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THE INEVITABLE LOGICAL ANSWER OF THE INDIAN
The proposition of the Indianapolis News is, “That no man has any kind of a right to do that which is wrong.” How does the News estimate the saloon? We need not accept the conclusion of the News as to the common law right of the beverage saloon to exist as binding, but, as reasonable men, we can apply its rule to its own estimate and ascertain, for ourselves, what the logical conclusion shall be.
The News has editorially said: “The saloon, as it is now conducted, has no sense of obligation to the public; no appreciation whatever of the duties of citizenship; it buys away from and uses against the people their own police force; it sets itself above the law and against the law; it corrupts politics; it debauches government; it is itself a center and source of lawlessness and disorder; worse than that, it assumes to be an agency of government itself; it arrogates to itself powers that belong only to the people and thereby makes war upon the people.”
We are dealing with the saloon as it is now conducted, not as it is not. Then, applying the test of the News, we are to answer, is it wrong for it to have no sense of obligation to the public; is it wrong for it to have no appreciation whatever of the duties of citizenship; is it wrong for it to buy away from and use against the people their own police force; is it wrong for it to set itself above the law and against the law; is it wrong for it to corrupt politics ; is it wrong for it to debauch government; is it wrong for it to be a center and source of lawlessness and disorder; is it wrong for it to assume to be an agency of government; is it wrong for it to arrogate to itself powers that belong only to the people, and is it wrong for it to make war upon the people? If not, then we should apply Longfellow's statement, “Things are not what they seem.” We might even make it stronger than that, and say, "Things are not what they are." CHAPTER V
THE PURPOSE OF CIVIL GOVERNMENT DETERMINES CONSTITUTIONAL AND COMMON
In the preceding chapter, attention has been called to certain specific statements of the common law standard, and, yet, each of the statements is very broad and comprehensive, sufficiently so, perhaps, to cover the entire scope of the common law. The standard of the constitution and of the common law may be ascertained by determining the purpose of the state, for it would be an anomalous situation, if a state can be instituted for a given purpose, and yet its constitution and common law may be legitimately administered contrary to that purpose. The sages of the law have always taught that civil government has its foundation in the moral law; that its purpose is to enforce between man and man the principles of the moral law.
In reasoning to this purpose, the standard law writers start with man in a state of nature, that is, at a time ante-dating civil government, the period when the conduct of men toward each other was regulated and controlled by their own sense of right and wrong, or, as the law writers say, their sense of obligation and responsibility under the moral law.
Walker's American Law, Chapter II, says:
"Individuals, in this condition, are under no other restraint, than that which results from an apprehension of the consequences which follow from con
formity or non-conformity to the laws of nature; in other words, their conduct is regulated by a sense of moral obligation alone. Having as yet contracted no engagements with one another, each individual is in a state of complete personal independence; and since no man as yet have acquired any rights which nature does not vouchsafe equally to all, it follows, that, in a state of nature, there is a perfect eqaulity of rights and obligations. And this is the only equality that would exist; for we cannot suppose that any two individuals would be absolutely equal in point of fact, either physically or intellectually. The only equality that can exist among men is a moral equality, or an equality of rights and obligations; and this is a fundamental condition of the state of nature.
“Such being the relations of men in a state of nature, we may safely conclude that they could not long continue in this primeval condition.
A community of angels might need no other restraint upon their actions; but constituted as men are, the moral obligations of a state of nature would not be sufficient to maintain harmony and order. To hinder the strong from oppressing the weak, and prevent might from trampling upon right; in a word, to avoid the nameless evils of anarchy, something more than a inoral government would be found indispensible.”
ORIGIN OF CIVIL GOVERNMENT
But something more than the moral law and a moral government was made necessary, not by