the empire state, not certain that the teeth of the volstead act were biting it hard enough decided on april 4, 1921, that it would pass what is known to the man in the street as the mullan-gage law. it begins as follows:
“sec. 1. the penal law is hereby amended by inserting therein a new article, to be article one hundred and thirteen.”
it goes on to say: “the possession of liquors by any person not legally permitted under this article to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this article; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used.”
as every one knows, in ordinary cases a defendant is considered innocent until proved guilty. but here we see a dangerous reversal of that idea in jurisprudence. anyone carrying a flask would be considered, in the eyes of this law, a bootlegger, a purveyor of illegal goods—in fact, a criminal even though no evidence had been produced to prove him121 so. in our anxiety to purify the nation, we have distorted old established laws, turned reasoning topsy-turvy, and once more made ourselves ridiculous—in the empire state at least.
“of making many laws there is no end,” one might paraphrase ecclesiastes. in his remarkably interesting book, “our changing constitution,” charles w. pierson points out the growing dangers which confront us, because of our repeated amendments and addenda. he sounds many a warning, and every american should read his brief but profound volume.
“whatever view one may hold to-day,” he writes, “as to the question of expediency, no thoughtful mind can escape the conclusion that, in a very real and practical sense, the constitution has changed. in a way change is inevitable to adapt it to the conditions of the new age. there is danger, however, that in the process of change something may be lost; that present-day impatience to obtain desired results by the shortest and most effective method may lead to the sacrifice of a principle of vast importance.
“the men who framed the constitution were well advised when they sought to preserve the integrity of the states as a barrier against the aggressions and tyranny of the majority acting through a centralized power. the words ‘state sovereignty’ acquired an odious significance in the days of our civil struggle, but the idea for which they stand is nevertheless a precious one and represents what is probably america’s most valuable contribution to the science of government.
“we shall do well not to forget the words of that staunch upholder of national power and authority, salmon p. chase,122 speaking as chief justice of the supreme court in a famous case growing out of the civil war:
“‘the preservation of the states, and the maintenance of their governments, are as much within the design and care of the constitution as the preservation of the union and the maintenance of the national government. the constitution in all its provisions, looks to an indestructible union composed of indestructible states.’”
yet today what do we find? the states renouncing their sovereignty, abrogating their authority to the central government, time and again diminishing their own strength, losing sight of one of the very things on which the safety of our country depends. worse than that, some of them have attempted to pass laws which seem totally unnecessary, in the light of the already rigid volstead act. witness the state of new jersey, for instance, with the iniquitous van ness act, which, fortunately, was deemed unconstitutional.
early in 1921, mrs. frank w. van ness, while a member of the new jersey assembly from essex county, of which newark is the county seat, introduced the act which provided that “whenever a complaint is made before any magistrate that a person has violated one or more of the provisions of this act, it shall be the duty of such magistrate, and every such magistrate is hereby given full power and authority to issue his warrant to arrest any such person so complained against, and, summarily, without a jury and without any pleadings, to try the person123 so arrested and brought before him and to determine and adjudge his guilt or innocence.”
the volstead act plainly states that anyone violating the provisions of that act is guilty of a crime. mrs. van ness’s act was an attempt to have such persons, in the state of new jersey, guilty of disorderly conduct, which would not require a trial by jury.
the new jersey legislature passed the van ness act, and other state prohibition laws, at its session of 1921; but on february 2, 1922, the court of errors and appeals of new jersey held that a number of the provisions of the van ness act were unconstitutional. the prevailing opinion was written by chancellor walker, but there was a difference among the judges as to the constitutionality of some of the different provisions of the act, and other opinions were also written. the court of errors and appeals is the court of last resort in new jersey, and by its judgment it reversed the supreme court finding which had theretofore held the van ness act to be constitutional.
mrs. van ness was a candidate for re?lection in the fall of 1921, but was not re?lected. is there no significance in this fact?
as old as magna charta is the right of any citizen to a trial by jury, when convicted of a crime; and as old, too, as that sacred document, is the theory that one is innocent until proved guilty. yet the volstead act has paved the way for politicians124 without vision to seek to destroy these inalienable rights.
“where there is no vision, the people perish.”
among other things, in the opinion handed down in 1922, chancellor walker wrote:
“the act entitled ‘an act concerning intoxicating liquors used or to be used for beverage purposes,’ passed march 29, 1921, the short title of which is ‘prohibition enforcement act,’ commonly called the van ness act, authorizing convictions for violation of its provisions by magistrates without trial by jury, violates article 1, sec. 7, of the constitution of new jersey, 1844, which provides, inter alia, that the right of trial by jury shall remain inviolate; and also id. sec. 9, which provides, inter alia, that no person shall be held to answer for a criminal offense unless upon the presentment or indictment of a grand jury.”
and another judge rendered this opinion:
“the van ness act is invalid to the extent that it makes violations of its provisions disorderly acts as distinguished from those which are criminal in their nature because, prior to its enactment, the congress of the united states had already declared by necessary implication in the federal statute, commonly known as the volstead act, that a person who violated any provision of the eighteenth amendment to the federal constitution, should be guilty of crime.”
the constitutional provision in the state of new jersey has long been known to be as follows:
“the right of trial by jury shall remain inviolate; but the legislature may authorize the trial of civil suits, when125 the matter in dispute does not exceed fifty dollars, by a jury of six men.”
chancellor walker further pointed out that the constitution of 1776 had contained this provision:
“and ... the inestimable right of trial by jury shall remain confirmed as part of the law of this colony, without repeal, forever.”
but though the van ness act was declared unconstitutional the work of suppression went on. the hobert act took its place. the association against the prohibition amendment (new jersey branch) protested to governor edwards when the bill was passed. they pointed out that chancellor walker, in his opinion in the court of errors and appeals, on page 18 of the decision dated february 2, 1922, had said:
“new jersey need not have passed any enforcement act and could have left the field wholly to federal endeavor under the volstead act.”
they likewise pointed out that there were no advantages whatsoever to the state of new jersey proceeding from such an act; but the disadvantages were numerous and severe. it put upon the state courts all the work, and upon the citizens of the state all the expense of enforcing the national law. they also showed how tyrannical the act was in certain sections. section 16 reads as follows:
126
“any officer engaged in the enforcement of this act who shall search any private dwelling, as herein defined, which is occupied as such dwelling, without a warrant directing such search, or who, while so engaged, shall, without a search warrant, maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be punished for a first offense by a fine of not more than one thousand dollars, and for a subsequent offense by a fine of not more than one thousand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment.”
it was shown that this section had been taken, word for word, from the amendment, forced upon the united states senate by the house in the willis-campbell bill and passed by the senate on november 18, 1921. the stanley amendment originally offered in the senate for the purpose of serving as an enforcement act to the fourth and fifth amendments to the constitution was passed unanimously by the senate after a thorough investigation and after having been accepted by senator sterling who had charge of the bill. the house refused to accept the amendment and put into the bill the following section:
“that any officer, agent, or employee of the united states engaged in the enforcement of this act, of the national prohibition act, or any other law of the united states, who shall search any private dwelling as defined in the national prohibition act and occupied as such dwelling, without a warrant directing such a search, or who while so engaged shall without a search warrant maliciously and127 without reasonable cause search any other building or property shall be guilty of a misdemeanor,” etc., etc.
senator ashurst, of arizona, a dry senator, and one who said he had never cast a wet vote in his life, refused to sign the conference report on the ground that the language of this section did not protect the people in their rights. he was joined by other dry senators for the same reason. senator reed, of missouri, than whom there is no greater constitutional lawyer in the united states, in calling attention to the words, “shall without a search warrant maliciously and without reasonable cause,” had this to say:
“what is the plain inference to be drawn from that language? first, you must have a warrant to search the house. second, if while you are searching the house you proceed without a warrant to search the other building or property you are not guilty of offense unless two things concur: first, you must have been without any reasonable cause to search the other buildings or property, and, second, you must have acted maliciously. notice the language. it is worth your while. you are legislating for 110,000,000 people and you are putting this authority into the hands of irresponsible men, proceeding without bond, armed with big guns, and sent out among the people.”
the hobert bill invites prohibition agents and officers to go anywhere they desire without a search warrant, with the absolute assurance that in their unlawful occupation they are immune under the law. “malice” is the most difficult thing in the world to128 prove—with the possible exception of “without reasonable cause.”
as a friend of mine, william l. fish, says, “the van ness act was the bill sykes of legislation, while the hobert act is the iago.” between two such arch villains there is little choice. we are not reforming the country, but deforming it.
if the people are to lose such cherished rights, there is little hope for america. blind indeed are those who cannot read the writing on the wall. surely there must come a reaction against such intolerable legislation.
already one senses a change of feeling; for millions of us cannot be wrong when we claim that disregard of the laws of the land is as serious a problem as the old problem of the corner saloon. if, in correcting one evil, we bring to life greater evils, are we on the right track?
solemnly up and down that room the officer walked, glancing here and there, after the manner of a soldier in the late war standing guard over military prisoners.
