty, indeed, are
under a solemn duty, to look at the substance
of things whenever they enter upon an in-
quiry whether the Legislature has tran-
scended the limits of its authority. If, there-
fore, a statute purporting to have been en-
acted to protect the public health, the public
peace, or the public safety, has no real or
substantial relation to these subjects, or is a
palpable invasion of rights secured by the
fundamental law, it is the duty of the court
to so declare, and thereby give effect to the
Constitution."
What is designated in law as public policy
is a matter of such uncertainty, and about
98 MORAL LAW AND CIVIL LAW
which there is so little general information,
that I feel called upon to offer some explana-
tions of this term, because it is the duty of the
courts to determine what is public policy,
and where it applies. In American and
English Encyclopedia of Law, Vol. IX, page
880, under the heading " Public Policy Ex-
plained," the following explanation is given:
' * This term is equivalent to the policy of
the law. It is applicable to the spirit as
well as to the letter. Whatever tends to in-
justice or oppression, restraint of liberty,
commerce, and natural or legal rights, what-
ever tends to the obstruction of justice or
to the violation of the statute, and whatever
is against good morals when made the ob-
ject of a contract, is against public policy,
and therefore void, and not capable of en-
forcement. A form of contract may be legal
on its face. There may be parties, compe-
tent, willing, and agreed upon the subject-
matter, who enter into an agreement to do
or not to do, with an apparently fair con-
sideration stipulated, but their agreement is
null and futile if its object is judicially im-
moral or against the policy of law. ... In
construing contracts, courts hold entirely
void those that are partly illegal in their
PARTS OF THE SAME THING. 99
object. Legal stipulations are treated as
unwritten when interwoven with others
designed to controvene the law, or tending
to that end. An illegal consideration will
not be analyzed or dissected so as to sepa-
rate good simples from bad, when the com-
pound is noxious, rendering the object of
the contract unlawful."
Bishop, on Contracts, sec. 467, speaking
of the rule of law as applied by courts, says :
11 Contracts, illegal or of evil tendency,
immoral or contrary to the policy of the law,
or to public policy ; agreements between
parties to do a thing prohibited by law, or
subversive of public interest, which the law
cherishes ; forbiddeneitherbythe common or
the statutory law, whether it is malum in se,
or merely malum prohibitum, indictable or
only subject to the penalty of forfeiture ; or
however otherwise prohibited by statute or
the common law," are void.
Courts look at the result from the execu-
tion of contracts, and if they result in im-
morality they are void, though they may
seem to be harmless. In the case of Riley
vs. Gordon, 122 Mass., 231, the court says:
" A contract may be illegal, though fair
on its face."
ioo MORAL LAW AND CIVIL LAW
No gambling contract or contract having
an immoral consideration or contract to com-
pel the performance of an immoral act, nor
the payment of money for an immoral act
performed, can be enforced in court. It is
a maxim of the law, especially of equity,
that the litigant who institutes an action
in court must come with clean hands.
PARTS OF THE SAME THING. 101
CHAPTER VIII.
THE LAW GROWS.
AS has been said before, legal principles
are fixed. They are the same now
as they were when Caesar crossed
the Rubicon. But while this is true, it
often happens that the scales of justice are
not held sufficiently steady to exactly weigh
civil conduct in accordance therewith. In
other words, it often happens that courts
of justice, like merchants, give short weight.
There will never be any change in these
principles. Courts make decisions, after-
ward modify, criticise, and overrule the
same, in their effort to properly apply legal
principles to given questions. Legislative
bodies are constantly acting, not upon new
principles, but upon the necessity of apply-
ing old principles by new methods to mat-
ters of emergency, and thereby the law
grows through legislation. It grows also in
spite of legislation, even to the extent of
annulling and setting aside legislative acts.
The law grows with the growth of general
io2 MORAL LAW AND CIVIL LAW
intelligence and public necessity. What
was the law ten years ago, as interpreted by
the courts at that time, may not be the law
to-day, though no legislation has interposed,
and no decision of a court has in fact been
made. It often becomes apparent, upon
some sudden light being thrown upon the
matter of conduct or business or social en-
terprise, that courts are constrained to
render decisions which attract wide atten-
tion because of public interest in the ques-
tions involved, and the new application of
old legal principles. This is the field where
erudition and judicial minds exhibit distin-
guished qualities, gain renown, and the
work of courts is seen to the best ad vantage.
I can present my proposition best by way of
illustration.
A native was captured on the coast of
Africa, and brought to Virginia and sold as
a slave. His name was James Somerset.
Charles Stewart became his owner. In 1 770
Stewart took his slave with him to England
as a body servant. While there, the slave
became influenced by the teaching and ed-
ucation of persons who declared that a slave
could not be legally held in England. He
refused to obey his master and denied the
PARTS OF THE SAME THING. 103
relationship of master and slave. He was
seized, put in chains, placed on board a
ship to be sent to Jamaica. Before the ship
had sailed Thomas Watkins, Elizabeth
Cady, and John Marlow, three Quakers,
made an affidavit in the court of the King's
Bench, the highest court in England, that
Somerset was unlawfully imprisoned. A
writ of habeas corpus was issued against the
ship's captain and the master, commanding
them to produce the body of the slave in
court. These persons, in answer to the
writ, stated the facts, as they claimed them
to be, of the relationship of master and
slave and the insubordination. The legal
questions involved were argued by very able
counsel on each side before that high court,
and the case was held under consideration
for about a year and a half. The court
went so far as to suggest to the master that
it would be better that the case should be
disposed of without pressing it to a decision,
and even suggested that it would be better
that this slave should be released than that
the property in all the slaves in England
should be jeopardized. However, the mas-
ter could not be made to believe, even by
the unusual and remarkably suggestive state-
104 MORAL LAW AND CIVIL LAW
ment of the court, that it could be possible
that the court could decide against him and
his rights to property in and control of the
slave. For more than fifty years slavery
had been sanctioned in England by judicial
decisions and public recognition. During
that period Lords Hard wick, Talbott, and
York, at different times, had decided that
slavery was a legal institution. For about
thirty years members of the Quaker society,
and finally the body of that society, had de-
clared against the institution of slavery as
inhuman, immoral, ungodly, and unlawful.
Other religious teachers and persons had
been crying out against the institution. At
the time when these legal proceedings were
had, public sentiment against the institu-
tion, because of its immorality, had become
aroused. It was argued on behalf of the
master that the law upon this question was
settled by the judicial decisions made at
different times and of long standing, and
that public acquiescence, public necessity,
and public policy demanded the mainte-
nance of the institution. The consequences
of a decision against the master were por-
trayed in the most alarming expressions,
and predictions were made of the most dire
PARTS OF THE SAME THING. 105
consequences to commerce, business, social,
and domestic relations, if this long-settled
order of things and legal status should be
disturbed. The influence of the wealthy,
of royalty, great business enterprises, polit-
ical and social interests, were arrayed with
the master and against the slave. So strong
was the showing made in these regards
that the court seems to have been seriously
affected thereby. Lord Mansfield, chief
justice of that court, perhaps the most fear-
less man who ever sat on the King's Bench
in England, showed his apprehension when
he contemplated the consequences of a de-
cision and, I think the only time in all his
history, sought to avoid rendering the judg-
ment of the court. In the argument of the
counsel on behalf of the slave, one of them,
speaking of the growth of public sentiment
upon this subject, said, " Upon this subject
the air of England has been clearing since
the reign of Elizabeth."
Every precedent and decision that could
be cited in the case was in favor of the
master. It was a fact, entitled to very
great influence in the case, that the public
had sanctioned the institution of slavery
and decisions in its favor by acquiescence
io6 MORAL LAW AND CIVIL LAW
for so long a period. In behalf of the slave
there was not a precedent. In his interest
it was asked that the settled order of things
for this long period should be broken up,
that more than fifteen thousand slaves in
England, those in Ireland, more than one
hundred and sixty-six thousand in Jamaica,
should be liberated by a sudden decision of
that high court upon a legal proposition,
which had as its sole foundation the claim
that the institution of slavery was illegal,
because it was inhuman and immoral in its
very nature and results and could not be
made lawful by any decision of the courts
or by any acquiescence and sanction of the
public, however numerous these decisions
and however long standing had been the
public acquiescence.
The attorneys for that black man appealed
to the principles as presented in the Scrip-
tures, the Christian religion, and by reli-
gious teachers and common humanity. There
is no other case like this, ancient or mod-
ern, before a judicial tribunal in which what
maybe termed the "cold law" alone was
clearly and fully presented on one side and
only the hot blood of moral principles pre-
sented on the other. On behalf of the mas-
PARTS OF THE SAME THING. 107
ter counsel could read from law books, could
appeal to the teaching of law schools, and
could cite the precedent of history.
On behalf of the slave there was no voice
from the law; there were no law books.
The court held the case under considera-
tion until ample time was given to consider
it from a legal standpoint and from a moral
standpoint. The year and a half when the
case was before the court was a period in
which the great legal principles of morality
were at work in the government. The
business, social, and financial interests of
the English government were excited on
account of the question as to whether a case
in court should be decided for the master or
for the liberty of the black man. There,
before that court, was the master, surrounded
by such a powerful influence as perhaps no
litigation in that highest court had ever
presented. There was the black man with
his claims, supported only by the disinter-
ested and benevolent zeal of Christian sen-
timent. The day came when the judges were
on the judgment seat and the master and
the slave were brought before them, and the
judgment was pronounced. It looks now,
as it looked then, a very unequal and unprom-
io8 MORAL LAW AND CIVIL LAW
ising struggle on behalf of the slave. It has
been said of Lord Mansfield, who delivered
the decision of the court in this case, that he
decided all cases with a clear head but a cold
heart. In this case, however, he seemed to
have maintained his reputation for a clear
head, but the evidence of a warm heart is
also apparent. I quote this decision in part,
sufficient to present in the most concise way
its substance : ' * The state of slavery is of
such a nature that it is impossible of being
introduced on any reason, moral or political.
. . . The setting fourteen thousand or fifteen
thousand men at once free, loose, by a sol-
emn opinion is much disagreeable in the
effects it threatens. ... If the parties will
have judgment, fiat justitia, ruat 'ccelum
(let justice be done, whatever be the conse-
quence). Fifty pounds a head may not be a
high price ; then a loss follows to the pro-
prietors of above seven hundred thousand
pounds, sterling. How would the law stand
with respect to their settlement — wages?
How many actions for any slight coercion
by the masters? We cannot in any of these
points direct the law. The law must rule
us. In these particulars it may be matter
of mighty consideration what provisions
PARTS OF THE SAME THING. 109
are made or set by law. Mr. Stuart may
end the question by discharging or giving
freedom to the Negro. I did think at first
to put the matter to a more solemn way of
argument. But if my brothers agree there
seems no occasion. I do not imagine, after
the point has been discussed on both sides
so extremely well, any new light could be
thrown on the subject. If the parties
choose to refer it to the Common Pleas they
can give them that satisfaction whenever
they think of it. An application to Parlia-
ment, if the merchants think the question
of great commercial concern, is the best
and perhaps the only method of settling the
point for the future. . . . Whatever incon-
veniences therefore may follow from a de-
cision, I cannot say this case is allowed or
approved by the law of England ; and there-
fore the black man must be discharged"
(Loft's Report. Second Case).
Believers in the Scriptures accept the ac-
count of divine deliverance of Joseph from
slavery and prison and promotion and ruler-
ship in Egypt, and the deliverance of the
three Hebrews from the burning fire, and
Daniel from the lions' den. In each of these
cases special divine interposition is reported.
8
no MORAL LAW AND CIVIL LAW
In the case of Charles Somerset, the slave,
the decision was not in accordance with the
letter or spirit of the schools of law, law
books, decided cases, or intellectual process
of that day. A remarkable overpowering
influence from some source came upon the
mind of the court — a court never surpassed
in the world's history for intelligence. Ad-
vancing civilization threw a greater light
upon that question, and thereby revealed
what courts had never been able to see
before.
We are not driven to the necessity of
claiming special divine interposition in be-
half of the slave in this case. The great
principle of public morality is strong enough,
has in it such overpowering influence as that
it is sufficient for any great emergency like
this, when it has had due course. Doc-
trines recognized and declared to be the
law in that case are identical with the doc-
trine taught by Christian teachers, by the
Quaker Church, William Wilberforce, John
Wesley, and many other great leaders, and
were in accordance with the prayers and
urgency of devout people, though they
stood in conflict with what were recognized
as legal precedents. Where did these peo-
PARTS OF THE SAME THING. in
pie get these doctrines which they had suc-
ceeded in enforcing in such a wonderful
degree and with such amazing success? I
need go no further in my claim in this case
than that the secret of this most renowned
decision, the consequence of which will
never end, was simply the application of
the principles of sound morality to a ques-
tion in civil courts. The court, in this de-
cision, made the doctrines as taught by
these religious teachers the law of the land,
as against the doctrines as taught by the
schools of law, the law books, precedents,
and decisions. That decision set free all
the slaves within the jurisdiction of that
court, and a Christian civilization so ad-
justed all the affairs, public and private,
that the consequences never made a jar.
One hundred and twenty-five years have
gone by since that decision was rendered.
The consequences have flown like a bene-
diction in the pathway of mankind during
all this period. That decision, as a prec-
edent, has gone like a divine influence into
the affairs of men. The judges who ren-
dered it have gone to their reward, and in
the great day of final judgment need not
fear condemnation for that act.
ii2 MORAL LAW AND CIVIL LAW
In 1807 the Indiana Territorial Legisla-
ture chartered the Vincennes University, at
Vincennes, Indiana. In that charter there
was a section as follows : * * And be it further
enacted, That for the support of the aforesaid
institution, and for the purpose of procuring
a library and the necessary philosophical
and experimental apparatus, agreeably to
the eighth section of this law, there shall be
raised a sum not exceeding twenty thou-
sand dollars, by a lottery, to be carried into
operation as speedily as may be after the
passage of this act, and that the trustees
of the said university shall appoint five dis-
creet persons, either of their body or other
persons, to be managers of the said lottery,
each of whom shall give security, to be ap-
proved of by said trustees, in such sum as
they shall direct, conditioned for the faith-
ful discharge of the duty required of said
managers, and the said managers shall have
power to adopt such schemes as they may
deem proper to sell the said tickets and lo
superintend the drawing of the same and
the payment of the prizes," etc. The pres-
ent Constitution of Indiana, adopted in
1851, prohibits lotteries. The Supreme
Court of Indiana, in 1879, in tne case of
PARTS OF THE SAME THING. 113
Kellum vs. The State, 66 Indiana, 588, held
that under the charter to the Vincennes
University the lottery provision had be-
come a vested right and could not be dis-
turbed even by a constitutional provision.
This decision attracted wide attention in
Indiana, and was the cause of much public
discussion. The people of Indiana had be-
come much aroused upon the question of
the morality of the lottery business.
Churches were declaring in the form of
resolutions and other action against the
business. The better class of people were
antagonizing it. There was a great and
rapid growth of public sentiment upon this
question. In 1883, in the case of the State
vs. Woodard, 89 Indiana Reports, no, the
question of the legality of the lottery pro-
visions in the Vincennes charter, the iden-
tical question that had been before the
court in 1879 was again presented, and the
court was again called upon to consider the
question. No act of the Legislature had
intervened since the former decision. In
the interval between the former decision and
the presentation of the question again the
decision of the Supreme Court of the United
States, in the case of Stone vs. Mississippi,
ii4 MORAL LAW AND CIVIL LAW
101 U. S. Reports, 814, had been ren-
dered, in which that court held that the lot-
tery business was an immoral business and
could have no vested rights. When the Su-
preme Court of Indiana looked a second time
at the question they saw in it the principle
involved, what the court did not see in the
former decision, not because there was any
new principle involved, but because by the
reason of the growth of public sentiment
and legal knowledge the court was enabled
to see what it was unable to see before in
the same question. In the latter decision
the court disregarded all the precedents
which it had cited, all the argument which
it had made, all its own reasoning in the
former case, overruled its former decision,
and decided that the lottery provision in the
Vincennes University was void, and that the
lottery business could not be conducted by
the trustees or anyone else for that institu-
tion, because of the immorality of the busi-
ness itself.
At the close of the opinion of the court in
this last case in Indiana, which was written
by Judge Wordon, the reporter adds the
following note : ' ' This was the last opinion
written by Hon. James B. Wordon." Judge
PARTS OF THE SAME THING. 1 1 5
Wordon was one of the judges who had
concurred in the opinion of that court four
years before expressing exactly the con-
trary opinion.
Slavery had existed in the United States,
had been recognized by the courts, includ-
ing the Supreme Court of the United States,
and by the people of the United States, as
a lawful institution for more than two hun-
dred and fifty years. It was so firmly es-
tablished and so influential that men in
public positions hazarded their personal
safety by even suggesting that it ought to be
legally interfered with. There was no pros-
pect in the least of taking any step whatever
to disturb it as an institution. The Supreme
Court of the United States even had be-
come so dominated and subjugated by the
influences of that institution that for some
time it disregarded every settled and fixed
fundamental principle of law and morality,
and in the face of the great precedent in
the case of Somerset vs. Stewart, to which
I have referred, decided by the King's
Bench in England, by which slavery had
been abolished, and decided that the black
man had no rights that the white man
was bound to respect. The decision in the
ii6 MORAL LAW AND CIVIL LAW
English case fell like a benediction, and has
gone into every civilized government with
its great influence, and shall shine brighter
and brighter forever.
The case of Dred Scott vs. John F. A.
Stanford, decided in 1857, more than eighty
years after the English case, by the Su-
preme Court of the United States, going to
the extreme against the rights of the colored
man and in favor of the inhuman and im-
moral institution of slavery, aroused the
antagonism and warlike spirit of a large
class of people, and was one of the greatest
factors in producing civil war in the United
States.
Notwithstanding this decision of our own
highest court, notwithstanding the fact that
no legislation interfering with the existence
of slavery was possible in the United States,
notwithstanding the claim, and general ac-
quiescence therein, that the government of
the United States could not interfere with
the institution of slavery in the States where
it existed by legislation or otherwise, yet
there came a day when the education of the
people of the nation, under the excitement
of those stirring days, had so rapidly ad-
vanced that under the law of public neces-
PARTS OF THE SAME THING. 117
sity Abraham Lincoln, by one stroke, as
chief executive of the nation, could and did
destroy that institution, as a war necessity,
for the preservation of the government.
The growth in the comprehension of the
law concerning that institution from 1861
to 1863 was greater than the growth of edu-
cation upon that subject for the two hun-
dred and fifty years previous.
Ten years after the close of the civil war
one of the most distinguished writers and
statesmen in the nation prepared and caused
to be published an article, in which he as-
serted that slavery, in fact, had never been
abolished in the United States, because
Abraham Lincoln, as president, had no
authority for issuing the Emancipation
Proclamation, and that the proclamation
was void. The article, however, only served
to remind the people of what had once been
the public impression, and how great had
been the growth of education upon that
subject, and caused a smile at the temerity
of the writer.
A case was recently presented to the Su-
preme Court of Indiana in which a widow
had brought suit against a saloon keeper
and his landlord for damages done to the
ii8 MORAL LAW AND CIVIL LAW
widow's property, and the enjoyment of her
home, by the establishment and maintenance
of a saloon adjoining her residence. The
defendants pleaded a license under the law
of the State authorizing the saloon business.
The license law of the State of Indiana made
no exception as to locality, and the saloon
keeper flaunted his license in the face of the
widow with the utmost confidence that she
was powerless and without relief under the
law. This particular question had never
before been presented to any court. Our
Supreme Court, in its first decision upon that
question, held that the widow was not enti-
tled to any relief. A petition for rehearing
was presented, considered, and sustained.
The court having thus opened the case for re-
consideration gave to the question presented
remarkable and very unusual attention, and
finally decided ; first, that the widow had a
right of action ; second, that the saloon
keeper and also his landlord, who had leased
the property for saloon purposes, were each
liable for damages ; third, that the license
was no protection to the business in that lo-
cality; fourth, that an orderly saloon in an
orderly residence neighborhood is, per se, a
nuisance. In reaching these conclusions the
PARTS OF THE SAME THING. 119
court was compelled to disregard and annul
largely the letter of the license law ; to de-
clare that no statute could authorize by its
provisions or give its protection to any act
or business such as the business in the case
presented ; that the saloon business is offen-
sive to good morals and sound sentiment.
This decision is without precedent upon the
issue presented. The decision is a depar-
ture from the view of the law and of the
business as heretofore taken. This decision
most forcibly illustrates the growth in the
view of the law upon this subject. The
Legislature of Indiana can grant no relief
from the effect and consequences of this de-
cision, for the reason that rights of property
and enjoyment of the same as recognized in
the decision cannot be interfered with with-
out compensation. See Haggart et al vs.
Stehlin et al, 137 Ind., 43.
We have just recently had fine exhibitions
of the growth of the law exhibited in regard
to prize fighting.
In January, 1894, a prize fight between
James J. Corbett and Charles Mitchell was
duly advertised to be given in the State
of Florida. The governor called out the
militia to prevent the immoral and demoral-
i2o MORAL LAW AND CIVIL LAW
izing exhibition. A court of justice, upon
application, issued an injunction against
the use of the militia for the purpose for
which it had been called, declaring that
there was no law in Florida against prize
fighting, and thereby prevented all inter-
ference on the part of the State troops and
the police authorities. The Governor of
Texas, on being informed by his attorney
general in the month of October, 1895, that
there was no law in Texas to prevent prize
fighting, assembled the Legislature of the
State to meet the emergency, and within
three hours after that body was organized
a law had been passed and signed by the
governor forbidding such brutal exhibi-
tions. Within less than one month after
this enactment in Texas, in response to the
public demand of advanced civilization,
when the same exhibition was undertaken
to be given in the State of Arkansas, the
chief executive, his attorney general, and
the court decided upon, and put in execu-
tion, judicial process, and prevented the
same, not upon an act of the Legislature,
but upon a construction of the law as it had
existed ever since the organization of the
State, and provisions almost identical with
PARTS OF THE SAME THING. 121
those that had had long existence in the
States of Florida and Texas, the provisions
of which were ample to have met the emer-
gency in either of these States, if properly
construed, to prevent a prize fight.
The force of public opposition has thrown
such a light upon the real character
and demoralizing influences of prize fight-
ing that the law, as it is, has grown to meet
the emergency, until prize fighting is clearly
unlawful in every State in the Union. Na-
tional and State Constitutions grow with the
experience and enlightenment of men. The
word "morality" itself is a thing of growth.
This word means much more than it once
did, and some day will mean a vast deal
more to us than it does now. Growth in the
comprehension of no word, perhaps, has
broadened more in recent years than the
word "cruelty." Its scope now covers
many subjects and a wide field. There was
a time when a man could lawfully whip his
wife in moderation, beat his children to the
limits of brutality, and kill his slave or
his animals with impunity, without being
charged with cruelty. We have now reached
the point in our comprehension of this word
where it is dangerous for a man to kick his
122 MORAL LAW AND CIVIL LAW
own dog, fail to feed his own horse, or even
threaten to strike his own wife. There was
a time when the word "cruelty" had its own
particular and narrow meaning. Now it is
merely one of the branches of immorality.
A cruel man is a bad man, and a bad man
cannot be a moral man.
I have said that the law grows. I have
made this declaration in this form for con-
venience and for the purpose of making
myself more easily understood. Strictly
speaking, the law does not grow, but the
comprehension of legal principles does
grow. Principles as set forth in the Ten
Commandments will be no greater in the
day of final judgment than when they were
written down in the presence of Moses on
tables of stone, but every generation will
learn something new concerning these prin-
ciples and will see in them what has not
been seen before. The history and growth
in the comprehension and meaning of the
word "morality" is a most fascinating study.
Nothing short of the historic evolution of
morality for two thousand years can furnish
full comprehension of its meaning. The
volumes that have been written upon this
subject would make such a weight as few
PARTS OF THE SAME THING. 123
men could carry at one time. The word
"morality," as used in the Constitution of
Indiana and the Constitutions of other States
and in the judicial decisions of other States,
must be held by faithful judges to contem-
plate all that ever can be found at any time by
the most profound research under the most
brilliant light within its boundaries. Civil
law is not founded upon any military, mar-
tial, business, or social ideas. The abiding
and fundamental principle in civil law is
morality, with its honesty, fair dealing, and
justice to all men. The historic method of
explanation of legal principles which is the
method accepted by courts that are well in-
formed on legal principles has narrowed
and changed the meaning of many words,
and even dropped some words and whole
expressions out of definitions, but this
method has, for three thousand years,
steadily, but never as rapidly as within
recent years, developed, enlarged, and
strengthened the word "morality." I ven-
ture to prophesy for the future that the
word "morality" will respond to the in-
quiries of faithful courts by the revelation
of many beautiful and most important ideas
heretofore and now unseen. Writers on all
124 MORAL LAW AND CIVIL LAW
branches of the law well know that the indi-
vidual statements of legal propositions have
little weight. Therefore it is not only the
most common custom, but an absolute neces-
sity, that any writer should fortify his state-
ments by quotations from good authority. I
have heretofore quoted from Austin's works
on jurisprudence, because he is perhaps the
bestauthority on historic developmentof legal
principles, and his high authority is univer-
sally recognized by the legal profession.
I feel that I can do no better in closing
this chapter than to quote at some length
from this high authority. In doing so let
me call special attention to the fact that the
author, in what I shall quote, is not merely
lecturing upon the subject, but is consider-
ing, from a legal standpoint, the subject of
"morality." He uses the words " ethics"
and " ethical," meaning by these words ex-
actly what was then and is now meant by
the word " morality." This is shown in his
work, and also in quotations made from him
in another chapter of this work.
In Vol. I, pp. 137-138, this author says:
' ' If the elements of ethical science were
widely diffused, the science would advance
with proportionate rapidity.
PARTS OF THE SAME THING. 125
14 If the minds of the many were informed
and invigorated, their coarse and sordid
pleasures and their stupid indifference
about knowledge would be supplanted by
refined amusements and by liberal curiosity ;
a numerous body of recruits from the lower
of the middle classes, and even from the
higher classes of the working people, would
thicken the slender ranks of the reading and
reflecting public, the public which occupies
its leisure with letters, science, and philoso-
phy ; whose opinion determines the success
or failure of books, and whose notice and
favor are naturally courted by the writers.
' ' And until that public shall be much ex-
tended, shall embrace a considerable portion
of the middle and working people, the sci-
ence of ethics, with all the various sciences
which are nearly related to ethics, will ad-
vance slowly.
" It was the opinion of Mr. Locke, and I
fully concur in the opinion, that there is no
peculiar uncertainty in the subject or matter
of these sciences ; that the great and extraor-
dinary difficulties by which their advance-
ment is impeded are intrinsic, are opposed by
sinister interests or by prejudices which are
the offspring of such interests ; that if they
9
126 MORAL LAW AND CIVIL LAW
who seek or affect to seek the truth would
pursue it with obstinate application and with
due * indifferency ' they might frequently hit
upon the object which they profess to look
for. Now, few of them will pursue it with
this requisite ' indifferency ' or impartiality
so long as the bulk of the public which de-
termines the fate of their labors shall con-
tinue to be formed from the classes which
are elevated by rank or opulence, and from
the peculiar professions or callings which
are distinguished by the name of ' liberal.'
In the science of ethics, and in all the various
sciences which are nearly related to ethics,
your only sure guide is general utility. If
thinkers and writers would stick to it
honestly and closely they would frequently
enrich these sciences with additional truths
or would do them good service by weeding
them of nonsense and error. But since the
peculiar interests of particular and narrow
classes are always somewhat adverse to the
interests of the great majority, it is hardly
expected of writers whose reputation de-
pends upon such classes that they should
fearlessly tread the path which is indicated
by the general well-being.
* ' The indifferency in the pursuit of truth
PARTS OF THE SAME THING. 127
which is so earnestly inculcated by Mr.
Locke is hardly to be expected of writers
who occupy so base a position; knowing
that a fraction of the community can make
or mar their reputation, they unconsciously
or purposely accommodate their conclusions
to the prejudices of that narrower public,
or, to borrow the expressive language of the
greatest and best of philosophers, they be-
gin with espousing the ivell-endoived opinions
in fashion, and then seek arguments to
show their beauty or to varnish or disguise
their deformity."
Also in same volume, at pages 141 to 143 :
"This patience in investigation, this dis-
tinctness and accuracy of method, this free-
dom and ' indifferency ' in the pursuit of the
useful and the true, would thoroughly dis-
pel the obscurity by which the science is
clouded, and would clear it of most of its
uncertainties. The wish, the hope, the pre-
diction of Mr. Locke would in time be ac-
complished, and * ethics ' would rank with
the sciences which are capable of demonstra-
tion. The adepts in ethical as well as in
mathematical science would certainly agree
in their results, and as the jar of their con-
clusions gradually subsided a body of doc-
128 MORAL LAW AND CIVIL LAW
trine and authority to which the multitude
might trust would emerge from the exist-
ing chaos. The direct examination of the
multitude would only extend to the ele-
ments and to the easier though more mo-
mentous of the derivative practical truths.
But none of their opinions would be adopted
blindly, nor would any of their opinions be
obnoxious to groundless and capricious
change. Though most or many of their
opinions would still be taken from authority,
the authority to which they would trust
might satisfy the most scrupulous reason.
In the unanimous or general consent of numerous
and impartial inquirers they would find that
mark of trustworthiness which justifies re-
liance on authority wherever we are de-
barred from the opportunity of examining
the evidence for ourselves.
" With regard, then, to the perplexing
difficulty which I am trying to solve or ex-
tenuate the case stands thus :
< ' If utility be the proximate test of posi-
tive law and morality, it is simply im-
possible that positive law and morality
should be free from defects and errors.
Or (adopting a different though exactly
equivalent expression), if the principle of
PARTS OF THE SAME THING. 129
general utility be our guide to the divine
commands, it is impossible that the rules of
conduct actually obtaining among mankind
should accord completely and correctly with
the laws established by the Deity. The in-
dex to his will is imperfect and uncertain.
His laws are signified obscurely to those
upon whom they are binding, and are sub-
ject to inevitable and involuntary miscon-
struction.
' ' For, first, positive law and morality,
fashioned on the principle of utility, are
gotten by observation and induction from
the tendencies of human actions ; from what
can be known or conjectured, by means of
observation and induction, of their uniform
or customary effects on the general hap-
piness or good. Consequently till these
actions shall be marked and classed with
perfect completeness, and their effects ob-
served and ascertained with similar com-
pleteness, positive law and morality, fash-
ioned on the principle of utility, must be
more or less defective and more or less
erroneous. And these actions being in-
finitely various and their effect being in-
finitely diversified, the work of classing
them completely and of collecting their
130 MORAL LAW AND CIVIL LAW
effects completely transcends the limited
faculties of created and finite beings. As
the experience of mankind enlarges, as
they observe more extensively and accu-
rately and reason more clearly and pre-
cisely, they may gradually mend the defects
of their legal and moral rules, and may
gradually clear their rules from the errors
and nonsense of their predecessors. But
though they may constantly approach, they
certainly will never attain to a faultless
system of ethics, to a system perfectly in
unison with the dictates of general utility,
and therefore perfectly in unison with the
benevolent wishes of the Deity.
* ' And, secondly, if utility be the proxi-
mate test of positive law and morality, the
defects and errors of popular or vulgar
ethics will scarcely admit of a remedy. For
if ethical truth be a matter of science, and
not of immediate consciousness, most of the
ethical maxims which govern the sentiments
of the multitude must be taken without
examination from human authority. And
where is the human authority upon which
they can safely rely ? Where is the human
authority bearing such marks of trust-
worthiness that the ignorant may hang
PARTS OF THE SAME THING. 131
their faith upon it with reasonable assur-
ance ? Reviewing the various ages and the
various nations of the world, reviewing the
various sects which have divided the opin-
ions of mankind, we find conflicting maxims
taught with equal confidence and received
with equal docility. We find the guides of
the multitude moved by sinister interests
or by prejudices which are the offsprings of
such interests. We find them stifling in-
quiry, according to the measure of their
means; upholding with fire and sword or
with sophistry, declamation, and calumny
the theological and ethical dogmas which
they impose upon their prostrate disciples.
Such is the difficulty. The only solution
of which this difficulty seems to admit is
suggested by the remarks which I have
already submitted to your attention, and
which I will now repeat in an inverted and
compendious form.
' ' In the first place, the diffusion of ethical
science among the great bulk of mankind
will gradually remove the obstacles which
prevent or retard its advancement. The
field of human conduct being infinite or
immense, it is impossible that human under-
standing should embrace and explore it com-
132 MORAL LAW AND CIVIL LAW
pletely. Butby the general diffusion of knowl-
edge among the great bulk of mankind, by
the impulse and the direction which the dif-
fusion will give to inquiry, many of the de-
fects and errors in existing law and immo-
rality will in time be supplied and corrected.
' * Secondly, though the many must trust to
authority for a number of subordinate truths,
they are, competent to examine the elements
which are the groundwork of the science of
ethics, and to infer the more momentous of
the derivative practical consequences.
1 ' And, thirdly, as the science of ethics ad-
vances and is cleared of obscurity and uncer-
tainties, they who are debarred of opportuni-
ties of examining the science extensively will
find an authority whereon they may ration-
ally rely in the unanimous or general agree-
ment of searching and impartial inquiries."
Again, on pages 177 to 180:
"The science of ethics (or, in the lan-
guage of Mr. Bentham, the science of deon-
tology) may be defined in the following
manner: It affects to determine the test
of positive law and morality, or it affects to
determine the principles whereon they must
be fashioned in order that they may merit
approbation. In other words, it affects to
PARTS OF THE SAME THING. 133
expound them as they should be; or it
affects to expound them as they ought to
be ; or it affects to expound them as they
would be if they were good or worthy of
praise ; or it affects to expound them as they
would be if they conformed to an assumed
measure. The science of ethics (or simply
and briefly ethics) consists of two depart-
ments, one relating especially to positive
law, the other relating to positive morality.
The department which relates specially to
positive law is commonly styled the science of
legislation, or, simply and briefly, legislation.
The department which relates specially to
positive morality is commonly styled the sci-
ence of morals, or, simply and briefly, morals.
' ' The foregoing attempt to define the
science of ethics naturally leads me to offer
the following explanatory remark. When
we say that a human law is good or bad, or
is worthy of praise or blame, or is what it
should be, or is what it ought to be, or what
it ought not to be, we mean (unless we
intimate our mere liking or aversion) this :
That the law agrees with or differs from a
something to which we tacitly refer it as a
measure or test. For example, according
to either of the hypotheses which I stated
i34 MORAL LAW AND CIVIL LAW
in preceding lectures, a human law is good
or bad as it agrees or does not agree with
the law of God ; that is to say, with the law
of God as indicated by the principle of utility
or with the law of God as indicated by the
moral sense. To the adherent of the theory
of utility a human law is good if it be
generally useful, and a human law is bad if
it be generally pernicious. For, in his
opinion, it is consonant or not with the law
of God inasmuch as it is consonant or not
with the principles of general utility. To
the adherent of the hypothesis of a moral
sense a human law is good if he likes it, he
knows not why ; and a human law is bad if
he hates it, he knows not wherefore. For
in his opinion his inexplicable feeling of
liking or aversion shows that the human law
pleases or offends the Deity.
' * To the atheist a human law is good if
it be generally useful, and a human law is
bad if it be generally pernicious. For the
principle of general utility would serve as a
measure or test, although it were not an in-
dex to an ulterior measure or test. But if
he call the law a good one without believing
it useful, or if he call the law a bad one
without believing it pernicious, the atheist
PARTS OF THE SAME THING. 135
merely intimates his mere liking or aversion.
For unless it be thought an index to the law
set by the Deity an inexplicable feeling of
approbation or disapprobation can hardly
be considered a measure or test. And in the
opinion of the atheist there is no law of God
which his inexplicable feeling can point at.
To the believer in supposed revelation a
human law is good or bad as it agrees with
or differs from the terms wherein the rela-
tion is expressed.
" In short, the goodness or badness of a
human law is a phrase of relative or vary-
ing import. A law which is good to one
man is bad to another in case they tacitly
refer it to different or adverse tests. The
divine laws may be styled good in the sense
with which the atheist may apply the epithet
to human. We may style them good or
worthy of praise, inasmuch as they agree
with utility considered as an ultimate test.
And this is the only meaning with which we
can apply the epithet to the laws of God.
Unless we refer them to utility, considered
as an ultimate test, we have no test by which
we can try them. To say that they are
good because they are set by the Deity is to
say that they are good as measured or tried
136 MORAL LAW AND CIVIL LAW
by themselves. But to say this is to talk
absurdly ; for every object which is meas-
ured or every object which is brought to a
test is compared with a given object other
than itself. If the laws set by the Deity
were not generally useful, or if they did
not promote the general happiness of his
creatures, or if their great Author were not
wise and benevolent, they would not be
good or worthy of praise, but were devilish
and worthy of execration.
" Before I conclude the present digres-
sion I must submit this further remark to the
attention of the reader.
" I have intimated in the course of this
digression that the phrase law of nature and
the phrase natural law often signifies the law
of God.
' ' Natural law as thus understood and the
natural law which I mentioned in my fourth
lecture are disparate expressions. The nat-
ural law which I there mentioned is a por-
tion of positive law and positive morality.
It consists of the human rules, legal and
moral, which have obtained at all times and
obtained at all places.
' ' According to the compound hypothesis
which I mentioned in my fourth lecture,
PARTS OF THE SAME THING. 137
these human rules, legal and moral, have
been fashioned on the law of God as indi-
cated by the moral sense. Or, adopting" the
language of the classical Roman jurists,
these human laws, legal and moral, have
been fashioned on the divine law as known
by natural reason.
1 ' But besides the human rules which have
obtained with all mankind there are human
rules, legal and moral, which have been
limited to peculiar times or limited to pe-
culiar places.
' ' Now, according to the compound hypoth-
esis which I mentioned in my fourth lec-
ture, these last have not been fashioned on
the law of God, or have been fashioned on
the law of God as conjectured by the light
of utility.
" Being fashioned on the law of God as
shown by an infallible guide, human rules
of the first class are styled the law of nature;
for they are not of human position purely or
simply, but are laws of God or nature clothed
with human sanctions. As obtaining at all
times and obtaining at all places, they are
styled by the classical jurists jus gentium or
jus omnium gentium (the law of nations or
the law of all nations)."
138 MORAL LAW AND CIVIL LAW
CHAPTER IX.
EVIL MUST BE SUPPRESSED AND GOOD PRO-
MOTED.
THE growth of public morality in civil
government has been like the advance of
an irresistible army. It has been checked
and compelled to halt and fight long, des-
perate battles, but has never retreated. It
has utterly overthrown, crushed, and de-
stroyed governments, kings, rulers, and peo-
ple who have opposed its advance. It is per-
suasive, patient, and kind to such as heed
warnings, but merciless and relentless to
those who will not yield. It will not con-
sent that immorality, or any system or enter-
prise or business that is immoral, or tends
to immorality, or has an immoral influence,
shall in any way be sanctioned or excused.
The institution of slavery, which claimed
divine sanction and the authority of divine
revelation, which was once accepted by all
men, became an institution especially offen-
sive to the advance of morality, and was
ultimately destroyed by the decision of the
court upon moral principles in England, and
PARTS OF THE SAME THING. 139
by the action of the chief executive in the
United States upon the same ground, and
other nations are obeying the same high
command and abolishing the institution
among their people, so that it is unknown
to-day among all civilized people. Gam-
bling, for amusement or business, was once
thought to be a mere matter of individual
taste and privilege, but when its immorality
and bad influence were made to appear it was
outlawed everywhere from nation to nation.
Once the gladiators furnished entertainment
for a multitude of men, women, and children
by sanction of government and universal
consent ; but that has gone with the fierce
brutality of long ago, and we have so far
progressed that prize fighting may now be
understood as unlawful in every State in
this Union, and is rapidly being driven from
the soil of other nations. We have so far
progressed in our application of the sensi-
tive demands of morality in this direction
that bear baiting, bull fighting, cock fight-
ing, dog fighting, and even rat baiting are
all made unlawful.
Wager of battle between disputants over
personal matters or property rights was once
a legal method of settling questions, but we
140 MORAL LAW AND CIVIL LAW
have now reached the point where dueling,
fighting, and even quarreling over matters
of dispute are forbidden by law. The lot-
tery business, once taken to be a legitimate
business and matter of amusement, so highly
regarded in the United States within the
recollection of persons now living as that it
was made the means of raising funds for
erecting public buildings in the capital city
of the nation ; was chartered by provision of
the Indiana Territorial Legislature in 1807
in the Vincennes University in Indiana, by
which a library for that institution of learn-
ing was to be secured ; was considered proper
means for raising money with which to build
churches, and furnished entertainments for
church socials ; but the immoral character,
influence, and results of the lottery business
became so serious that it was declared by
Lord Holt from the King's Bench in Eng-
land long ago, without any act of Parliament
upon the subject, to be unlawful because of
its immorality. For the same reason it was
always unlawful if the principles of law had
been properly applied in the United States.
Every State in this nation has finally de-
clared the lottery business to be unlawful,
as has the Supreme Court of the United
PARTS OF THE SAME THING. 141
States. It has been hunted down and been
driven from our shores, and even from its
temporary resting place in the government
of Mexico, because of the immorality and
bad influence that necessarily followed in its
wake. There is one universal, thoroughly
settled rule of law in this nation, not founded
upon legislation, but older than legislation,
often, however, recognized and supported
by legislation, that any business that is im-
moral, tends to immorality, or results in
promoting immorality, is unlawful. It is
not only unlawful, but cannot be made law-
ful by any act of the Legislature, nor long
maintained as lawful even by decisions of any
court of last resort. There are two chief con-
cerns in civil government which have been
established by the States in the Union :
First, to promote morality, and, second,
to suppress immorality.
I quote again upon this proposition, Art.
8, Sec. i, of the present Constitution of In-
diana: "Knowledge and learning gener-
ally diffused throughout a community being
essential to the preservation of free govern-
ment, it shall be the duty of the General As-
sembly to encourage, by all suitable means,
moral, intellectual, scientific, and agricul-
10
142 MORAL LAW AND CIVIL LAW
tural improvements, and to provide by law
for a general and uniform system of common
schools, where tuition shall be without charge
and equally open to all."
It must be kept in mind that morality is a
science ; as much so as mathematics, the
oldest science known among men. In pursu-
ance of the constitutional provision I have
just quoted, the Legislature of Indiana long
ago chartered the State Board of Agricul-
ture to encourage the culture of whatever
the soil can produce. The Legislature has
also established at great expense, in obedi-
ence to this section of the Constitution, a
State University for general literary culture,
Purdue University for special instruction,
State Normal School for preparing teachers,
schools for the instruction of the deaf and
dumb and blind and the feeble-minded,
and a general system of common schools
providing for the regulation and licensing
of school-teachers. This section is by far
the most important section in our Constitu-
tion, and the first subject in the section, the
chief and greatest subject which the Legis-
lature is commanded to ' ' encourage by all
suitable means," is morality. Morality is a
specific and independent subject in the Con-
PARTS OF THE SAME THING. 143
stitution, as much as science, agriculture, or
education.
This section was taken as a section from
our former Constitution, with only two
changes of any importance. One of these
is that morality is taken from a subordinate
position in the former Constitution and
given a chief place in the section in our
present Constitution, and the subject of
education is added.
The Legislature is given the power, and
is commanded by this constitutional provi-
sion to do anything and everything that may
be necessary or required to promote educa-
tion, and to suppress everything that retards
or has a tendency to retard, interfere with,
or prevent education. It has the same au-
thority and has the same command as to
the subject of agriculture and scientific in-
formation, and has the same authority and
has the same command as to the subject of
morality. The Legislature in the discharge
of its duty has carefully provided a public
school system with strict requirements as
to the qualifications of teachers. If the
Legislature were to provide that the schools
should teach that the earth is flat, and that
the sun literally rises and sets, it will be
144 MORAL LAW AND CIVIL LAW
conceded that such a law would be absolute-
ly void.
The story is told that in an early day in
Indiana, long before this constitutional pro-
vision and the coming of our common school
system, a school-teacher went into one of
our country neighborhoods to secure the
signatures of parents to an article employing
him as a teacher and agreeing to send their
children to his school. He was so fortunate
as to be admitted to one of those quasi social
gatherings so common in an early day in this
State, known as wool pickings, where the
women of the neighborhood met together
to enjoy themselves socially, picking the
burs and Spanish needles out of the wool,
so that it could be used. He made his busi-
ness known to the women, and asked those
who were heads of families to sign it, and
the others to speak to their husbands or
fathers about it so that they would be ready
when he went around to see them. He was
a fluent talker, and had had much experience
in his work, and had made a very favorable
impression upon his auditors. He was on
the point of taking his departure when one
of the women informed him that there had
been trouble in that neighborhood with
PARTS OF THE SAME THING. 145
a former teacher on the question whether
the earth was round or flat, and that she
and her husband would want to know his
views on that subject before they signed
that article. Another woman showed very
clearly that the subject was a very familiar
one to her, and that she differed from the
first speaker, and demanded that he should
announce his views. He saw at once that
he had a difficult case on his hands, but his
skill was equal to the occasion. Every eye
was on him, and they awaited his answer.
He answered that he had been educated in
both schools and would teach that the earth
was round or flat, just as they preferred.
After the adoption of this constitutional
provision and the legislation in pursuance
thereof, that teacher with all the quacks
like him took their departure from Indiana.
It would not be a pleasant subject for me, a
native Hoosier, to dwell upon or consider at
great length the condition of Indiana as to
illiteracy when our present Constitution was
adopted. But I take great pleasure in call-
ing attention to the fact that Indiana has
made such progress under this constitutional
provision and her favorable legislation, with
her licensed and qualified school-teachers
146 MORAL LAW AND CIVIL LAW
and universities and schools, that no Hoosier
need be ashamed of the showing we are now
able to make. We have also made commend-
able progress in agriculture and scientific
departments.
I make the statement that we have made
less progress in moral science and morality
than we have in any other science ; much
less than in education or agriculture. It
will be found, upon investigation, that old
methods of teaching have been abandoned,
and amazing improvements in methods and
in good results have been accomplished with
wonderfully important and rapidly grow-
ing facilities, conveniences, and capacity for
teaching and imparting and acquiring edu-
cation; old methods of agriculture have
been abandoned, and the fields have been
cleared of trees, stumps, and stones. Ma-
chinery and mechanical improvements have
been brought into use to such an extent
that a person can hardly comprehend the
bettered condition and wonderful advance
that has been made upon this subject since
the adoption of our present Constitution.
The discoveries of our people, and the adop-
tion of the discoveries made by others, with
instructions given, have made the growth
PARTS OF THE SAME THING. 147
of scientific information in the same period
in our State a matter of constant amaze-
ment. In education, agriculture, and sci-
ence it is necessary only to call attention to
the subjects to startle a person with his own
observations and the evidences all about
him of the amazing advance in these re-
gards. Now, when I ask my fellow-citizens
in this State whether we have progressed
in sound morality since 1851, they stare at
me and either speak with great hesitation
and uncertainty or ask time to consider be-
fore they attempt to answer at all.
We are proud of our advance in educa-
tion, in agriculture, and scientific informa-
tion in Indiana during the last twenty-five
years ; but no man is at all proud or satisfied
with our advance in morality. I do not
want to speak disparagingly upon this
subject further than I am compelled. We
have advanced in moral culture, and have
reason for encouragement, not so much at
the extent of our advancement, but that we
have advanced at all, and have not in fact
retreated. I think no man who has made
careful investigation will claim that moral
improvement has been equal to our improve-
ment in these other subjects. This same
148 MORAL LAW AND CIVIL LAW
state of facts in regard to Indiana is true
generally in regard to every other State in
the Union. There has either been less
interest taken in the subject of morality
than in education, or agriculture, or the
sciences, or else there has been some
greater obstruction in this line of culture.
Let us look briefly at the methods of pro-
motion in other subjects, and for the
obstruction thereto, and for the promotion
of morality and obstruction thereto, for
the purpose of finding, if possible, the
cause which has produced this disparage-
ment. The State of Indiana, by her consti-
tutional provision and legislation based
upon it, took the subjects of morality,
agriculture, scientific information, and edu-
cation under its special patronage for the
purpose of promoting these subjects. For
the purpose of promoting agriculture the
Legislature passed laws providing for a
system of highways, drainage, and many
other matters, and also, by penal acts,
fines, and imprisonments, restraining stock
from running at large to prey upon the
crops, fencing of railroads, cutting of nox-
ious weeds, and has encouraged by re-
wards care in the productions of the soil,
PARTS OF THE SAME THING. 149
and in every way preventing what would
result in or tend to the general obstruction
of agriculture. There is not one influence
that is known to have an injurious effect
upon general agriculture that is not for-
bidden by the law of Indiana and sought to
be removed.
Concerning the subjects of education,
agriculture, or science, which are all the sub-
jects except morality mentioned in the con-
stitutional provision referred to, nothing is
permitted by law, or in any way legalized or
sanctioned, which is understood to have a ten-
dency to interfere with or obstruct the work
or development of either of these subjects.
These subjects have a free course and a
full chance to exert all their influence.
Their pathway is cleared before them.
Universities, colleges, schools, and about
fourteen thousand teachers are maintained
and enormous expense incurred by the State
in specific instruction upon these subjects.
For all of this, with the great prospects
ahead of us in these regards, let us all
rejoice. Our school law provides that
teachers must pass an examination cover-
ing certain branches of education, and such
branches must be taught, but they are not
150 MORAL LAW AND CIVIL LAW
required to be examined upon moral science
or to teach it.
In many schools in Indiana, heretofore,
teachers have been given to understand
that they were not to teach the whole truth
upon certain subjects which are not only
matters of scientific truth, but also impor-
tant to the interest of public morality.
To the credit of our last Legislature it
passed an act compelling school board
trustees, superintendents, and teachers to
teach the whole truth. It is humiliating to
admit that evil influences have been so
great in our State, as has been true of
many other States, that even science was
compelled to close its lips.
It is another evidence of the irresistible
power of moral force that it can gain such
victories.
Strange as it may seem science had sub-
mitted and the public school system had
been subjugated, and morality alone came
to the rescue.
Hereafter the injurious effects of alco-
holic drinks and narcotics will be taught
under compulsion in all our public schools.
Morality is the protecting angel for all
truth.
PARTS OF THE SAME THING. 151
I have said that the Legislature of Indiana
has taken care and provided at great ex-
pense and by suitable means for general
education and specific instruction in agri-
culture and the sciences, but I inquire, What
system and what means have been provided
for specific instruction in moral science?
This science, though made the chief sub-
ject and greatest concern in the Constitu-
tion, has absolutely no legislative provision
for its promotion. There must be legisla-
tive provision made for instruction in the
principles and rules and their application in
moral science. Whatever instruction in
the great department of morality there may
have been in the public schools it has been
incidental and as a side matter of minor
importance to other branches of education
of absolute importance.
Heretofore the Legislature has contented
itself in regard to this subject by a some-
what vigorous effort to suppress acts of
immorality.
The theory is thoroughly settled that if
an act, transaction, or business is immoral,
or tends to immorality, it must be sup-
pressed by law.
The mere effort, however vigorous, on
152 MORAL LAW AND CIVIL LAW
the part of the State to suppress immorality
is not sufficient to meet the demands upon
this subject.
But the effort to suppress immorality has
not been and is not now consistent, and
fails at most important points. To this I
shall presently call attention and attempt
to show what I believe to be a serious
failure in this regard.
I call attention to the suitable means and
methods by which the State has sought to
promote the interest of these other subjects.
For education it has chartered and sup-
ports great institutions and a general
system. For agriculture it has done the
same thing. Like provisions have been
made for science.
After the most careful thought and in-
vestigation on the part of Robert Dale
Owen, Governor Whitcomb, and the other
distinguished men who devised our common
school system, it was determined that the
State should take this subject under its
special care and, among other things, for
the purpose of promoting the efficiency and
protecting the business and profession of
teaching, that a license system for teachers
was the best plan. This plan has worked
PARTS OF THE SAME THING. 153
so well that it stands to-day with universal
approbation.
By this plan we have developed a great
army of very efficient and successful
teachers whose attainments are in demand
and whose employment is sure.
The inefficient teachers who could often
secure employment because willing to
accept low wages have all departed or else
qualified themselves for the work. Such
persons were generally successful competi-
tors against better qualified applicants, on
the ground of economy.
This plan of examining and licensing
teachers has wonderfully promoted and
protected the profession and business of
school-teaching and the cause of education
for which it was designed.
For the purpose of promoting the science
of medicine and surgery after a most
thorough investigation by the most intelli-
gent men in these professions, and others
whose judgment was entitled to great
weight, it was decided that the best method
to accomplish this end was by a test of fit-
ness and license for practitioners. Though
this system has been in existence less than
ten years in Indiana it has accomplished
154 MORAL LAW AND CIVIL LAW
more for this science in that short period
than had been done in fifty years before,
and is universally approved.
This system has had like results in other
States. A license system for ministers in
some form is now adopted by nearly all re-
ligious denominations as the best system
for promoting the Gospel and protecting
the business and vocation of preaching.
Whenever the State desired specially to
promote a business or enterprise by control-
ling it, it has been settled by the experience
of all the past that the best method to
accomplish the end designed is by a license
system.
This has been proven true in education,
in agriculture through incorporated soci-
eties, in the science of medicine and surgery,
in marriage, and, in fact, in all corporated
or private enterprises.
Incorporation is a license. The business
and individuals licensed or incorporated to
conduct any enterprise are thereby favored
and protected for the benefit of the enterprise.
Farmers, merchants, manufacturers do
not need license, because they can take care
of themselves.
No profession, business, or enterprise is
PARTS OF THE SAME THING. 155
licensed or incorporated upon a theory or
purpose of lessening or restraining the
magnitude of the profession, business, or
enterprise. Because of the good results
license systems are increasing for laudable
enterprises, as penal enactments are in-
creasing against immoral enterprises.
The only purpose of a penal act is to
suppress ; so the only purpose a license act
•can have is to promote.
As a good illustration of the purpose and
results of a license theory I use the
Methodist Episcopal Church.
It was organized a little more than a
hundred years ago with six members, and
began work with a license system for its
ministry, and undertook thereby the evan-
gelization of the world. So successful has
it been by virtue of that system that its
growth has been fabulous beyond the re-
sult in any other denomination, until now
it numbers its communicants and ministers
in every clime on the globe, and its millions
of money follow their footsteps.
This is the working of a license system
by an ecclesiastical government, but it is
the same system in principle when worked
by a civil government for any enterprise.
156 MORAL LAW AND CIVIL LAW
Such a system has never failed to produce
like results when applied to any enterprise
unless possibly in the case of some business
too insignificant to be promoted by any aid.
The inevitable conclusion is that a license
system is a wise and necessary provision for
the promotion and protection of any laud-
able enterprise that needs the special super-
vision of the State for the good it may be
able to do the public.
License systems have been tested and
tried often and by many governments, for
the purpose of preventing the evil effects of
immoral enterprises. These experiments
have been thoroughly made and this system
thoroughly tested for this purpose and found
in every instance to produce results exactly
the reverse of what was desired.
This theory of legislation has been ap-
plied to gambling, lotteries, prostitution,
and the exhibitions and enterprises which
were recognized as dangerous to public
morals and public peace and under con-
ditions more or less severe, with a revenue
provision.
These license systems for each of these
immoral enterprises have proven failures so
serious as to be alarming, and have been
PARTS OF THE SAME THING. - 157
abandoned almost universally where civil-
ized nations exist and are remembered with
disgust and loathing by decent people.
Only a few years ago the Louisville Lot-
tery opened, its offices and advertised its
business in the cities and towns all over the
United States with impunity, and many
people who stood high in business and so-
ciety invested largely and regularly in the
enterprise.
That organization was licensed by a spe-
cial act of the Kentucky Legislature, and
presided over and officered by distinguished
men who were proud of, and ready to die for,
their reputation.
The act of the Legislature had provided
that this licensed and chartered lottery
should pay annually to the State treasury a
sum of money.
The Court of Appeals, in deciding upon
this feature of the legislative act in the case
of Commonwealth vs. Douglass, before re-
ferred to in this work, said : "When we con-
sider that honesty, morality, religion, and
education are the main pillars of the State,
and for the protection and promotion of
which government was instituted among
men, it at once strikes the mind that govern -
11
158 MORAL LAW AND CIVIL LAW
ment through its agents cannot throw off
these trust duties by selling, bartering, or
giving them away."
In 1867 the Legislature of Mississippi
granted a charter (license) to ttie Mississippi
Agricultural, Educational, and Manufactur-
ing Aid Society, with the right to issue and
sell lottery tickets and to conduct the lottery
business in consideration of the annual sum
of $5,000, and $1,000 in tax and one half of
one per cent of the amount received from
the sale of the tickets to be paid into the
State treasury for the privilege granted.
A question arose as to the validity of that
act of legislation. The society claimed that
it had secured vested right by virtue of that
legislation, public acquiescence, and large
investment of money in the business. That
question passed through the regular course
to the Supreme Court of the United States,
in the case of Stone et al vs. Mississippi, 101
U. S., 814. That court considered the act
of the Legislature with all that it contem-
plated, and also the lottery business with all
that it contemplated, and the real character
of the business, and decided that the lottery
business was inherently immoral, and the
legislative act chartering the business was
PARTS OF THE SAME THING. 159
void. Concerning lotteries the court said :
' ' We are aware that formerly, when the
sources of public revenue were fewer than
now, they were used in all or some of the
States, and even in the District of Columbia,
to raise money for the erection of public
buildings, making public improvements,
and not infrequently for educational and
religious purposes ; but this court said, more
than thirty years ago, speaking through Mr.
Justice Grier, in Phalen vs. Virginia, 8 How. ,
163, 1 68, that 'experience has shown that
the common forms of gambling are com-
paratively innocuous when placed in con-
trast with the widespread pestilence of lot-
teries. The former are confined to a few
persons and places, but the latter infests the
whole community ; it enters every dwelling ;
it reaches every class ; it preys upon the hard
earnings of the poor; and it plunders the
ignorant and the simple. . . . That they are
demoralizing in their effects, no matter how
carefully regulated, cannot admit of a doubt.
When the government is untrammeled by
any claim of vested rights or chartered
privileges no one has ever supposed that
lotteries could not be lawfully suppressed,
and those who manage them punished se-
160 MORAL LAW AND CIVIL LAW
verely as violators of the rule of social mo-
rality.' "
Of the legislative act the court said, ' ' No
Legislature can bargain away the public
morals or the public health or the public
peace." The court held that the act of the
Legislature of Mississippi licensing the lot-
tery was void.
Finally the public came to see by the
light thrown upon the business that it was
immoral and dishonorable. The decision
of the Court of Appeals in Kentucky to
which I have referred followed, and declared
that the legislative act licensing the Louis-
ville Lottery was void, and that no act could
be passed that would be valid for such busi-
ness because of its immorality, and the
Louisville Lottery fled from the State of
Kentucky never to return.
A like history has been recorded of the
Louisiana Lottery since the Louisville Lot-
tery was driven out of existence by the
courts.
The law is now settled in this nation that
no Legislature can license the lottery busi-
ness, because of its bad effect upon public
morals.
The United States government has arrayed
PARTS OF THE SAME THING. 161
all its power and closed its mails against this
business, and woe be to the transgressors.
President Harrison made it the subject of
a special message to Congress, urging imme-
diate action for the protection of an imper-
iled nation.
The Louisiana Lottery had secured such
an influence in the State of Louisiana that
it is evident it could not have been broken
up by action of State authorities if the United
States government had not closed its mails
and declared hostility against it.
The judicial action against the lottery
business is perhaps the best illustration of
the wonderful growth in public sentiment
against immorality, and also forcibly shows
the growth of legal comprehension of moral
principles and their application to civil af-
fairs.
Extensive and expensive provisions have
been made for teaching and promoting all
the other subjects mentioned in the consti-
tutional provision in Indiana except mo-
rality, and futile attempts have been made
to authorize things against the interest of
morality.
It may be said that the State in the erec-
tion of great buildings, and a school system
1 62 MORAL LAW AND CIVIL LAW
and costly provisions for education, and by
her chartered institutions and aid to agricul-
ture, and her encouragement and aid to scien-
tific culture, has sought to aid and has pro-
moted the subject of morality.
But, I ask, Has not morality, unaided by
the State, done more for each of these sub-
jects named within the Constitution than
they have done for morality with all their
aid?
I humbly claim for morality stately build-
ings, chartered institutions, public funds,
legislative provision commensurate with the
importance of the subject — in the language
of the Constitution, " suitable means" for
its promotion.
Jehoshaphat, in the third year of hisr
reign, sent to his princes Ben-hail, Obadiah,
Zechariah, and to Nethaneel and to Mich-
aiah, to teach in the cities of Judah, and
with them nine Levites and two priests.
" And they taught in Judah, and had the
book of the law of the Lord with them, and
went about throughout all the cities of Ju-
dah, and taught the people."
It is recorded that Jehoshaphat waxed
great and had much business in the cities of
Judah. There certainly ought to be some-
PARTS OF THE SAME THING. 163
body, and by some means officially, teaching
in the cities of this nation upon the subject
of morality.
Reading thanksgiving proclamations by
our presidents and governors we are almost
startled by the devout spirit manifested, and
if it were not for our observations would ex-
pect to see every place of divine worship
filled by the people on the day set apart for
that purpose.
The rush of college students and public
school boys, with an occasional college
president and professors, with an army
of young and middle-aged men on such
occasions to witness football games and
other sports, and the meager attendance on
divine worship are enough to start the
inquiry whether this custom has not be-
come a mockery and would better be aban-
doned.
I venture to suggest that even the ser-
mons on the occasions seem to be vieing
with the proclamations in high-sounding,
far-away piety and not quite enough of com-
mon morality for strengthening the citizen
in the duties of everyday life.
We have up to this point been consider-
ing the substance of things, what has been
164 MORAL LAW AND CIVIL LAW
accomplished, methods tested, and the prin-
ciples at work.
Mythology says that Hercules was des-
tined by the gods to complete twelve great
undertakings before his work was ended.
Shall we stop here in the consideration of
the work and destiny of the twin giants,
moral law and civil law?
To advance is not an easy undertaking.
Morality fights no sham battles nor assails
an unarmed foe.
We must take our places in the ranks and
perform our duty or stand aside while the
column goes by.
We can hear the marching columns sing :
" We have battles to fight ;
We have foes to subdue ;
Time waits for no man,
And we wait not for you.
" The mower mows on,
Though the adder may writhe,
And the copperhead coil
'Round the blade of the scythe."
We have called attention specifically to
some things that have been tolerated and
some that have been approved and author-
ized by law, but have at last been forbidden
and suppressed because of their immorality.
PARTS OF THE SAME THING. 165
As a matter of legal principle to which,
there is not an exception in its application,
whatever is immoral or tends to immorality
must be suppressed and cannot exist by per-
mission. The great undertakings that civil
government is destined yet to complete no
man has presumed to number. That they
are many no man will question.
That these are to be worked out by citi-
zens through the application of legal princi-
ples and methods must be clear to us all.
I shall content myself with the considera-
tion of what I think will be the next hercu-
lean undertaking of civil government in
the States and by our general government.
166 MORAL LAW AND CIVIL LAW
CHAPTER X.
NO PRIVILEGES FOR EVIL.
FROM considerations presented in
former chapters in this work I feel
safe in saying that whenever the
question is settled that any business or
any conduct is immoral, that settles another
question that follows as an inevitable con-
clusion, that business or conduct at once
becomes an outlaw and cannot be given
any legal status by any power known to
civilized government.
It has taken a long time in many cases
to settle the question of immorality.
As has been shown in many cases cited
herein, enterprises, institutions, and conduct
long accepted and looked upon as not mat-
ters of public concern, are sometimes sud-
denly seen to be improper and lawless and
dangerous to the public welfare. In many
cases long discussion, growth of intelligence,
and sometimes bloody strife have been
required to bring out full comprehension of
the real character of great evils. Some of
PARTS OF THE SAME THING. 167
the greatest evils have not always and under
all conditions been evils or immoral.
Human slavery had its favorable condi-
tions.
Daniel was a captive slave in Babylon,
and Joseph was sold for twenty pieces of
silver, but each reached a position that
would gratify the most ambitious, and for
which a man could afford to become a
slave. Eleazer was Abraham's slave, but
no greater advantage could have fallen to
the lot of Eleazer, and was greatly to Abra-
ham's advantage.
In unnumbered cases men and women,
brought by force from their savage and
beastly condition in Africa to the United
States, became the property and were
brought under the influence of humane
masters and religious teachings, which has
been, and will be to them and to their
children an untold blessing in all time to
come.
Many have been the cases where the
slave in old age, disability, or sickness was
free from care and his wants met by a
kind-hearted master.
Many things could be truthfully said in
favor of African slavery.
1 68 MORAL LAW AND CIVIL LAW
We can easily call up the scene of
life before the civil war in this nation,
when, as they were called, the old colored
aunties and uncles clung to their master
and mistress and to their children with a
childlike and simple affection that was most
beautiful.
I have in mind actual cases where these
old uncles and aunties loved their master
and mistress, and cared for and loved their
little and grown masters and mistresses in
the family, with that devotion we all long
for, but seldom see, in the homes in these
days between employer and employees.
That tender relation between Uncle- Tom
and Little Eva, truthfully pictured by Mrs
Stowe, has made many a little girl who has
contemplated it wish she had such a faith-
ful friend as Uncle Tom.
I say that slavery had many things that
could be said with great force in its favor.
So strong were these favorable arguments
for slavery that it took two hundred and
fifty years and an awful experience to
overcome them. That other side of slavery
given in Uncle Toms Cabin .was always true
in the United States.
Slavery was always wrong in principle,
PARTS OF THE SAME THING. 169
and its general influence and results were
always bad.
Thomas Jefferson, when he contemplated
the nature of the institution of slavery
more than fifty years before the civil war,
uttered the honest sentiment of his heart
when speaking of slavery. He said, " I
tremble for my country when I reflect that
God is just and that his justice will not
slumber forever."
Well might Jefferson tremble under such
contemplation when he saw that institution
recognized and to be continued by public
acquiescence.
Jefferson's fears were well founded. A
just God did amid the thunder and light-
ning of war destroy the wicked institution.
Slavery, from that fatal day in the year
1620, was always legally wrong and im-
moral as an institution, and by permitting
it to exist anywhere in the United States
the people invited the storm that swept it
away at such awful cost. Every year that
it continued made the cost of its removal
the greater.
There were many things that could be
said for the lottery business. It was often
used as a method for raising money for
i/o MORAL LAW AND CIVIL LAW
good purposes — in erecting public buildings
and educational enterprises, and for many
other purposes that were laudable. In such
cases some consideration was given for
every investment and ticket sold.
It took centuries to fully expose the
wrong principle and immorality in this busi-
ness. When that was accomplished the
lottery business became per se unlawful,
and cannot be authorized under any condi-
tions.
The United States government is founded
upon the right to religious liberty.
Men may teach, and organize to teach, if
they desire, that there is no God, or they
may adopt any form of worship and teach
anything as to the character of the divine
Being they like, or promulgate any reli-
gious creed, so long as they keep within the
bounds of public morality. But they can-
not transcend that boundary.
The Mormon Church taught and practiced
plurality of wives. For that immorality in
religious belief the government by force
broke up their religion, made it unlawful,
and confiscated the great estate of Brigham
Young. Many good things could be said
for the Mormon Church, but in so far as it
PARTS OF THE SAME THING. 171
encouraged or promoted immorality it was
an outlaw, as in any other case.
It might be said that if two or more per-
sons for mere pastime and amusement,
who can afford to, without inconvenience,
see fit to put up a small wager on a quiet
game, it concerns no one but themselves.
But gambling is on a wrong and danger-
ous principle and is immoral, and for that
reason all public and private gambling,
even in the quietude of a private home, is
rigidly forbidden. It has been fully shown
that the experiment often tried of licens-
ing and regulating lotteries, gambling, and
other immoral lines of business was wrong
in principle and resulted in enlarging the
magnitude and evils of such business ; and
for these reasons this theory of dealing with
these evils has been abandoned and the
settled and universal policy adopted of for-
bidding the existence of these enterprises.
I have called attention to the fact that
the theory of chartering, incorporating, and
licensing proper and useful enterprises has
wonderfully developed and is growing in
favor rapidly.
The words chartered, incorporated, or li-
censed mean substantially the same thing.
172 MORAL LAW AND CIVIL LAW
While this theory has worked satisfac-
torily and grown in favor when applied to
useful and moral enterprises, it has cor-
respondingly worked unsatisfactorily and
disastrously whenever applied to any im-
moral enterprises. There is not an excep-
tion to this rule to be found in history,
covering three thousand years, in the
practical working of every system which
gave such theory recognition and consent,
whatever might have been the regulations
and restrictions to immorality. This theory
has been long and thoroughly tested and
abandoned. Let us not be extravagant
or reckless in statements, but let us be just
as careful not to be timid, for I am now
dealing with an extremely important
matter.
I call attention to the many cases cited
heretofore in this work, and especially to
the cases wherein chartered rights without,
and sometimes for large compensation to
the States have been granted by legislative
acts for lottery enterprises, and which acts
have been held to be void. We boast, and
well we may, of our rapid growth in intelli-
gence, moral sense, and comprehension of
legal principles. Every person who claims
PARTS OF THE SAME THING. 173
to have been benefited by this advanced
condition of affairs must be prepared to
look at any matter of public concern calmly
and thoroughly.
I now call attention to the saloon busi-
ness, the institution, the enterprise, the
place of resort where persons are invited,
induced, and enticed to assemble and buy
and drink intoxicating liquors and partici-
pate in the association of such a place.
It is not my intention to enter into a
temperance lecture, or to say anything on
the subject of temperance, or to discuss the
question of the manufacture and sale of
intoxicating liquors, or whether everyone
must totally abstain or may use intoxicating
liquors. I shall confine myself to the con-
sideration of the legal status of the saloon,
this place of resort, this business.
What kind of a business is this ? Is it a
moral or immoral business per se ? Upon
the settlement of these questions will de-
pend the judicial action and the theory of
legislation that shall be applied. Are the
tendencies, effects, and results of this busi-
ness like or substantially the same as in
any other business which courts have rec-
ognized as moral?
12
174 MORAL LAW AND CIVIL LAW
I have heard it said that in Germany
men go with their families and sit down
at tables and drink beer for social en-
joyment without bad moral results.
If any person will stop and think about
such a statement, of what the influence and
tendency of such a place must be under
this, the very best claim that can be made
for it, he will turn from such a claim of
innocence with disgust. At any rate that
kind of family life in the United States
will not produce good results.
I need only call attention to the well-
known fact that the German government is
aroused to great activity upon this subject
of the saloon influence, and in the last five
years official statements of most alarming
character have been published by its au-
thority.
It is a hard thing to say of any commu-
nity that the parents and children together
resort to saloons and drink beer or any
other intoxicating liquors. Such a state-
ment carries an impression of the moral
and intellectual condition of that commu-
nity decidedly unfavorable to the mind of
every citizen of average standing. Take a
saloon under the most favorable conditions
PARTS OF THE SAME THING. 175
claimed for it and think about it. The
mind can reach but one conclusion as to its
influence.
I say its influence and effects are not like
the influence and effects of any business
that we know of that is a moral business.
There is an influence and effect in the
saloon business worse and more dangerous
than any influence or effect in or about any
moral business.
I concede that there are often imtnoral
influences connected with a useful and moral
business; but the prevailing tendency and
influence in any useful business tend to-
ward morality. Sometimes a useful busi-
ness is conducted in a dishonest way and
upon dishonest motives; then the whole
business is dishonest and immoral, for which
the proprietor may be punished and his busi-
ness broken up.
I have in mind men who engaged in busi-
ness as real estate brokers, which is a legiti-
mate and moral vocation, but they conducted
it in a fraudulent and illegal way, on account
of which they are now paying the penalty
in the State prison, and their business is
broken up and their ill-gotten gains restored
to their victim. Such transactions cast no
176 MORAL LAW AND CIVIL LAW
taint of illegality or odium, upon the legiti-
mate business of real estate brokerage. I
have known gamblers voluntarily to restore
ill-gotten gains and perform deeds of charity
and kindness ; but that does not make gam-
bling the less unlawful.
In the saloon business a sale and purchase
of intoxicating liquors may be made that
would not be immoral on either side ; more
than that, a sale and purchase of intoxicating
liquors may be made in a saloon where the
transaction would be highly proper on both
sides — in case of an emergency.
But no man undertakes the saloon busi-
ness for the purpose of selling to persons
only, who would not in any way be injured,
or who would be better for buying it.
I ask any candid man to contemplate the
business of the best possibly conducted
saloon for one busy hour and answer to his
own judgment what is the prevailing tend-
ency of that business in that saloon ?
But the question is not to be determined
by contemplating the best nor the worst con-
ducted saloon. It is the general tendency
of the saloon business that must be taken.
There were masters who treated their
slaves kindly and made for the slaves better
PARTS OF THE SAME THING. 177
conditions than they have made for them-
selves since they were free.
The great question of the right or wrong
of slavery was not determined by taking the
best and worst conditions. The general char-
acter, tendency, and effect of slavery was
bad, and therefore slavery had to be abol-
ished.
The settled rule of law is, that if the
general character, tendency, and effect of
any business is against the public morals, it
cannot have a legal standing. I have said
that the general character, tendency, and
effect of the saloon business are not like the
general character, tendency, and effects of
any business which the law has ever recog-
nized as useful and moral.
I now call attention to the fact that the
general character, tendency, and effect of
the saloon business are like the general
character, tendency, and effect of every
business that the law has recognized as im-
moral and illegal.
If the slavery system and the saloon
system in the United States are laid down
side by side and measured, put into the
scales and weighed, analyzed, the good and
bad elements separated and noted, their
178 MORAL LAW AND CIVIL LAW
respective effects upon the living and their
posterity, every component element in each
set down, and the real character, tendency,
and effect carefully considered, the institu-
tion of human slavery will have the advan-
tage in the result. Our government arose
in its might and destroyed the institution of
slavery because it incited rebellion.
The first rebellion against our govern-
ment was the whisky rebellion of 1794,
when the United States government was
only five years old, and the business has
been in rebellion more or less openly ever
since against every government wherever it
exists.
Make a like test of the saloon business, as
made with it and slavery, with the lottery
business, and the latter will come out of such
a test with an appearance of respectability as
contrasted with the former. The people of
most States put a provision in their Consti-
tution forbidding lotteries, courts have re-
corded against them their condemnation, the
President of the United States government
and Congress took speedy action to prevent
their dire consequences, and they have been
driven beyond the border of our nation.
Make a like comparative test of the saloon
PARTS OF THE SAME THING. 179
business with prize fighting, and the result
will be decidedly in favor of the latter in
respectability and public safety.
The Indianapolis Journal, speaking of the
evil of the saloon, said, "The open saloon
is the universal public enemy."
The saloon business is alike in quality to
every other adjudicated and well-known im-
moral enterprise, only the saloon business
has the greatest proportion in its compo-
sition of immorality and danger. It is
an axiom in geometry, that ' ' things which
are equal to the same thing are equal to
each other."
I quote what the United States Supreme
Court says in the case of Phalen vs. Virginia,
8 How., 163, 1 68, on the lottery business, as
follows : ' ' Experience has shown that the
common forms of gambling are compara-
tively innocuous when placed in contrast
with the widespread pestilence of lotteries.
The former are confined to a few persons
and places, but the latter infests the whole
community; it enters every dwelling; it
reaches every class ; it preys upon the hard
earnings of the poor ; and it plunders the
ignorant and the simple."
Here I quote what the same court said in
i Bo MORAL LAW AND CIVIL LAW
the case of Thurlow vs. Commonwealth of
Massachusetts, etc., 5 How., 504, decided
in 1847, as follows : "It is not necessary for
the sake of justifying the State legislation
now under consideration to array the ap-
palling statistics of misery, pauperism, and
crime which have their origin in the use
and abuse of ardent spirits."
Again, the same court, in the case of
Crowly vs. Christensen, 137 U. S., 86, de-
cided in 1891 upon the saloon business as
follows : ' * By the general concurrence of
opinion of every civilized and Christian
community there are few sources of crime
and misery to society equal to the dram-
shop, where intoxicating liquors in small
quantities to be drunk at the time are sold
indiscriminately to all parties applying.
The statistics of every State show a greater
amount of crime and misery attributable
to the use of ardent spirits obtained in
these retail liquor saloons than to any other
source."
Courts and Legislatures have declared spe-
cifically, and the whole people acquiesce, that
the lottery business is an immoral business,
and therefore unlawful per se, and cannot be
made lawful by any power or action. And
PARTS OF THE SAME THING. 181
the character, tendency, and effect of the
lottery business are given so that we know
how to identify an immoral and unlawful
business by legal tests.
Now I call attention to the declaration of
the highest judicial tribunal in the land as
it states the result of its judicial conclusions
concerning the saloon business in the lan-
guage just quoted.
I repeat the last sentence of the last quota-
tion with my own emphasis for the purpose
of letting it burn its way to the core of the
question under consideration : ' * The sta-
tistics of every State show a greater amount of
crime and misery attributable to the use of ar-
dent spirits obtained in these retail liquor
saloons than to any other source "
This being settled, that any business that
produces or tends to produce misery or
crime is immoral and unlawful, it follows
that the business that produces the most
misery and crime is the most immoral and
the most unlawful. Therefore, as "the
statistics of every State show a greater
amount of crime and misery attributable to
the use of ardent spirits obtained in these
retail liquor saloons than to any other
source/' the saloon business is the most im-
1 82 MORAL LAW AND CIVIL LAW
moral and most unlawful business known to
society.
As I have said, some good things could
be said for slavery, for the lottery business,
and even for prize fighting. It might be said
that the latter encourages physical develop-
ment by showing what can be accomplished
in that way and how it can be done.
Not one good thing, however, can be said
for the saloon business. It is debasing to
the proprietor and his family, a stain upon
the reputation of his children ; its influence
is dangerous to the best person who patron-
izes it, causes untold agony to the weak
victims and their families, and is a upas
tree in the community.
The only difference in saloons is in de-
gree, not in quality. What can be done to
meet this emergency, to relieve society from
the ravages of this crime and misery-pro-
ducing business?
" For every evil under the sun
There is a remedy, or there is none.
If there is one, try to find it ;
If there is none, never mind it."
I do not want to be misunderstood. I am
not considering the question of total absti-
nence, nor the prudent use of intoxicating
PARTS OF THE SAME THING. 183
liquors, nor the question of hard or soft
liquors. The only question I am consider-
ing is the saloon, the place of resort, the
public institution, where inducements and
invitations are held out for persons to go
and buy and drink intoxicating liquors. It
is this place, this institution, I am talking
about.
The business is inherently immoral. If
the court had not settled this question, every
intelligent man could settle it from his own
knowledge. An honest man will be candid
and considerate with any important ques-
tion.
The United States Supreme Court says,
* ' This is the greatest source of misery and
crime." Then it is the greatest matter of
public concern.
Lottery, gambling, prize fighting, prosti-
tution, and all other immoral business enter-
prises of like character cannot be licensed by
law, because of their immorality. For the
same reason any law that undertakes to
license saloons is void on legal principles
well settled, and must be so declared by the
courts.
We have reached such a state of mental
and moral development of public sentiment
1 84 MORAL LAW AND CIVIL LAW
and corresponding development in compre-
hension of legal principles that this busi-
ness, this institution, this system, if never
before, has become unlawful and a menace
to public welfare.
License systems for lotteries and license
systems for gambling have been declared
void by the courts.
Slavery in England was destroyed by
decision of the King's Bench. Slavery in
the United States was abolished by the
proclamation of the chief executive.
Courts can and must perform the duty im-
posed upon them when the question comes
before them, as it will do, and declare any
law which undertakes to provide a license
system for saloons void.
As this business is the same in character
as lotteries, gambling, prize fighting, and
the hundreds of other offenses, it must
be put under the same condemnation of
law.
Lord Chancellor Cottingham of England
a few years ago, in the case of Taylor vs.
Salman, 4 Mylne & C., 141, declared the law
of England as follows : * ' That it is the duty
of courts of equity, and the same is true of
all courts and of all institutions, to adapt its
HARTS OF THE SAME THING. 185
practice and course of proceedings, as far as
possible, to the existing state of society, and
to apply its jurisdiction to all these new
cases which, from the progress daily mak-
ing in the affairs of men, must continually
arise, and not, from too strict an adherence
to forms and rules established under very
different circumstances, decline to adminis-
ter justice and to enforce rights for which
there is no other remedy."
Judge Redfield, in his work on railroads,
Vol. II, page 366, quotes this language of
Chancellor Cottingham, and says that the
rule therein announced by him "is cer-
tainly worthy of one of the ablest, wisest,
and best judges that ever administered the
chancery law of England or America."
The Supreme Court of Indiana, in the
case of the Columbia Athletic Club vs. The
State, 40 N.E., 914, a decision rendered so
recently that it has not yet been reported,
quotes and approves the declaration of
Lord Cottingham and Judge Redfield's
comments thereon.
After which our court uses the follow-
ing language : ' ' The Constitution puts its
special bans upon lotteries, duels, and all
infamous crimes; while at the same time
1 86 MORAL LAW AND CIVIL LAW
it provides for the moral and intellectual
improvement of the people. A statute
which should attempt to authorize prize
fighting would most certainly be opposed
to the spirit of the Constitution, and indeed
that of the law itself, long since defined to
be ' a rule of civil conduct prescribed by
the supreme power of a State, command-
ing what is right and prohibiting what is
wrong/ It is a well-settled rule of law
that when the reason for a law ceases the
law itself ceases."
But it is claimed by some defenders of
the saloon system that if it were not for
that system anyone and everyone could
conduct the saloon business without restric-
tions.
Upon this very point when the question
was in issue the Supreme Court of the
United States, in the case of Crowly vs.
Christensen 137 U. S., 86, said: "There
is no inherent right in a citizen to thus sell
intoxicating liquors by retail. It is not the
privilege of a citizen of the State or of the
United States."
I quote from Wood's Law of Nuisance,
sec. 24: "The experience of all man-
kind condemns all occupations that tamper
PARTS OF THE SAME THING. 187
with the public morals, tend to idleness,
and promotive of evil manners, and any-
thing that produces such results finds no
encouragement from the law, but is uni-
versally regarded and condemned by it
as a public nuisance. If it comes within
the rules that have been established by
the courts, and such have been dictated
by the highest wisdom and soundest public
policy, and is productive of all the ill re-
sults that characterize these wrongs, it is
a public nuisance, and will be punished as
such."
If the authority and protection given by
the license law were withdrawn from the
saloons in Indiana not one of them could
stand against an arraignment as a nuisance.
I could cite legal authority in this line
sufficient to make a large volume, but deem
this ample support to the two propositions
which I link together: (i) That no man has
an inherent right, if there were no law upon
the subject, to sell intoxicating liquors by
retail; in other words, to keep a saloon.
(2) That the saloon business comes clearly
under the definition of a nuisance if it were
not protected by the license law.
The act of the Indiana Legislature, pro-
1 88 MORAL LAW AND CIVIL LAW
viding that a license may be granted for
saloons in consideration of the license fee,
is clearly * * bargaining away the public mor-
als and public peace," which courts have
thoroughly settled cannot be lawfully done.
In every instance where courts have used
this language — which have been no less than
four times by the Supreme Court of the
United States, and by many State Supreme
Courts, among which is our own court — it
has been used with reference to license
systems, where a license is granted for a fee.
I am told that the document issued to
the saloon keeper is not a grant or privi-
lege, but is only a regulation and restric-
tion. The document is called license ; it
calls itself a license ; it says that the grantee
" is hereby licensed." It is a license ; it is
a grant of privilege. Much protection to
the public is claimed on account of the
regulations and restrictions in the saloon
license system.
REGULATIONS AND RESTRICTIONS.
There are regulations and restrictions in
the preachers' license system adopted by
Churches. Every,man cannot get such a
license.
PARTS OF THE SAME THING. 189
There are regulations and restrictions in
the teachers' license system. Many persons
cannot get a license to teach.
There are regulations and restrictions in
the marriage license law. Idiots and per-
sons within a certain degree of kinship
cannot marry, and there are other serious
restrictions in the system.
I call your attention and ask your careful
consideration to the purpose of these regu-
lations and restrictions in any license
system. They are for the benefit of the
system, for its protection and preservation.
A license system without regulations and
restrictions would amount to nothing. The
stronger the regulations and restrictions
the better for the protection of the system.
It would be wholly inconsistent to establish
a license system and then break it down
with regulations and restrictions. When-
ever restrictions go to the extent of destroy-
ing the business license, then they are not
restrictions, but prohibitions, and are void
if the license system is valid.
THE PURPOSE OF LICENSE.
The purpose of any license system is to
protect and promote the enterprise licensed.
13
1 90 MORAL LAW AND CIVIL LAW
Whenever the State desires to take under
its special care and protection, and there-
by promote, any business or enterprise,
the best system ever devised or adopted
to accomplish the end is the license sys-
tem. It is a well-known fact that the
doctors of Indiana, after long years of dis-
cussion and careful consideration, caused a
bill to be carefully prepared, establishing
a license system for their business, and
by an organized effort secured an enact-
ment of the bill by the Legislature of
Indiana. And they stand by it with great
energy. It is also a well-known fact that
the saloon keepers and liquor dealers of
Indiana caused to be prepared the pres-
ent saloon license law, and made a con-
solidated and vigorous effort whereby they
secured its enactment by the Legislature of
Indiana; and they stand by their system
with an energy that amounts to despera-
tion.
To establish in your minds the fact that
the principles upon which the saloon license
and doctors' license law, as illustrative of all
license laws, are the same, I quote from the
first sections of each of the two systems
named.
PARTS OF THE SAME THING. 191
SALOON LICENSE LAW.
" Be it enacted by the General Assembly
of the State of Indiana that it shall be
unlawful for a person, directly or indirectly,
to sell, barter, or give away for any purpose
of gain, any spirituous, vinous, or malt
liquors in less quantities than a quart at a
time, without first procuring from the
Board of Commissioners of the county in
which said liquor is to be sold a license as
hereinafter provided."
DOCTORS' LICENSE LAW.
' ' Be it enacted by the General Assembly
of the State of Indiana that it shall be un-
lawful for any person to practice medicine,
surgery, ... in this State without first
obtaining a license to do so as hereinafter
provided."
Upon any analysis of the purpose, princi-
ple, system, or results, the saloon license is
based upon the same theory and is treated
exactly the same in all respects as any and
every other licensed enterprise. The en-
thusiast for any of the systems named, or
any other licensed system, may make the
showing for his favorite as strong as he can
in the light of facts, and when he has fin-
192 MORAL LAW AND CIVIL LAW
ished and shown the promotion and protec-
tion given by the law to the enterprise
licensed, then the liquor dealer can show
that there has been none of these systems
that has done more for which to be praised
by its beneficiary for prosperity and promo-
tion than has the saloon license system.
Whatever people may have heretofore be-
lieved, whatever they may believe now,
the rugged fact looks them in the face,
nevertheless, that every license system is
intended for the purpose of promoting and
protecting the business licensed, and does
result in promoting and protecting the
business; and no business has been more
highly favored in this regard than the
liquor traffic, and no business under a
license system has grown and prospered in
wealth and influence more than this deadly
business.
It will not do to say that we license the
saloons for the purpose of discouraging and
breaking up the saloon business, nor that
we license the sale of intoxicating liquors
to be drunk in saloons to discourage and
diminish the drinking of intoxicating
liquors.
The Church believes in the promotion of
PARTS OF THE SAME THING. 193
the Gospel and in preaching. Therefore it
licenses ministers.
The State believes in education and the
business of teaching. Therefore it licenses
school-teachers.
The State believes in marriage. There-
fore it licenses marriage.
The State believes in the business of
practicing medicine and surgery. There-
fore it licenses doctors.
Whatever people may heretofore have
thought, and whatever they may now think,
they are held to the result of what they do,
when the result is well known to them, as
the true interpretation of their intention.
When the State of Indiana licenses the
saloon business it must be held by that act
to believe in the saloon business.
When I speak of the Church I mean the
people in the Church.
The man who votes in the Church in
favor of licensing ministers does so because
he believes in the ministry.
When I speak of the State I refer to the
people composing the State.
While the people of the State maintain a
saloon license system they cannot say that
they do not believe in the saloon business.
194 MORAL LAW AND CIVIL LAW
NOT UNDER THE BAN OF THE LAW.
I am told that the regulations and restric-
tions in the saloon license system put the
saloon business under the ban of the law
and in disgrace.
But do the regulations and restrictions
of the preachers' license system put the
business of preaching the Gospel under the
ban of the Church and in disgrace?
Do the regulations and restrictions of the
teachers' license system put that system
under the ban of the law and in disgrace?
Do the regulations and restrictions of
the marriage license put that institution
under the ban of the law and in disgrace ?
The regulations and restrictions in each
of these systems is upon the same principle,
has exactly the same effect, treats the busi-
ness in the same light.
The regulations and restrictions in the
saloon license system no more puts that
business under the ban of the law and in
disgrace than is marriage brought under
disgrace by the license, regulations, and
restrictions concerning it.
The regulations and restrictions in the
saloon license system are the guardian
angels that hover about the system for the
PARTS OF THE SAME THING. 195
same purpose that they guard any other
system.
There might be schools, school-teachers,
doctors, preachers, and marriage, and all
these did exist before the license system ;
but there could be no saloons without a
license.
Without this document the man who
established a saloon would be subject to
punishment for every drink he sold. With
this document he is guaranteed the protec-
tion of the State in his business. Thus,
the office of this document is to protect and
enable him to conduct the saloon business.
A saloon without a license system and a
license for its protection would be an un-
lawful institution, because of the character
of the business itself. No man has the
right to conduct the saloon business with-
out the authority which such a license con-
fers upon him.
, Let it be borne in mind that I am not
lecturing on temperance, nor trying to be
sentimental, but I am attempting to apply
legal principles as old as the hills and com-
mon sense rules to a case in hand.
No question will be raised by any lawyer
upon the proposition that the Legislature
196 MORAL LAW AND CIVIL LAW
of the State may provide by law for li-
cense, with regulations and restrictions for
any business that is in the interest of the
public.
I affirm with the utmost confidence that no
act of the Legislature that attempts to license
or regulate and restrict any business that is
immoral, or that tends to the promotion and
encouragement of immorality, can be valid.
The Supreme Court of the United States,
the Supreme Court of Indiana, and the
Supreme Courts of other States have, in
legal effect and contemplation, held that
the saloon business is an immoral business.
If it is it cannot be legally licensed. The
saloon business must be considered upon its
character, tendencies, and effects as seen
and comprehended to-day, not as they
were seen and comprehended one hundred,
or even twenty-five, years ago.
Let me make myself clearly understood
upon this question. I concede that many
times the higher courts have decided that
Legislatures have the power to license the sale
of intoxicating liquors, and I fully concede
that the Legislatures have such power for
proper purposes and under proper restric-
tions and regulations. The Supreme Court
PARTS OF THE SAME THING. 197
of the United States defines this legislative
power in the following language : * ' As it
is a business attended with danger to the
community it may be entirely prohibited
or be permitted under such conditions as will
limit to the utmost its evils." This lan-
guage of the highest court lays down the
principle of law involved in this question.
My application of the principle to the case
in hand is that, as the saloon business does
not limit nor lessen, but encourages and aug-
ments the evils which arise from the sale
of liquors ; as the history of one hundred
years thoroughly establishes that the saloon
business, with its places of resort, is the
worst and most dangerous system for the
sale of liquors that could possibly be pro-
vided; as the saloon business is not nec-
essarily connected with the sale of liquor,
as the sale of intoxicating liquors might be
provided for, for all necessary purposes,
without connection with the saloon busi-
ness, or any place of resort, for the con-
venience and purpose of drinking the same,
therefore the Legislature does not have the
power to license the saloon, the dangerous
and evil resort.
This I claim to be the correct position,
198 MORAL LAW AND CIVIL LAW
even if the question of morality were not
involved in the case and it stood upon the
questions of public health and public
safety.
A territorial government was established
for the Northwestern Territory in 1787.
That Territory covered the region north of
the Ohio River, east of the Mississippi River,
and embraced what are now five States.
The legislative branch of the government
consisted of the governor and three judges.
The very first act of the legislative body
was a law providing a license system for
saloons. That was more than one hundred
years ago. I hold up before you that
license act beside the present saloon license
system enacted by the Indiana Legislature
in 1875, prepared and enacted upon the
demand and to the satisfaction of the liquor
interests of Indiana, and call your attention
to the fact that the difference between
these two acts is of immaterial and of
trifling importance. In many respects they
are identical, word for word. For one
hundred years, except about four years, a
license system has ruled over the soil of
what is now Indiana. One hundred years
is long enough to test any system of legisla-
PARTS OF THE SAME THING. 199
tion. The experience and observation of
men for the last hundred years, the laws of
inheritance, the disposition of property by
will, the rights of married women, the
rights and uses of property, have under-
gone great changes. A public system
of education has been devised, business
enterprises and inventive genius have
stimulated thought into marvelous activity.
The dense forests and wild prairies have
been converted into fruitful fields, prosper-
ous homes, and great cities. Conditions,
social and political, have undergone great
changes. The rights of State, of men and
property, have been better defined. A
whole race has been set free. Legislation
and judicial decisions have done much to
promote and protect fair dealing in busi-
ness and the suppression of all phases of
vice and fraud ; a lottery system that was
so highly regarded long after this saloon
system was adopted that it was legally
connected with education in the Vincennes
University, and in the construction of
churches, and even public buildings in the
capital city of the nation, has long since
been declared a crime, and suppressed in
Indiana and in all other States. Old theories
200 MORAL LAW AND CIVIL LAW
and systems of legislation long ago fled
before the marching columns of our ad-
vancing civilization. New theories have
been tested, developed, and abandoned.
But a license saloon system has survived
them all, without material change, in this
one hundred years of progress in all things
else. The saloon license law of Indiana
remains to-day substantially the same as
the saloon license system for the North-
western Territory, adopted more than one
hundred years ago. After one hundred
years of trial of this measure the highest
judicial tribunal of this nation declares
that:
1 ' The statistics of every State show a
greater amount of crime and misery attrib-
utable to the use of ardent spirits obtained
in these retail liquor saloons than to any
other source."
The moral and Christian sentiment of
the whole world cries out against it. And
yet this worst of all evils and institutions
remains and retains its foothold. These
saloons that were trifling in their influence
and power a century ago have, under the
fostering care of this vicious system, grown
so great in wealth and power that they
PARTS OF THE SAME THING. 201
defy the laws we have and the government
under which they exist, and boldly an-
nounce that the laws cannot be enforced
against them, and sneeringly defy the in-
telligent and civilized sentiment of the
nation.
It seems to me that under the enlight-
enment and development of civilization and
education the most surprising thing pre-
sented to our view is the continuance and
prosperity of this greatest crime and misery
producing system. That of all the theories
and systems of legislation upon any sub-
ject the worst and most destructive should
survive with us more than one hundred
years is beyond comprehension. I arraign
this system before the good citizens of this
State and the whole nation, with its one
hundred years of record and history, every
page of which is stained with blood, and
which is condemned from every source
worthy of consideration, and charge it with
every crime known to man, and deny that
it has one redeeming trait. The only plea
offered in its behalf is one of confession
and avoidance, admitting that it is an evil,
but claiming that it is a necessary evil. I
demur to this plea, upon the ground that
202 MORAL LAW AND CIVIL LAW
there never was and never can be, founded
upon any legal principle, an evil that is neces-
sary. If an institution is evil both princi-
ple and the whole power of the law must be
arrayed against it.
Some legal propositions are thoroughly
settled by the harmonious decisions of the
highest courts :
1. That morality, as contemplated in
the Constitution and laws of Indiana, is the
morality that is contemplated in the Chris-
tian religion.
2. That the Constitution of Indiana de-
mands the Legislature to promote and pro-
tect morality.
3. That the saloon business is an im-
moral business.
Hence the inevitable conclusion is that
licensing the saloon business is licensing
immorality and is bargaining away the
public morals and the public safety.
I admit that Supreme Courts of many
States have held that this is a lawful busi-
ness ; but I stand unawed in the presence of
these courts and declare that an immoral
business cannot be a lawful business, how-
ever apparently solemn may be the act of
the Legislature attempting to authorize the
PARTS OF THE SAME THING. 203
same, and that the saloon business is more
immoral and more unlawful than the lot-
tery business. The Legislature may author-
ize, license, and protect what is right, and in
the interest and in harmony with the public
welfare, but it may not license an immoral
or evil business. I am not attempting to
avoid or shrink from decisions of our Su-
preme Court in Indiana, which have specif-
ically declared that the saloon business is a
lawful business and that the license sys-
tem is valid. Let me recognize and admit
these decisions fully, and all there is in
them, as precedents upon this question.
The courts of England had held, and the
public had acquiesced for more than fifty
years, that slavery was a legal institution ;
but I have given you the facts and history
of the case in which Lord Chief Justice
Mansfield, more than one hundred years
ago, speaking for the King's Bench and to
the civilized world, utterly disregarding
all precedents, uttered the Christian and
civilized sentiments of the people, as these
sentiments had grown to be, that such an
inhuman and immoral institution could
not be lawful.
I have called your attention to the decision
2O4 MORAL LAW AND CIVIL LAW
of the Supreme Court of Indiana in 1879,
which declared hat a lottery system had be-
come a part of the chartered and vested
rights of the Vincennes University as a
perpetual right, and based that decision
upon numerous precedents; but the same
high court, to its praise and honor let it be
said, at a later day, looking again at the
question with more light, overruled its own
decision-, disregarded all the precedents
upon which it was based, and declared as
the law of Indiana that the lottery busi-
ness could not be given legal existence nor
vested rights in our State, because of its
immorality.
I have called your attention to the fact
that, though slavery had been recognized
by the Supreme Court of the United States,
and acquiesced in by the people of the na-
tion as a lawful institution for more than
two hundred and fifty years, yet there came
a day when it was necessary to destroy and
abolish that institution, though it existed
only as a domestic institution in individual
States, in order to save the government ; and
that great end was accomplished by a procla-
mation that stands as the greatest act of any
man in the whole history of the nation.
PARTS OF THE SAME THING. 205
Whatever may be the precedents, however
much prejudice, vast wealth, and political
considerations may have been able to claim
and accomplish, the demand of civilization,
the demand of the public welfare, and de-
mand of sound legal principles, from every
source of public safety comes the cease-
less demand that immorality shall not be
licensed nor promoted; "that the greatest
source of misery and crime " shall not be
protected, but must be destroyed.
The Supreme Court of Indiana, in the
case of Haggart vs. Stehlin, illustrated to
the people its power and courage, its high
integrity and regard for legal principles and
sound morality, by a great advance in its
declaration of the law as founded upon mo-
rality. Whatever that high court may have
held at different times in years gone by,
there is a day coming, and I believe near at
hand, when it will strike a blow, as did the
King's Bench in England at slavery, and as
our own Supreme Court did at the lottery
business, and destroy the license saloon sys-
tem of our State, as will other courts of
other States.
Indiana boasts of her institutions of learn-
ing, churches, patriotic devotion, and the
14
2o6 MORAL LAW AND CIVIL LAW
prowess of her sons on the field of battle.
She takes just pride in her record for loyalty.
Let me call attention to the fact that loyalty
to the State, to the Union and government,
requires that morality shall be maintained
with the same zeal that maintained our
cause against George III and against dis-
union.
There is no disloyalty equal to the partici-
pation in, or consent on the part of the
people that any system of immorality shall
have a camping ground upon our soil. It is
disloyalty and treachery to the government
to support any man for official position who
is dominated by saloon influence.
We have in Indiana many institutions
established and maintained at public ex-
pense, such as Deaf and Dumb Asylum,
Blind Asylum, Insane Hospital, State Uni-
versity, Normal School, Reform School for
Boys, and a School for the Feeble-minded.
There is one other institution for which
there is a crying need, and that is a School
for the Feeble-hearted.
A State and national organization has
been perfected for the special purpose of
maintaining and protecting the saloon busi-
ness. This institution is now flourishing in
PARTS OF THE SAME THING. 207
Indiana. It announces its purpose, among
other things, to control legislation. The
meetings of this organization are not
opened and closed with prayer. It does
not depend on prayer. It defies God and
man. It has tremendous success and power
to overawe and intimidate ambitious poli-
ticians, legislators, and many officers whose
duty it is to enforce the law. Its success
lies in the fact that it is courageous, desper-
ately in earnest, and uses its money and in-
fluence without stint. Whenever the oppo-
nents of this business become as courageous
and consistent as the men who are engaged
in this business, then the victory for sound
principles, law, and justice will be won.
Much is made, and must be, of the office
of love in accomplishing the reformation of
individuals. But love is misapplied if exer-
cised on behalf of immorality or lawless-
ness. These things are not to be loved,
but are to be hated. Love is for humanity,
to be exercised in its behalf and against all
evil influences and institutions. Abraham
Lincoln loved the government of the United
States when he put two million men in the
field, clothed in military uniform, armed and
supplied with munitions and deadly weapons,
2o8 MORAL LAW AND CIVIL LAW
to put down a rebellion by bloody war.
General Grant loved his government and
the flag when he stretched his long lines of
blue in the wilderness, and fought it out on
that line with shot and shell and minie ball,
with fixed bayonets and flashing sword, until
he established the supremacy of law.
It is both just to the Union soldiers and
magnanimous to the foes they opposed to
say that the late civil war would have been
short-lived if it had not been that General
Robert E. Lee and the armies he com-
manded loved a cause which moved men to
stand in the jaws of death undaunted.
If a man loves the right he hates the
wrong. If a man loves God he hates Satan,
and loves God in just the same degree that
he hates Satan.
If we love the families of the drunkard
and the drunkard himself, and seek their
welfare, we hate the saloon institution as
we hate Satan. We make much of the
unbounded love of Christ, and this cannot
be overdone. The great purpose of his life
and ministry was to teach this love ; but
we fail to comprehend the whole character
of the good Master if we study only one side
of it.
PARTS OF THE SAME THING. 209
He went one day into the temple and saw
there those who sold oxen and sheep and
doves, and the money changers. These peo-
ple had been licensed by the high priest for a
large license fee to conduct these enterprises
in the temple. When He who loves as no
man ever can love saw this pollution of the
temple and the wickedness of that license
system, with fire in his eye and thongs in
his hand he drove those people out of the
temple. I imagine I can see the panic that
reigned in that sacred inclosure as the gates
flew open and the animals and men rushed
pell-mell into the streets to escape pursuit
and wrath.
It is high time that Christian civilization,
as it contemplates the wickedness, devasta-
tion, and ruin produced by a licensed saloon
system, should rise in righteous indignation,
and with fire in its eye drive this business
and the system out of our State. And the
same duty and the same demand rest upon
the citizens of every State in the Union.
There are other very important matters of
public interest which deeply concern good
morals. These require and must have our
attention ; but the saloons and liquor busi-
ness have combined, and stand alone as
210 MORAL LAW AND CIVIL LAW
organized evils and immoral influences.
This combination appears publicly in the
field, waving its banner, with its lines
formed, has issued its declaration of war
and announced its purpose to maintain, at
all hazards, the most demoralizing of all
evil influences and the present system of
public consent and lawlessness. This or-
ganization exhibits its muster roll, shows
its force, calls attention to its bank account.
This organization must be encountered and
overcome by manly and patriotic effort. I
am not urging nor expecting that all these
great undertakings shall be accomplished in
one day, or that any one of them can be
disposed of at once; but the demand and
duty upon us are that every day shall
record an honest day's work toward the
accomplishment of the ends sought. There
must be steps taken, and there can be only
one step taken at a time, but every step
should be an advance. Earnest, candid
men have no time for equivocation, evasion,
or subterfuge.
The Jordan takes its rise from the melt-
ing snows of Mount Hermon, is augmented
by the pure streams and rivulets that empty
into it. It flows through what was once the
PARTS OF THE SAME THING. 211
richest land and the most beautiful valley in
the whole world. Its waters are clear as
crystal, delicious and refreshing to the
taste ; but it empties into the Dead Sea, in
the waters of which there is no living thing,
and on the shores of which nothing can grow
save the apples of Sodom. So the temper-
ance movement takes its rise from the melt-
ing sympathy of human hearts ; on its course
receives and is augmented by the prayers,
energy, and contributions that flow into it
through every valley and from every pure
fountain. But we have allowed the enemy
to dig the channel and divert the course
until this pure, clear, refreshing, life-giving
stream has been emptying into the Dead
Sea of political corruption, which is filled
with dead men's bones and colored with
human blood. The flow cannot and must
not be stopped; but the natural channel
must be opened, so this stream shall empty
into the great ocean of God's love.
I looked on the cyclorama of Gettysburg
— the greatest picture of a real battle that
was ever painted. That is the picture of
war with all its horrors. After having been
enrapt and held to the most intense con-
templation of that bloody scene, I turned
212 MORAL LAW AND CIVIL LAW.
away and said to myself, Can it be possible
that a people speaking the same language,
citizens of the same government, bound by
the ties of consanguinity, revering the same
history and ancestry, can be brought into
such a struggle as this? That battle ought
never to have been fought, and never would
have been fought if the citizens of this re-
public had performed their patriotic duty
in time of peace, and had not suffered them-
selves to be misled by mere partisans into
delusions and efforts to maintain an im-
moral and inhuman institution.
Shall we be swayed by prejudice, con-
trolled by designing men, cower before the
lawless, betray the government we claim to
love, and leave to another generation to
settle, 'by the flow of blood and awful an-
guish, questions which we ought to settle,
or shall we learn lessons from the past and
avoid disaster?
There can be no safety for any people or
government outside of sound legal princi-
ples. There can be no sound legal principles
unless founded upon morality. These facts
must not be confused, obscured, nor lost
sight of.
THE END.
;
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