CHAPTER XIV

WHY THE AMERICAN PEOPLE HAVE A CONTEMPT

FOR LAW

We are now to consider the second cause in the second period of American development the contempt in which a people, originally law-abiding and taught to have a veneration for law, came to hold the law.

One of the things to distinguish American civilization from that of other countries is the light respect in which law is held by Americans. So marked is this indifference that it has formed the burden of the theme of numerous writers and observers, both domestic and foreign, who accept it as a fact, as a fact it is.1 Various explanations have been offered.

1

1 Merely to mention by title and author the magazine articles written and the addresses delivered by prominent Americans in the last ten or fifteen years, on American disregard of the law, would occupy considerable space. It may be recalled that in 1895, when Mr. Bayard was Ambassador of the United States to the Court of St. James, in the course of an address he spoke of his countrymen as “an unruly people," for which he was censured by vote of the House of Representatives. In June, 1905, President Taft, then Secretary of War, in an address to the graduating class of the Yale Law School, declared that the laxity in the enforcement of law in the United States was a disgrace to the country. Doctor Parkhurst, in Munsey's Magazine, January, 1908, writes on "Law and its Contemptuous Disregard"; the Century Magazine, June, 1910, discusses "Lawlessness the National Vice"; Governor Hughes, of New York, in his oration before the Phi Beta Kappa Fraternity of Harvard, June, 1910, dwelt on “The Spirit of Lawlessness” and its cure; lawlessness and the American disregard of law has been the theme for editorials in many of the leading American newspapers.

Politics, the immigrant, and the lust for wealth are the convenient excuses offered, yet none of these reveal the whole truth. In the attempt to find the cause, the impression is created that the American disregard for law is of modern growth, which is accepted by certain investigators as proof that democracy is a failure and lowers the moral tone of a people; or the theory is advanced that morally the Americans have deteriorated since they set up a government of their own, and that American institutions, or again, in other words, democracy, is fatal to a high standard of ethical conduct. We must look for the reason, not in the events of to-day or yesterday, but at the beginning of the nation; we must trace back effects to their first causes in the same way that we have seen that mental and political characteristics are the result of physical and social influences; and we shall find that, while democracy per se is not to blame, a mistaken political philosophy and the pressure of material expansion implanted in the American that contempt for law which has threatened the welfare of society.

A political philosophy that was foolish, and may without disrespect to its authors and believers be termed childish, made men believe that by substituting the voice of the people for the authority of a king or a governing class, it would be possible to change human nature. The birthday of a new world was at hand, Paine declaimed.1 Belief in this ideal

1 Paine: Appendix to Common Sense, p. 77.

ism was shared by hard-headed practical men of affairs as well as by doctrinaires and visionaries, by philosophers no less than by poets, by the educated as well as the unlettered. The search for the philosopher's stone was at last to be rewarded. It was easy to transmute the metals if only the missing element could be discovered. Human nature was to be transformed and the base refined, because democracy and a constitution had been substituted for the kingly power and the uncertain mood of parliament.1

It had been recognized in the past that government was law and law was force; consequently all government rested on force. To the philosophers who created the American Constitution, force was abhorrent, although they had not hesitated to resort to force to obtain a government that should rest on the consent of the governed. In the past, "laws of Nature and of Nature's God" had less weight than laws of man and of man's sovereign; liberty and the pursuit of happiness man might possess if he could, but they were not "unalienable rights." Democracy had sought to make happiness the end and aim of existence, believing that only conduct of the "ultimate highest good" would produce happiness; and as men desired happiness above everything else, they would so regulate their conduct as to make

1 "Revolutionary politics have one of their sources in the idea that societies are capable of infinite and immediate modifications, without reference to the deep-rooted conditions that have worked themselves into every part of the social structure." - Morley: Burke, p. 53.

them contribute to and share in the general fund of happiness. Theoretically this should have made every man a strict observer of every law and quick to rebuke even the smallest infraction. Pushed to its logical conclusion, a democracy needs no laws.

When government, which is law, rests on force, fear of its violation is the deterrent, for the punishment is swift to follow the transgression; and the law in its infancy knew no mercy; it was believed that the protection of society demanded severe penalties. A government that exists by consent of the governed, and in which every man takes part, excites less reverence, for surrounding the temporary ruler of the people elected by themselves there is no such mystery as envelops chief or high priest or king, who enjoys his power by divine right. Laws may be broken with greater impunity, for they are not deep-rooted in the convictions of man and made venerable by their semi-divine origin and the superstition of tradition; they are simply customs reduced to terms for the convenience of society.

It would be possible to write the psychology and development of the American people traced through their respect for and indifference to the law; and the investigation would show three well-developed phases.

The first would be when America was English and the law held men in its thrall and was a brutal and stupid despot; when the law was worshiped as slavishly and superstitiously as the church; when

the law, like the church, threatened and punished and terrorized, but made no appeal to humanity or the better nature of man; when against the inexorable fiat of the law appeal was as hopeless as from the doom pronounced by the church.1 Then came the second phase, when man rebelled against the tyranny and cruelty of the law and the church, when he held his body and his soul to be sacred, and was no longer content to be the creature of secular authority, and revolted to gain his freedom.

It was this second phase that was coincident with the adoption of the American Constitution, and laid the foundation for the careless observance of law that has given America such an unenviable reputation. There was, as we have pointed out in the previous volume, a new spirit working in man, who was now for the first time passionately possessed with the belief that he was his own masterhis own master spiritually and physically; that all that went to make man — his body, his mind, and his soul was his to do with as he pleased and to make such use of as he saw fit; and he no longer regarded himself subject to the decree of a spiritual director or a temporal master. It was for man to settle questions of right with his own conscience, and not blindly to obey the command or the dictation of one placed in authority over him.

These things produced in the American that in

1 "The state teaching men what they are to do, and the church teaching them what they are to believe." — Buckle : History of Civilization, p. 528.