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 
 
 becoming 1 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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