Leonard Woolsey Bacon.

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in carriages, while pickpockets travel on the treadmill.
But is this a good reason for not punishing pickpockets ?

(2.) Suppose that the tempter is a guiltier sinner than
the other party, he is not guilty of the same sin. The guilt
of the receiver of stolen goods is very commonly greater



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THE TEMPERANCE REFORMATION. 321

than that of the burglar, but it is not burglary. The
suborner to perjury is doubtless a worse man, often, than
the perjurer. But was it ever held, in any legislature,
that the existence of severe enactments against suborna-
tion was a good reason for letting the perjurer go free ?

(3.) All these discussions of the comparati.ve degree of
guilt of accomplices in crime, are of doubtful profit. But
if we were disposed to defend the case of the shopkeeper
as against his customer, there is a good deal to be said on
his side of the question. The whole question depends on
circumstances. It depends partly on the comparative
intelligence of the parties. If the drunkard is an
intelligent American citizen, trained in the church, the
religious family and the common school, to a knowledge
of his duty, and the vender is an illiterate and outcast
negro, or an Irishman that never heard of Father Mathew,
and knows nothing of the Temperance cause, except that
he has been told by an eminent citizen to vote against
the Maine law, the chances are that the guiltier party is
the drunkard himself. It depends partly on their know-
ledge of the consequences of their respective acts. The
drunkard cannot but know the ruin he is bringing thereby
on himself, and on his family, and on society ; the seller
doesn't need to know — doesn't want to know — takes
pains not to know, nor think. It depends partly on the
motives of the parties. The seller may be moved by the
necessity of daily bread for himself and for his house-
hold ; the drunkard can have no motive but the mere
gratification of a selfish passion, reckless of the misery
which he inflicts upon those whom he ought to love most
dearly.

(4.) But inasmuch as it is too much to hope that the

21

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322 THE TEMPERANCE REFORMATION.

fallacies that are bound up in the hearts of old professional
"reformers" will ever be driven out by counter-argument r
it may be well enough to help them complete the circle of
their vicious reasoning, and thus get back to their point
of departure. If the crime of tempting to drunkenness is
so odious as to have become the exclusive object of public
vengeance, what shall we say of the guilt of those who
deliberately tempt their neighbor into the crime of liquor-
selling? If the drunkard cannot be punished for
debauchery, because he is a u poor victim," is not the
grog-seller a u poor victim " too ? and may we not,
perad venture, punish the wretch who deliberately and
repeatedly approaches his neighbor with sixpences and
shillings, to awaken within him the u accursed greed of
gold," and lure him on to the crime of liquor- dealing ?

But " the poor drunkard!" He is not to be easily
mulcted or imprisoned " without the meed of some
melodious tear" from his temperance friends. Don't punish
the poor drunkard ! his passions are so strong, and his
power of resistance so weak. Punish somebody else; do!"
They adopt the foolish fallacy, which is a good deal
broader than the Temperance Keformation, — so broad that
it under-runs a great deal of general legislation .and law
logic, — the fallacy that the weaker a man's will and the
wilder his passions, the less he needs the control of law.
If drunkenness is a mere disease (as reformed drunkards
are fain to insinuate), — if will and conscience have
absolutely no concern with it, why there is no more to be
said nor done but to send the patients to a hospital and
physic it out of them. But the reformed drunkards them-
selves who suggest the idea are a living refutation of it.
The fact that they do abstain shows that they might have



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THE TEMPERANCE REFORMATION. 323

abstained before. They are a living proof that the treat-
ment which their u disease " needed was the most heroic
moral treatment, — the plainest exhibition of their
criminality, and the kindest encouragement to reform,
mingled with warnings, not to be trifled with, of the most
stern and inexorable punishment in case of persistence in
crime. The kindest thing for the weak and irresolute, and
" morally insane," is to stiffen their moral nature with
the strength of law. The cruel and fatal thing is to remove
from them alike the fear of punishment and the hope of
amendment, and, by telling them that they are impotent
and helpless, to make them so. And this is what the
Temperance Reformation has done. 1

4. In applying legal measures to the matter of liquor-
selling, let the new Temperance Reformation still
remember that it is only as accessory to the crime of
drunkenness, in a nearer or more remote degree, that the
liquor trade becomes properly amenable to the criminal
law. It will thus avoid the mischievous confounding of
right and wrong, which has been wont hitherto to frustrate
both argument and law. It will be, not u the liquor
traffic," both right and wrong, useful and mischievous,

l. We have no intention, in anything 1 we have here or elsewhere sai ', of dis-
paraging the Inebriate Asylums in their proper nse ; nor of disguising the faet
that the thirst for intoxicating liquors does sometimes grow to such a morbid
intensity that the best and wisest thing for the subject of it may be, for a time, to
seclude him from the possibility of indulging it. But when exceptional cases of
so-called u moral insanity " are taken as the basis of public reform or legislation ,
or when the principle is accepted that people generally are more or less insane,
and therefore irresponsible, it is time for the sane people to look out for them-
selves.

In every well-regulated mad-house a stringent system of rewards and punish-
ments is deemed essential, and is found to be effective,* If society generally is
full of maniacs, liable constantly to acute attacks of criminal impulse, is it good
u treatment " to inform them, through legislative acts, and jury verdicts, and
judicial charges, that if they misbehave they shall not be hurt for it ?



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324 THE TEMPERANCE REFORMATION.

which it will be attempted to crush, but the wicked and
hurtful traffic in liquor. To come more to matters of
detail, the coming Reformation must keep in mind, in all
its restrictions on trade :

(1.) That the Christian law of liberty and love, under
which a good man waives his lawful privileges for the
benefit of weak consciences, cannot be enforced by act of
legislature or church, nor by edicts of the Temperance
and Tract Societies. The moment you enforce it you
kill it.

(2.) That there are some things that " the law cannot
do, in that it is weak through the flesh ; " and that when
the law has suppressed the evil which it can conveniently
reach it has not thereby sanctioned the offences which it
cannot reach.

Look now at the trade in those articles that are liable
to be perverted into the means of intoxication. It may be
classified, for the present purpose, in three categories,
according to the guilt or innocence of the dealer :

(1.) Those sales which are plainly right.

(2.) Those sales which, by their probable consequences,
are obviously wrong.

(3.) Those sales the consequences of which are doubtful*

As for the first class of dealings in liquor, a wise and
good law will be studiously careful to interfere with them
as little as possible. If it were a mere matter of personal
liberty of the " pursuit of happiness " through an innocent
calling, this course would be required by the spirit of our
constitutions. But this part of u the liquor traffic " is
not merely innocent, it is beneficent, — it is necessary.
And what an intolerable annoyance to the public as well



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THE TEMPKKANCE REFORMATION. 325

as to individuals is the interdiction of it or the confine-'
inent of it to a government monopoly, is witnessed by the
general disregard of the " Maine Law," even in the most
law-abiding communities and by the best citizens.

As for the second class of dealings, they must be
prevented and punished just so far as they can be defined
and reached by legislation. And this is what the old
laws, which have been denounced with so much contumely,
were honestly careful to do. They forbade tippling-
houses, high and low, great and small ; they interdicted
Sunday liquor-selling; and they prohibited all sales of
liquor to minors, to apprentices and students, and to
common drunkards, as being sales evidently liable to be
turned to an evil use. And these prohibitions commended
themselves to every conscience as wise and right. l

u But is this all that we can do ? "

Well, suppose you try to do this first, before you ask,
What next ? This is more than you are doing now, or
have ever been able to do heretofore, for any considerable
extent of time or space, by prohibitory laws. Try this
first.

The measures we have described are such as will unite
the cooperation of the mass of society, both of good men
and of bad. For society and government, in the main, are
always on the side of sound morals. Even under the

1. The perpetual protest of the temperance orators against the prohibition of
the sale of liquor to drunkards, illustrates a great many of our positions at once.
The reason for this prohibition in the old laws was not that the sale of liquor to
temperate men might not sometimes be more hurtful than the sale of it to
drunkards, but that the latter might confidently be presumed to have a bad
result; while, as to the former, the presumption, in individual cases, was
uncertain.

The old laws of some of the Puritan colonies on this subject— Blue Laws, if
you like to call them so— were models of wise, humane legislation, which the
reformers who sneer at them would do well to study.



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326 THE TEMPERANCE REFORMATION.

•corrupt despotism of Nero, the magistrate was on the
whole a terror to evil doers and a praise to those that did
well. The only way of effectively protecting from public
justice the evident sin of the enticer to drunkenness, is the
way adopted by the Temperance Reformation, of
perplexing and bewildering the public mind by confounding
this evident sin with other things, which are as evidently
innocent and honorable.

These two classes of dealings in intoxicating liquors
having been disposed of, the question will still remain :
What shall be done respecting that third class, lying on
the doubtful ground between the two ? Into the large
discussion of this question we shall not enter here. We
will venture only one suggestion. If, with regard to
these, the state should conclude that much needs be left
to the discretion of the dealer, that therefore the dealer
ought to be a person of special prudence, and that the
ordinary trade in intoxicating liquors ought not
to be left open indiscriminately to all ; and if the state,
accordingly, should enact that none should engage in it
without the special permission of the authorities, nor
without binding themselves from the abuse of the trust, —
the state would not, by such provisions, be sanctioning a
crime, nor making itself responsible for abuses which it
had labored to prevent.



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THE OPPROBRIUM OF ENGLISH LAW. 327



XV.



THE OPPROBRIUM OF ENGLISH LAW



A SERMON AGAINST THE PUBLIC CRIME OF THE DERELICTION
OF LEGISLATION FOR THE PROTECTION OF THE FAMILY. 1



* He that judgeth his brother, judgeth the law." James, iv, 11

Tor a week past the whole State of Maryland has been
-witnessing, through the newspapers, a capital trial of
^extraordinary interest and of very peculiar character. A
young homicide is on trial for his life. A jury is empanelled
and sworn to render a verdict according to law and facts.
The instructions of the Bench and its rulings on questions
of evidence are faithfully conformed to the accepted
principles of evidence and of law so as to confine the
investigation to the one question of the prisoner's innocence

1. Preached in Baltimore, Sunday evening, April 23, 1871. The substance of
4he argument had previously been delivered and published, on a like occasion,
in New York.



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328 THE OPPROBRIUM OF ENGLI8H LAW.

or guilt. The course of counsel for the prosecution and
for the defence is ostensibly directed to the same end —
the State attempting to establish the fact of homicide,
with its implication of malice ; the traverser making a
show of proving : first, that the act was done in self-
defence ; and, secondly, that it was done in a moment of
irresponsible insanity.

All this is plain and straightforward enough. All this,,
if such offences must needs come, is very right and honor-
able to the administration of justice in the State. But as
we observe the progress of the trial, it becomes perfectly
obvious, even to a stranger, that the real defence is one
which it is forbidden to introduce, and which, neverthe-
less, is introduced : which it is forbidden to rebut, and
which, nevertheless, is rebutted by the prosecution ; which
the jury are sworn not to take into consideration, and
which, nevertheless, they are universally expected to
consider, and unanimously do consider, and on which with
what is commonly ^'accepted as a sort of pious perjury,
amid the irrepressible applauses of the crowd, they render
their verdict. It is clearly enough not the manslayer who
is on trial, but the man slain. The defence of the homicide
in the forum of public opinion, the real defence of it — not
the legal fiction of a defence — in the criminal court is
that the victim had been guilty of seduction — the crime of
seduction I was about to say : but seduction is no crime
under Maryland law. The Court are trying not an
assassin, but a dead man, and an absent woman. The sham
defence of the prisoner at the bar is only set up to be
dropped again.

The jury having considered the case of the corpse, bring
in a speedy verdict of served him right, and the prisoner



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THE OPPROBRIUM OF ENGLISH LAW. 32$

at the bar, being acquitted on the pretext of his having
been a temporary maniac, or of his having been assaulted
with deadly weapons and forced into an unwilling homi-
cide, instead of being tenderly committed to the charge of
physicians or condoled with for the painful accident that
had befallen him, is hailed with shouts and cheers, and
carried aloft on the shoulders of the crowd as a hero, a
deliverer of society from the presence of a criminal so
heinous that it is not fit that he should live.

A case of peculiar character I have called this. It
belongs to a peculiar class, but in its class there is nothing
peculiar in it at all. It varies in names, and scene, and
circumstances, but in no essential respect, from the general
course of judicial dealing in many of the United States
with cases of the assassination of seducers and adulterers.
This fact is supposed to mark, and really does mark, the
abhorrence of the people of those States for the crimes
that provoked the bloody deed.

But pause a moment. What is the measure of the
abhorrence of these States towards crimes against domestic
purity and honor ? Suppose that the accusation uttered by
the lips of the young assassin over the body of his victim
writhing in the death-agony were true without qualifica-
tion or mitigation : suppose the latter was the shameless
seducer he is declared to be, wherein has he offended
against the State? What crime has he committed?
Search the statute book and see ! It is not named upon,
it. Look through the criminal code. For any hint which
the people of Maryland have ever given in any form of
law as to the heinousness of his act, the seducer may stand
before the whole community, may sit with the wisest and
most honored of her counsellors in high seats of dignity, a



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330 THE OPPROBRIUM OF ENGLISH LAW.

blameless man. If he could be convicted of the deed under
^very imaginable aggravation, it would subject him to no
penalty, it would disqualify him from no honor or
emolument in the people's gift. But he cannot be convicted
of seduction, for that crime is not named as a crime in the
laws of this Commonwealth. There is provision, indeed,
for civil process by which any differences arising between
man and man on account of it may be adjusted by an
assessment of damages, but nothing more.

And now is not your public sentiment a little absurd
which roars so fiercely around the steps of the seducer,
putting a Cain's mark upon him u that every one that
findeth him may slay him," defending the murder of him
by the authority of judicial precedents, on the ground that
he is a criminal so flagitious that it is not fit that he
should live, and yet when you are asked to name the
crime of which he is guilty, you are at a non-plus, and
search the statute-book and criminal code and digest of
decisions from title-page to tail-piece in vain. Plainly
either public sentiment is wrong, or the laws are wrong.
If the honorable instinct which rises to vindicate the
violated sanctity of the family is not a depraved and
malignant passion— if the loathing with which society
yearns and retches to vomit out the adulterer is not
merely a morbid squeamishness — if the worthy indignation
which burns against him in the breasts of honest men, and
seethes in the public heart on any flagrant occasion until
it endangers the barriers of public order, is not a whim-
sical and mock-chivalrous notion, then the law of this
State is an insult to the law which God has written in his
Word and on the heart of every man.

That which is true concerning the sin of seduction, is



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THE OPPROBRIUM OF ENGLISH LAW. 331

also true concerning the graver, more definable and
cognizable sin of adultery. In most nations, civilized
or barbarous, the crime against the sanctity of the family
has been counted among flagitious felonies. Commonly
the fit penalty measured out to it has been the penalty of
death. There are exceptional States in our Union in
which adultery is still recognized as a crime and punished
with grave and infamous penalties. Such is the State of
Louisiana, whose penal law is modelled upon the Code
Napoleon. Such are those States of the northernmost
zone whose traditions of law have been affected by that
msest and most splendid stroke of juridical reform in
modern history, by which the Puritan colonies of New
England cast behind them into the ocean the whole body
of English traditions and statutes, both secular and
-ecclesiastical, and reverted to the divine model of legisla-
tion in the code of Moses as the pattern according to which
their jurisprudence should be framed. 1 But concerning the

1. The sagacious act of the New Haven colonists by which they determined
that the Code of their infant republic should be that contained in the books of
Moses, so far as this was neither local nor ceremonial, until the colonists should
have time to apply the principles of the same in laws more exactly suited to
their circumstances — has been travestied in u Knickerbocker's History " as a
resolution "to be governed by the laws of God until they could make better for
themselves." And it has been both ignorantly and malignantly denounced as
the act of narrow-minded fanatics going baek from the attainments of Christian
civilization to a barbarous and sanguinary code which the world had long out-
grown* It is the highest possible vindication both of the character of the Puritan
colonists, and of the divine wisdom of the Mosaic law, to compare the code of
New Haven colony as provisionally fixed by that act, with any code then
existing in Kurope, and especially with the whole complex system of English
law which they thereby deliberately, purposely and expressly repudiated.
Their "sanguinary code" was the most humane body of laws then extant in
Christendom. Their simplicity of procedure, disembarrassed by a stroke of the
pen from the incumbrances of many generations, became a model and incite-
ment to law-reformers of other States. And, as the argument of this sermon
shows, their penal legislation had a dignity of moral tone to which the most
advanced improvements in law-reform have not yet in all respects attained. As



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332 THE OPPROBRIUM OF ENGLISH LAW

majority of our States it must be said that, following the
base and demoralizing tradition of English law, they
know no such crime as adultery. Before the State it is
innocent. It may give rise to disagreements between
citizens, in which the aggrieved party may assess the
value in cash of the grievance which he has suffered, and
the affair may be equitably settled by the award of a

jury.

The law of Maryland differs from that of most of the

States ; for here there is a law against adultery. And the

penal law of any State may be taken as the gauge of the

moral sentiment of the public towards the crimes therein

specified and prohibited. According to our code, the

penalty for murder in the first degree is death ; for murder

in the second degree, imprisonment for not less than five

years ; for forgery and fatal duelling the penalty is not

less than five years' imprisonment; for larceny of property

more in amount than five dollars there is a penalty of

from one to fifteen years' imprisonment ; for the crime of

adultery the penalty is a fine of ten dollars. 0, stern and

faithful government ! 0, magnanimous legislation ! T

chivalrous people, that know the comparative value of

property and of honor — that punish the thief with fifteen

years' imprisonment, and the adulterer with a ten dollar

fine !

It is pertinent to the business in hand to remark,

incidentally, that American legislation generally on this

to the often refuted but continually renowed calumny about . u the Blue Laws of
Connecticut/' it is a little aside from our present purpose to remark upon the
injustice of fixing the odium of impertinent and intrusive laws upon a State
whose statute-book was to be distinguished among those of the rest of the
world at that period for its comparative freedom from the then universal fault of
sumptuary legislation.



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THE OPPROBRIUM OF ENGLISH LAW. 333

whole subject of crimes of lewdness seems to have been
.affected by that vile and corrupting theory of government,
that its sole function is the protection of person and
property, and that accordingly it has no concern for the
eare of morality. So long as one does not offend the
fastidiousness of his neighbors, or hurt the value of
property, by public indecencies, it is the general disposition
of the law to protect the libertine in his lawful right of
debauchery, just as it protects any other citizen in his
lawful pursuit of happiness. Against the less destructive-
and ruinous sins of lewdness, most countries, even though
they do not pretend to suppress them, nevertheless record
their reprobation in laws which may be enforced under
favorable circumstances and against flagitious offenders.
But in this State, and in most States besides those in which
the precedents of the Puritan legislation have been
followed, neither prostitution nor its correlated vice is
punishable under any circumstances whatever. Our States
commonly have abdicated this whole department of govern-
ment, leaving this entire class of crimes free of all prohibi-
tion, except when they interfere with the value of property.

Let me illustrate to you the effects of this shameless
dereliction of the State to its divine trust of government,
as exemplified in two facts which occurred to my personal
knowledge as a pastor in the city of Brooklyn, and which
might have occurred, for all the law there was to hinder,
in this city of Baltimore.

The first is that of an affectionate mother, a Christian
woman, who had learned by an experience which I pray
that you may never have to suffer —

u How sharper than a serpent's tooth it is
To have a thankless child."



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334 THE OPPROBRIUM OF ENGLISH LAW.

Once the wayward girl was rescued by aid of the law
for a brief time from her wilful infamy, for she lacked
yet a few months of eighteen years, and the law is zealous
to protect property, and the mother has a pecuniary
interest in the daughter's services till she comes of age.
But the few months pass, and she is eighteen years old,


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