Moral law and civil law parts of the same thing

Preface

BOUT twenty years ago, in an impor-

/V 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 inquiry 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 admitted 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

4 Preface.

each side of the question. In each witnesses who testified to the good moral character of an individual on cross-examination 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 witnesses who testified to the bad moral character on cross-examination specified defects in the moral character of the individual 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 defense 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 character and morality ; not only the uncertainty in the minds of witnesses in these regards,

Preface. |

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 understanding among lawyers and judges, as to the meaning of "morality," ''moral character," and " immorality" in legal contemplation. Truthfulness, or business honesty, or generosity, in fact, every other term that is used in speaking of the characteristics of individuals, seems to be quite well

Preface.

understood. Judges, lawyers, witnesses, and the public generally can deal with these terms with confidence in their understanding, 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 peculiar views of each individual. The impression seems to largely prevail that this question 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 certainty in the public mind generally as to the meaning of Christianity or Christian morality. The great uncertainty in the

Preface.

meaning of these terms arises when they are used in legal contemplation. As morality 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 settling these questions. I claim no new discovery in the meaning of terms, and what I should appreciate as the highest compliment 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 comprehension 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 accomplished my purpose and feel gratified. I have not undertaken to give exhaustive consideration to the subjects considered.

Preface.

but to present and support them in the briefest possible way that I could do, putting the reader upon a line of investigation which can be pursued to great extent and profit. Eli F. Ritter.

Indianapolis^ February 4, 1896.

CHAPTER I. Law of Public Necessity 1 1

CHAPTER H.

Morality is a Fundamental Principle in Civil Government 24

CHAPTER HI.

What is Morality ? 47

CHAPTER IV.

What is Immorality? 66

CHAPTER V.

Legislation and Morality 77

CHAPTER VI.

Common Law and Morality 85

CHAPTER VH.

Morality in Civil Courts 89

CHAPTER Vin.

The Law Grows , loi

CHAPTER IX.

Evil Must Be Suppressed and Good Promoted 138

CHAPTER X.

No Privileges for Evil 166

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 government 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 burning 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 beginning of the Christian era in the following maxim, Salus Populi Suprema Lex,'' which is translated to-day into the English language by the expression, "The Public Welfare is the Supreme Law." While I may not be able to give you the scope and specific 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 1 87 1 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 Chicago what he could do, nor the business men what was expected of him. He proceeded to do what the necessity of the occasion required. He placed powder in the basements of a row of buildings two squares long, and at a given signal blew up and utterly destroyed the buildings, with their contents.

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 authorized and justified by the law of public necessity.

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 pesthouse because she was afflicted with smallpox. He did not consent, claiming that he had made ample provision for her care and the prevention of any public hazard on account of her disease. Regardless of his resistance, his wife was taken out of bed by 2 force, and carried away to the pest hospital. The husband followed the ambulance to the door of the hospital and asked to be admitted, 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 resting place may be marked and visited. Yet that most sacred of all rights has not a feather's weight when it comes 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

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 conscript. 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, condemned, 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 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 property, liberty, the pursuit of happiness, and life itself. All this because he had violated a law of public necessity, made in the interest and for the protection of society. It is true this proceeding was under a statute, yet such a proceeding would have been lawful 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 have used that water for twelve years. I like it, and this is a free country." Nevertheless, 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 because 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 public necessity requires to be done can be legally done anywhere. It is not conceivable that there should be a public necessity and no law to meet it, and the public be thereby left helpless. It can be readily seen that no individual can assert a personal right against the law of public necessity. There is no such things 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 authority, commands that everything which it requires not to be done shall not be done. I present another phase of this law by illustrations. Sees. 4569 and 4570, revised statutes of the United States, applying to every vessel that flies the flag and claims the protection 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 versa, shall be provided with a chest of medicines; and every sailing vessel bound on a voyage across the Atlantic or Pacific Ocean, or around Cape Horn, or the Cape of Good

Hope, or engaged in tlie whale or other fisheries, 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 vinegar, as are required by the preceding section, 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 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 incurred 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 convictions 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. However, as he had acted from good intention, his fine was merely nominal.

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 thousands, or the little whaler that has a few persons on board, may require that lime juice, onions, or other specific shall be provided 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 government, 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 present the proposition, tJiat there is no individual right to refuse to eat, or to drink, or to do any particular thing, or all things, that the public necessity may require.

We citizens may as well get ourselves in readiness to abstain from eating food, drinking water or milk, or any other fluid, or from doing any and every thing that may be condemned by public necessity ; and also hold ourselves in readiness to drink lime juice, eat onions, or any other specific, or do anything 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 propositions of law are correct, then civil government, at best, is legalized tyranny. Let us not misapprehend the effect of these propositions ; let us bear in mind that the government must seek to promote the public welfare. 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 to present the rigid rules and extreme requirements of the law of public necessity. I have done this to meet the prating on personal liberty and individual rights so common in the mouths of American citizens with foreign ideas, and of political demagogues 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 hesitancy 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 notbe misled by falsestatements as to facts, nor fallacious arguments, nor expect good results from the application of false principles.

Chapter II. Morality Is A Fundamental Principle In Civil Government

I HAVE 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 criminal law under the same head. There is no place nor condition where moral law does not obtain, and there is no place nor condition where the duty is to civil law only. The greatest object and purpose of civil government under our civilization is to promote and enforce good morals in the transactions 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.

In the Constitution of Indiana, 185 1, Art. 8, Sec. I, is as follows:

" Knowledge and learning generally diffused throughout a community- being essential to the preservation of free government, 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 being essential to good government, the General 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 intelligence being essential to the preservation of the rights and liberties of the people, the LegivSlature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvements."

Connecticut. Art. 7, Sec. i, Constitution 1818:

' ' It being the duty of all men to worship 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 compelled to join or support," etc.

North Dakota. Art. 8, Sec. 147, Constitution 1869:

' ' A high degree of intelligence, patriotism, integrity, and morality on the part of every voter in a government by the people being necessary in order to secure the continuance of that government and the prosperity 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 truthfulness, temperance, purity, public spirit, and respect for honest labor of every kind."

Delaware. Art. i, Sec. i, Constitution 1831:

" AlthougTi it is the duty of all men frequently 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 promoted, yet no man shall or ought to be compelled 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 religious professions and worship shall forever 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 licentiousness or practices subversive of, or inconsistent with, the peace or moral safety of the State or society."

Kansas. Art. 6, Sec. 2, Constitution 1859:

' ' The Legislature shall encourage the promotion of intellectual, moral, scientific, and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, 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 profession, 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. 1 1 of the Amendments, Declaration of Rights :

" As the public worship of God and instruction inpiety, religion, and morality promote the happiness and prosperity of a people and the security of a republican government, therefore the several religious societies of the commonwealth shall have the right to elect their pastors, contract with them for their support, raise money to erect and repair houses for public worship," etc.

Art. 18, Declaration of Rights:

frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, 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 magistrates 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 virtue, diffused generally among the body of the people, being necessary for the preservation 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 the interests of literature and the sciences, . . . to countenance and inculcate the principles of humanity and general benevolence, 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 promotion of intellectual, scientific, and agricultural improvements. ..."

Mississippi. Art. 8, Sec. 201, Constitution 1890:

' ' It shall be the duty of the Legislature to encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and as soon as practicable to establish schools of higher grade."

Missouri. Art. 11, Sec. i, Constitution 1875:

' ' A general diffusion of knowledge and intelligence being essential to the preservation and the rights and liberties of the people, the General Assembly shall establish public schools."

Nebraska. Art. i, Sec. 4, Constitution 1875:

* ' All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. 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 Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment 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 people 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 religious societies within this State, to make adequate provision for the support and maintenance 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."