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Title: Gambling - or, Fortuna, her temple and shrine. The true philosophy - and ethics of gambling
Author: Romain, James Harold
Language: English
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    Or, Fortuna, her Temple and
    Shrine. The True Philosophy
    and Ethics of Gambling. By
    James Harold Romain.



  COPYRIGHT, 1891.


Publisher’s Note to the Public.

America is free and her people boast of her freedom in every realm
of thought and every department of activity. Her pride is a form of
discussion from which no man is excluded because of the opinions he
may advocate. We declare a man should be heard in the very face of
prejudice or passion.

Mr. Romain’s book, in our judgment, is entitled to publication for
other reasons than those above mentioned. It is replete with learning,
and original in conception. The philosophy is broad and the tone
dignified. Patient research is manifest in every page. Every branch of
knowledge has been made to contribute its force to the argument. The
work is a mine of information in political speculation, social science
and moral philosophy. Mr. Romain is obviously in sympathy with the
widest possible circle of culture. For that reason, if for no other,
what he has to say is entitled to a respectful consideration. His
book is unique in design and wrought out with vigor. His appeal is to
philosophy, science and history; not to idle curiosity, purposeless
gossip, or the unimportant “personal equation” to which others have
been so prone.

In the interest of fair play, but, confessedly, with no sympathy
for gambling, the book is offered to the people to decide as to the
correctness of its conclusions.

        ADAM CRAIG, Publisher.

                         This book is dedicated
                                 To the
                       Hon. John Cameron Simonds,

                             by the author,
                      as a token of esteem for his
                 fair-mindedness and sense of justice.
               Although that gentleman is not a gamester,
                   nor in sympathy with the pursuit,
             yet the author desires thus to acknowledge his
           indebtedness to him for many valuable suggestions
                    in the preparation of this work.



Two doughty knights, clad cap-a-pie in burnished mail, once journeyed
forth in search of martial adventure. Their noble steeds all
caparisoned for war, both wandered up and down through the world,
defending the fair and protecting the weak. Betimes they chance to
meet where stood in majestic beauty a bronze statue of victory. In her
right hand the goddess clasped a sword, while in graceful pose her left
rested upon an ægis richly wrought in the precious metals. Approaching
from opposite directions, to one warrior the shield appeared as of
gold, while to the other it was of silver. Low were bowed their
crested helms in courtly salutations.

“Comely, Sir Knight,” said one, “comely and noble is this figure.”

“Yea, thou hast spoken truly,” was the reply.

“Precious, very precious,” rejoined the first, “must be yon golden

“Nay, Sir Knight, it is of silver, I trow.”

“By my lady, thou liest,” quickly came the hot retort.

Then, prancing chargers well in hand, with lances lowered to deadly
level, they prepared for the “wager of battle.” Both were unhorsed
in the onslaught. Regaining an upright posture, with swords drawn to
renew the duel, each observed that his reverse of the shield was what
the other had contended for. Moral: It is wise to look first upon both
sides of the subject.

Not so, it is evident, has it been with books heretofore devoted to
a discussion of gambling. Their authors professed an exposition of
gaming in the interest of morality. Well may some of the books be read
for their wealth of information and excellent diction. Some have been
earnest, in places eloquent, and often suggestive. Vivid and dramatic
are the descriptions of a passion that has possessed the world in all
ages; yet, that the various assaults were conceived in wisdom, or that
they have resulted in permanent good, I am constrained to deny.

True, I believe with Sir Walter Raleigh, that out of history may be
gathered a policy no less wise than eternal; “by the comparison and
application of other men’s forepassed miseries with our own like errors
and ill-deservings.”

But why did it not occur to these writers that circumstances should
not be recorded merely because they have happened; that events deserve
memorial only because they illustrate some great principle; because
some inference is to be drawn from them, which may increase the
happiness or enlarge the powers of man? That it did not, we must
infer from the pages they have given to the world. Cicero declared
that “History is the light of truth.” In vain, however, do we look for
a consideration of causes in any history of gambling. “Histories,”
said Carlyle, “are as perfect as the historian is wise.” Is that book
wise wherein no adequate remedy is suggested for the evil it depicts?
Although interesting, such a work is but a chronicle devoid of moral
purpose. It is clear, to dwell upon the follies of man will not cure
them; that it will not strengthen humanity merely to portray their
weaknesses. The passion our author would combat is rooted in the soul.

   “Whose powers at once combat ye, and control,
    Whose magic bondage each lost slave enjoys.”

How would you extirpate the evil, if such it is? Expose a folly, you
may say, and wisdom will turn from it. You would have us believe,
perhaps, that:

   “Wisdom from heaven received her birth;
    Her beams transmitted to the subject Earth.”

And yet

   “This great empress of the human soul
    Does only with imagined power control,
    If restless passion, by rebellious sway,
    Compels the weak usurper to obey.”

So far as the history of gambling has ignored causes and neglected
remedies, it is incomplete. That it is deficient in both is my reason
for this book. Some one should begin the subject where other authors
have deserted it.

I have long made a study of gaming in all its aspects and relations;
aiming, the while, at breadth, impartiality and thoroughness. At first
my reading was not conducted with a view to authorship. I desired
information for its own sake. As a gamester, I sought the philosophy of

What is chance? How far does it influence all mankind and circumscribe
their efforts? What is gambling, in the broadest sense of the term?
Is gaming wrong _per se_: i.e., absolutely vicious? Where in human
nature is the passion grounded? Why does the propensity exist? Is it
an inevitable tendency of human nature? What is morality? Wherein
does the gambler differ from other men? How should his occupation be
distinguished from business generally? How far may the conduct of an
individual be dictated by society? How may the essentially punitive be
distinguished from that which is not so? What are the true limits of
State power in relation to appetites and propensities? Are sumptuary
laws effectual? Does history, as the philosophy of example, justify
such enactments? Can the law eradicate innate tendencies? Can character
be transformed by statute? Is it possible to legislate morality into
mankind? What should be the policy of statesmen and reformers in the
realm of morals? If it is not possible to extirpate the passions by
law, how may they be regulated, directed, educated and purified?

Such were the problems that confronted my understanding. Each and
all were resolved to the best of my knowledge and capacity. I make my
observations public in the interests of fair play and common sense. I
am at least entitled to the literary chances of a reading age.

I have dallied with fickle fortune for years. As gamester, I
anticipated prejudices against the pursuit. My deductions are amply
fortified, therefore, from the mature studies of great and wise men.
I did not expect my book to stand unsupported. It is substantiated,
throughout, by the teachings of profound and impartial philosophers.


  PUBLISHER’S NOTE,                                          3

  DEDICATION,                                                5

  PREFACE,                                                   7

  INTRODUCTION,                                             19

  THE WORSHIP OF FORTUNA,                                   27


  THE DESTINIES; OR, THE REIGN OF LAW,                     103


  “THE KING IS DEAD--LONG LIVE THE KING!”,                 211




A traveler once sought to explore an unknown country. Compass he had
not, and both chart and guide were wanting. In the distance a mountain
loomed above the plain. To its summit our traveler made his way. From
thence he beheld the region stretching away in all directions. The land
he would traverse the eye could now sweep from center to circumference.
It was not possible to know the landscape in detail, but the relative
proportions, distances and boundaries were unfolded at his feet. So,
when properly conceived, with the introduction to a book. A perspective
of the topic is conducive to a better understanding of its scope and
purpose. My object is to sustain the following propositions:

_First._--Men have gambled in all ages of the world. That they will
continue to do so is a reasonable presumption. To gamble would seem
instinctive--inherent in the souls of mankind and fostered by the
very nature of their environment. History reveals that all alike are
possessed by this subtle passion--male and female, young and old, good
and bad, wise and unwise, rich and poor, the exalted and the lowly. In
every century may be seen a motley throng kneeling in devotion at the
feet of Fortuna. Eagerly about her shrine press the mighty concourse
of emperors, kings, chieftains, statesmen, ecclesiastics, savants,
philosophers, poets, soldiers and the wayfaring. Now and ever will
mankind court the mysterious and uncertain.

_Second._--To define a wager is to defy intolerance of opinion.
Truth is not absolute but relative. It is not to be established _ex
cathedra_. Moralists are not in a position to denounce gambling _per
se_. They are not yet agreed upon the unconditioned principles of
right and wrong. Before it can speak with authority, moral philosophy
must find an ultimate, self-evident and irrefragable foundation.
That it is essentially criminal or necessarily vicious to invoke a
chance has never been demonstrated. To live is to gamble. We all wager
in one way or another. Luck is appealed to in every department of
human activity. Everywhere uncertainty is the rule and certainty the
exception. In the business world vast realms are specifically founded
upon the doctrine of chances. If absolutely wrong, then gambling should
be discountenanced in all persons under every circumstance. In whatever
guise it should be condemned as a principle. Until this has been done
society is not in a position to punish in one person what it permits
or commends in another. In its treatment of gambling the law is now
inconsistent, unjust and hypocritical.

_Third._--Man is the creature of circumstances. Society is an organism
conditioned by its environments. Every nation must complete a cycle of
infancy, youth, manhood and old age. Briefly, history is a science--an
unbroken chain of causes and effects throughout the ages. Volition,
so-called, is delusive and shadowy--more apparent than real. At best,
we but yield to the greatest pressure of temperament or motive. Human
nature, in a word, is the result of inevitable tendencies. The passions
are inherent and cannot be violently uprooted. Character is innate and
not subject to arbitrary reform by extrinsic force. Here, as elsewhere,
evolution is the law of existence. While our appetites and propensities
may be educated, they can never be obliterated. Social and political
philosophy have repeatedly deduced these truths from the history of
man. In the field of reform officialism has been repudiated by the
greatest thinkers. Legislation, therefore, should conform to the light
of experience and the dictates of science. _Ergo_: in the future, as
in the past and present, the gaming passion will everywhere assert
itself, despite repressive legislation, however severe.

_Fourth._--Sumptuary statutes are futile and impertinent. They are
to-day and ever have been indefensible and impolitic. Such laws are
an infringement upon individual rights and an insult to human nature.
Officious and pharisaical legislation in the province of morals and
taste should be abandoned once and forever. _Per se_, to gamble is
neither a sin nor a crime. For the law to punish the practice is futile
and unwarranted.

_Conclusion._--An enlightened age demands the overthrow of an effete
administrative policy. In the realm of morals, let that be wisely
guided which the law cannot prevent. Gambling, with certain conditions,
should be licensed and placed under the surveillance of a police.

The Worship of Fortuna.



The Worship of Fortuna.

Reader, in imagination go backward with me more than 20 centuries.
Enter with me the magnificent and imposing Temple of Fortuna, in old
Præneste. We are within the portico of that stately hemicycle. Far
above is the marble dome, and about us cluster the snowy columns. As
it is early morn, flamens and virgins are assembled inside the sacred
precincts. They are grouped about the flaming tripod, and the robes of
purple and white blend in harmony of color. The sanctuary is redolent
with burning incense. A golden image of the goddess, in heroic mould,
flashes back the rays of sunlight that penetrate the inner shadows. A
solemn chant entrances the ear, and our eyes turn to the westward.
Before us expands the Campagna, ninety miles in length and twenty-seven
in breadth. The undulating plain stretches away in all directions
until it sinks into the sea; thickly studded is the superb picture
with prosperous cities and “every rood of ground maintains its man.”
Everywhere is presented an appearance of comfort and rich cultivation.
Yonder, Mount Albanus towers to a height of 3,000 feet above the sea.
Looming majestically above its topmost peak is the Temple of Jupiter
Latiaris. The grandeur of mighty Rome is at our feet, a splendid and
stupendous panorama of temples, amphitheatres, basilicas, palaces,
circuses, baths, arches and aqueducts. Such was the spot dedicated to
Fortuna by the ancient Prænestians. She was more deeply enshrined in
their hearts than Olympian Jove himself.

Præneste flourished before the birth of Christ or the glory of Rome.
The noble city occupied a projecting point or spur of the Apennines
and was distant from Rome, due east, about twenty-three miles. Above
its walls towered the Temple of Fortuna. The Temple proper was circular
in form and crowned the summit of a hill more than 2,400 feet above the
Mediterranean level. Standing out boldly against the sky, its majestic
outlines were visible from a great part of Latium. As extended by
Sulla, the sanctuary occupied a series of six vast terraces, which,
resting on gigantic substructions of masonry, and connected with each
other by grand staircases, rose one above the other on the hill, in the
form of a pyramid. Closely associated with the ritual of the Temple
were the “Prænestine Lots,” or Sortes Prænestinæ, and in existence
at the beginning of the Christian era. Constantine, and subsequently
Theodosius, suppressed the oracle. Its celebrity is attested by Lucan,
Horace and Ovid. Cicero speaks of the great antiquity and magnificence
of this shrine. Numerous were the great men who petitioned the
Prænestine Fortuna for assistance. Of the number may be mentioned
Tiberius, Domitian and Alexander Severus. Even Sulla sought to
propitiate the goddess before engaging in his successful wars with

Plutarch tells us of Timotheus, the Athenian, son of Conon, who, “when
his adversaries ascribed his successes to his good luck, and had a
painting made representing him asleep, and Fortune by his side, casting
her nets over the cities, was rough and violent in his indignation at
those who did it, as if, by attributing all to Fortune, they had robbed
him of his just honors; and said to the people, on one occasion, at
his return from war: ‘In this, ye men of Athens, Fortune had no part!’
A piece of petulance which the deity played back upon Timotheus; who,
from that time, was never able to achieve anything that was great.”

“Sylla,” he continues, “on the contrary, not only accepted the credit
of such divine favors with pleasure, but gave the honor of all to
Fortune. He once remarked: ‘that of all his well-advised actions, none
proved so lucky in the execution, as what he had boldly enterprised,
not by calculation, but upon the moment.’ He gave Fortune a higher
place than merit, and made himself ‘entirely the creature of a superior

The Goddess of Chance, or Good Luck, actually existed in the
imagination of the ancients. Chapman writes:

                      “The old Scythians
    Painted blind Fortune’s powerful hands with wings,
    To show, her gifts come swiftly and suddenly,
    Which, if her favorites be not swift to take,
    He loses them forever.”

Temples to Fortuna (the Greek Tyche) dotted the sunlit landscape from
Thebes to Rome. She was adored by the Etrurians as Nortia. Originating
near Mount Parnassus, her worship gradually extended into all parts of
Greece and Italy. Antium, an opulent and powerful city of Latium, was
once celebrated for its splendid temple of Fortune.

History discloses not a period, however remote, when Fortuna was not
a favorite with the Latins. Numa Pompilius daily prostrated himself
before her altar, and the ceremonial received a new impetus from his
pious grandson, Ancus Martius. Servius Tullius ascribed his power
and success to the gods. Especially did he assume the protection of
Fortuna. Two temples were erected to her by this great king, one in the
Forum Boarium and the other on the Tiber. By some it is said that the
edifices were respectively dedicated to Bona Fortuna and Fors Fortuna.
Yet another gorgeous structure afterward graced the Quirinal.

Precisely when the mythological system lost its influence is not
known. It is not true, however, as was once generally believed, that
immediately after the birth of Jesus the oracles were forever hushed.
While, long prior to that event, many fanes had been deserted, yet
others continued to flourish for at least two centuries thereafter.
Before the Christian era, Mythology had been repudiated by Philosophy
and Science. To the learned it was at best but expressive of the
principles back of natural phenomena. Only because it was largely
identified with the state, did it receive the support of politicians.
Yielding to the spirit of Christianity, the Olympian deities departed
with the decline of Rome as a pagan power.

Of all the shining throng that beautified the Pantheon, Fortuna alone
refused to abdicate a sovereignty she would exercise to the end of
time. True, the exquisite forms in which she had charmed the eye
were destroyed and her temples razed with the earth; yet has Fortuna
continued her uninterrupted sway over the hearts of men. Sanctuaries
and statutes were not necessary to her supremacy in the world. She was
enshrined in the soul--her worship instinctive in the very nature of
humanity. Where is the epoch of Christendom in which an innumerable
multitude have not worshiped this imperial goddess? Among her devotees
may be included men famous in every department of life: politics,
statesmanship, war, eloquence, philosophy, science, art, literature
and the liberal professions. A review of the brilliant procession is
profoundly suggestive.

Great Cyrus, who founded the Persian monarchy; Darius, who originated
centralized imperialism and reduced it to a system; Artaxerxes
Third, the greatest administrator of remote antiquity; Miltiades,
a name associated with the glories of Marathon, once designated
“freedom’s best and bravest friend;” Themistocles, to whom may
be fairly ascribed the victory at Salamis; Simonides, gentle and
patient, the poet of nationality and patriotism; Aristophanes, the
great father, and Menander, the acknowledged master of Greek comedy;
Pericles, the “Olympian Zeus of oratory,” a great statesman and one
of the most remarkable characters of Greece; Plato, whose name is
synonymous with all that is most exalted in idealism; Xenophon, a
friend and pupil of Socrates, and to whom the world is indebted for
“Memorabilia,” “Anabasis,” and “Cyropædia;” Demosthenes, known to
oratory as the “greatest Hellenic star;” Isocrates, his contemporary,
the distinguished rhetorician; Philip of Macedon, the famous father of
a more famous son; great Alexander, “Child of Zeus,” “Son of Peleus,”
familiar to every schoolboy as the greatest of military conquerors.

In the resplendent story of Rome are Scipio Africanus, a military
genius, and the conqueror of Hannibal; Cornelius Sulla, the great
general, sagacious politician, accomplished scholar, “one of the most
remarkable figures of all time;” Julius Cæsar, equally preëminent in
statecraft, war and letters; Marc Antony, brave and generous; Lepidus,
not the least of the second great triumvirate; Augustus, than whom a
more consummate ruler and prudent statesman never lived; Tiberius, a
writer of Greek odes and an orator at nine years of age; in battle he
repeatedly worsted the Parthians, Cantabrians, Dalmatians, Pannonians
and Illyrians; Domitian, conspicuous for his piety, who enforced the
laws against adultery and other gross forms of immorality; Titus,
bewailed at his death as “the love and light of the human race;”
Hadrian, just, liberal, valorous and energetic; Nerva, humane and
progressive; Trajan, indomitable and heroic; Alexander Severus, a
virtuous prince, a student of Christianity, and the friend of Paulus
and Ulpian; Sallust, distinguished in Latin literature for power and
animation; Livy, the man of beautiful genius; the graceful Catullus;
exquisite Horace and facile Ovid.

Among the Germanic peoples, Eugene of Savoy, a memory cherished by
Austria, who lived but for glory, and raised the Hapsburg arms to a
prestige unequaled before or since; Wallenstein, bold, imperious and of
versatile ability in civil and military affairs.

In Italy, the Abbes Ruccellai and Frangipanni, pious and charitable;
Reni Guido, who painted the marvellous “Crucifixion of St. Peter’s,”
and the “Aurora.” In art, he expressed a most refined and fervent

The Fifth, Sixth and Seventh Charles of France, distinguished,
respectively, as “The Wise,” “The Beloved,” and “The Victorious;”
Charles VIII., who, with but 9,000 soldiers, defeated an Italian
army of 40,000 men; Louis XI., ever admirable for his administrative
talent, a friend of the middle classes, he restrained a turbulent and
oppressive nobility; Louis XII., of France, a “father of the people;”
Louis XIII., distinguished for valor and martial ability; Louis XIV.,
better known to the world as “The Great,” and to his country as
Dieu-donne--“God-given;” the amiable and picturesque Henry of Navarre,
the champion of Protestantism and protector of the Huguenots; Philibert
de Chalon, fertile and resolute; Bertrand du Guesclin, “king of the
tournament,” the “hero of heroes;” Condé and Turenne, both profound and
alert; Marshall Saxe, energetic and courageous; Napoleon Bonaparte, a
titanic genius of transcendent powers, king of kings, “the astonishment
and terror of the world;” Ney, bravest of the brave, the victor of
Elchingen, Mannheim and Moskva; Murat, “the Gold Eagle,” a truly wise
king, and the greatest cavalry leader of his time; Richelieu, greatest
statesman of the 17th century; Mazarin, brilliant in ministerial
policy, and the wise architect of peace at Westphalia; Mirabeau, a man
of gigantic thoughts and deeds--the mental Colossus of his age--“an
intellectual Hercules;” Talleyrand, unexcelled in diplomacy and eminent
as a financier; Thiers, equally able in politics and literature; M.
Sallo, counselor to the Parliament of Paris, and Mathieu Mole, at one
time the Premier-President of that body; Molière, the inimitable;
Corneille, creator of French tragedy; Rotrou, his master; and
Racine; Montaigne, the essayist, extraordinary for his learning and
sound reason; Paschasius Justus, an erudite and excellent physician;
Rousseau, apostle of universal happiness, and unrivaled in the
literature of France for the subtle eloquence of his style; Voltaire,
world-famous Sage of Ferney, the “sovereign writer of his century;”
René Descarte, deservedly exalted in philosophy and mathematics; the
delightful poets, Voiture and Coquillart, with the renowned Cardinals
D’Este and De Medicis.

Fair Albion comes into the story with “Lion-Hearted” Richard, the
incomparable knight-errant; Edward I., unequaled in his century as
warrior and ruler; Edward III., who befriended literature and art,
and espoused the cause of progress; his son, the Black Prince, “most
glorious star of chivalry;” Henry VIII., a foe to papacy, and for a
time the most popular monarch in English history; “Ye Merrie King
Charles;” Duke of Marlborough, the brilliant and successful general;
Arthur Wellesley, “The Iron Duke,” venerated and beloved; Horatio
Nelson, of magnificent exploits and stupendous victories, who said:
“Where anything great is to be done, there Providence is sure to
direct my steps;” unrivaled was he in daring resource and skill; Sir
Charles Napier, conqueror of Sinde and the “acknowledged hero of a
family of heroes;” Dan Chaucer, “that first sweet warbler” of English
verse, philosopher, politician and poet; Marlowe, the mightiest of
Shakespeare’s pioneers; Shakespeare, himself, “sweet swan of Avon,”
myriad-minded and wondrous; “rare” Ben Jonson; Raleigh, a universal
genius--“the glass of fashion and mould of form;” Surrey, polished and
chivalric; John Dryden, of whom Dr. Johnson said: “As Augustus was
to Rome, so was Dryden to English literature. He found it brick and
left it marble;” Dr. Tobias Smollett, who wrote “Humphrey Clinker;”
Fielding, the frank and manly author of “Tom Jones;” sweet Oliver
Goldsmith, in letters perspicuous, vivacious, and graceful; Halifax,

   “Jotham of piercing wit and pregnant truth,
    Endued by nature and by learning taught
    To move assemblies;”

the first Marquis of Anglesey, high-spirited and impetuous, a dashing
general of cavalry; that best of Irish Viceroys, Frederic Howard, Earl
of Carlisle; Lord Bolingbroke, accomplished and eloquent; Shaftesbury,
the incorruptible statesman, upright judge and friend of religious
freedom; Horace Walpole, of whom Macaulay said, that his writings “were
among the delicacies of intellectual epicures;” Dr. Dodd, divine,
author, editor and chaplain of the king; George Selwin, the celebrated
conversational wit; Sir Philip Francis, immortal as “Junius,” and a
“friend of the people;” the artistic Farquhar; courtly Waller; elegant
Dorset; charming Sedley; and scholarly Congreve; jolly Dick Steele, a
master of classical prose; Charles James Fox, of whom James Mackintosh
said: “He is the most Demosthenian speaker since Demosthenes;”
Sheridan, “capable of the grandest triumphs in oratory,” and noted for
his sparkling wit and exquisite songs; Wilberforce, who dedicated his
life to a struggle for the abolition of the slave-trade; Edward Gibbon,
the historian, splendid, imposing and luminous; Ponsonby, once speaker
of the Irish House of Commons; Dr. Colton, author of “Lacon;” William
Pitt, of dauntless spirit and unimpeachable integrity; and Lord Byron,
a poet famed for his passionate eloquence and pathetic gloom.

Fortuna may proudly enumerate her great votaries in America: Aaron
Burr, Edgar Allan Poe, William Wirt, Luther Martin, Gouverneur
Morris, Daniel Webster, Henry Clay, General Hayne, Sam Houston,
Andrew Jackson, Generals Burnett, Sickles, Kearney, Steedman, Hooker,
Hurlbut, Sheridan, Kilpatrick, Ulysses S. Grant, George D. Prentiss,
Sargeant S. Prentiss, Albert Pike, A. P. Hill, Beauregard, Early;
Ben Hill, Robert Toombs, George H. Pendleton, Thaddeus Stevens,
Green of Missouri, Herbert and Fitch of California, “Jerry” McKibben,
James A. Bayard--father of the recent Secretary of State--Benjamin F.
Wade, the lamented Broderick, John C. Fremont, Judge Magowan, Charles
Spencer, Fernando Wood and his brother Benjamin, Colonel McClure,
Senator Wolcott, Senator Pettigrew, Senator Farwell, Matthew Carpenter,
Thomas Scott, Cornelius Vanderbilt, Hutchinson of Chicago, and Pierre
Lorrillard. Names might be extended indefinitely. Enough have been
mentioned to illustrate how the gambling habit permeates all ranks of
society in the United States.

With the conclusion of our retrospect, we may well exclaim: What is the
nature of a passion so inveterate and general: of a propensity that
dominates all mankind alike, whether noble or mean, wise or foolish,
strong or weak? “Is there a remedy?” propounds the philosopher. The
legislator asks, “What is my duty?”

What is Truth?


The Philosopher’s Stone.



What is Truth; or, the Philosopher’s Stone?

In mediæval romance the Alchemist is a familiar figure--with flowing
robe and skull-cap, in the midst of crucibles and alembics. This period
of the world did not present a feature more weird and picturesque:
a body of learned but misguided men, professing the “chemistry of
chemistries.” With eagerness and devotion they vainly sought for a
principle that could indefinitely prolong human life and transmute
the baser metals into gold and silver. Although centuries have
elapsed since Gebir and Paracelsus, yet the “philosopher’s stone” is
a desideratum. Of the Alchemists it has been quaintly said by Percy,
“that their respective histories were accurate illustrations of the
definition which describes Alchemy as an Art without principle, which
begins in falsehood, proceeds in labor, and ends in beggary.”

Forcibly suggestive is this picture of moral philosophy and
philosophers. From the remotest ages certain men have arrogated to
themselves a knowledge in the realm of ethics much superior to their
brethren. It was manifested by the “gnomic” poetry of Greece, more than
700 years B. C., and in the oracular sayings of the so-called “seven
sages” of antiquity. To this day a similar class of wiseacres may be
found in all parts of the earth. The moralists, however, search not
for the universal medicine or an irresistible solvent. Such persons
admit the “grand elixir” is a delusion; and yet, their ambition is
more daring and presumptious. They would “be as gods, knowing good and
evil.” “Gold is but dross,” they exclaim, “our quest is for _necessary_
moral truth. We seek _immutable_ righteousness.” Long ago was Alchemy
abandoned as futile. Not so the egotistic dogmatism of the moral
philosophers: with them self-conceit has remained incorrigible, from
Socrates and Plato, through Kant and Hegel, to Martineau and Janet.
In vain, their assumptions have been repeatedly demolished and their
deductions refuted. Unmindful are they, also, of the irreconcilable
conflict of “schools”--the hopeless contradiction of “systems.”
Fully one hundred great thinkers, first and last, have asserted the
discovery of indubitable “good.” But no two of them all agreed upon
the infallible line of distinction between what “ought to be” and
its opposite. In fact, every individual of the number represents a
different scheme. All moral philosophers asseverate the necessity for
an authoritative standard of right and wrong--for some peremptory
and incontestable guide to human conduct. Otherwise, they admit, one
opinion is no more acceptable or commanding than another.

Some affirm the existence of an innate faculty, the unerring dictates
of which are defended. But Bentham (a great jurist) denounced the
“moral sense” man as a bully who would brow-beat others into accepting
his verdict. All such appeals were described by him as sheer “_ipse
dixitism_: as a fraud by which incompetent philosophers would palm
their own tastes and fancies upon mankind.” “One man,” wrote Bentham
of Shaftesbury, “says _he_ has a thing made on purpose to tell _him_
what is right and what is wrong; and that it is called _moral sense_:
then he goes to work at his ease and says such and such a thing is
right, and such and such a thing is wrong. Why? ‘Because _my_ moral
sense tells me it is.’” Of the inner-capacity-philosopher, Hazlitt
remarked that “his excessive egotism filled all objects with himself.”
To Crabbe, “he was a self-conceited man, who pretends to see through
intuition what others learn by experience and observation; to know in
a day what another wants years to acquire; to learn of himself what
others are contented to get by means of instruction.”

Archdeacon Paley, again, ridiculed as worthless a “moral sense” which
man may disregard if he chooses. What is an _authority_, said Paley,
merely felt in the individual consciousness: a personal whim, the mere
accident of individuality. What, he asks, is the authority of another’s
conscience to me? What, indeed, _is_ my conscience, and _why_ is it an
authority to myself? We can never know whether it is “a real angel with
flaming sword, or a scare-crow dressed up by the moral philosophers.”
Did the “moral sense” exist, should we not see a universal evidence
of its influence? Would not men exhibit a more manifest obedience
to its supposed dictates than they do? Would there not be a greater
uniformity of opinion, as to the rightness or wrongness of opinions, as
to the rightness or wrongness of actions? “We should, not, as now, find
one man or nation considering as a virtue what another regards as a
vice--Malays glorying in the piracy abhorred by civilized races--a Thug
regarding as a religious act that assassination at which a European
shudders--a Russian piquing himself on his successful trickery--a red
Indian in his undying revenge--things which with us would hardly be
boasted of.

“Again, if this moral sense exist and possess no fixity, gives
no uniform response, says one thing in Europe and another in
Asia--originates different notions of duty in each age, each race,
each individual, how can it afford a safe foundation for a systematic
morality? What can be more absurd than to seek a definite rule of right
in the answers of so uncertain an authority?”

Can it be fairly said, my reader, that such men are in a position to
judge the gambler, or to denounce his vocation? May not the gamester
ask of this sect: By what authority do you pronounce judgment, “out
of hand,” upon me and mine? Where is your standard--authentic,
determinative, undeniable, irrefutable? Am I subject to the dominion of
your conscience? In my opinion, gaming is not a sin. In what is your
judgment superior to mine? Moreover, I defy you to demonstrate a wager
is wrong, _per se_. If you find this impossible, I am free to repudiate
your dogmatism. To know, also, that gaming is not _prima facie_ sinful,
we have but to define it.

The lexicographers define a gamester as “one who plays for money or
other stake;” and gaming “to be the use of cards, dice, or other
implement, with a view to win money, or other thing, wagered upon the
issue of the contest.” Is this a description of anything forbidden
by the decalogue? Where, in the old or new testament, is a similar
transaction denounced as a sin? But, it may be said, perhaps, the
foregoing definition does not suffice for moral consideration: it
ignores the element of chance, which enters more or less into all
games. This would imply that it is immoral to invoke a fortuity. Is it?

Here, the great Jefferson may be quoted with propriety: “It is a common
idea that games of chance are immoral. But what is chance? Nothing
happens in this world without a cause. If we know the cause, we do not
call it chance, but if we do not know it, we say it was produced by
chance. If we see a loaded die turn its lightest side up, we know the
cause, and that it is not an effect produced by chance; but whatever
side an unloaded die turns up, not knowing the cause, we say it is the
effect of chance. Yet, the morality of the thing cannot depend on our
knowledge or ignorance of its cause. Not knowing _why_ a particular
side of an unloaded die turns up, cannot make the act of throwing, or
of betting on it, immoral. If we consider games of chance immoral, then
every pursuit of human industry is immoral, for there is not a single
one that is not subject to chance; not one, wherein you do not risk a
loss for the chance of some gain.”

In “Paradise Lost,” Milton declares:

   “Next him, high arbiter,
    _Chance_ governs all!”

And of mankind we read in Ecclesiastes that “time and _chance_
happeneth to them”--mankind. (9:11). Among the Hebrews, property was
divided and disputes were decided, “by lot.” The custom is mentioned
by Solomon, Matthew and Luke. (Prov. 16:33; Matt. 27:35; Luke 10.)
Furthermore, this mode of appeal to destiny is sanctioned, yea, even
prescribed, by the Bible. According to Leviticus, Aaron was commanded
“to take the two goats, and present them before the Lord, at the door
of the tabernacle of the congregation. And Aaron shall _cast lots_
upon the two goats; one lot for the Lord and the other lot for the
scape-goat. And Aaron shall bring the goat upon which the Lord’s lot
fell, and offer him for a sin offering. But the goat on which the lot
fell to be the scape-goat, shall be presented alive before the Lord,
to make an atonement with him and to let him go for a scape-goat into
the wilderness.” (16:7, 8, 9.)

_Thus was chance invested with the sanctity of a religious observance._

Moses was instructed that the “Promised Land” should be divided
among the Hebrews “by lot.” The method is described in Numbers:
“Notwithstanding, the land shall be divided by lot, according to the
names of the tribes of their fathers shall they inherit. According to
lot shall the possession thereof be divided between many and few.”
This direction was followed to the letter by “Eleazar, the priest, and
Joshua the son of Nun, and the heads of the fathers of the tribes of
the children of Israel;” for we are told in Joshua, that “By lot was
their inheritance; as the Lord commanded by the hand of Moses, for the
nine tribes and for the half tribe.” (Josh 14:1, 2; 18:6.)

_Luck, then, decided the tenure of the tribes in Canaan--a title
dictated by Divinity._

Joshua determined, by lot, that it was Achan, of the tribe of
Judah, who had taken “the accursed thing” and thus brought upon
Israel the disaster at Ai. (Josh. 7:14.) During the great battle
of Michmash-Aijalon, Saul said unto the Israelites: “Cursed be the
man that eateth any food until evening, that I may be avenged on my

Unmindful of this oath, wild honey was eaten by his son, in a moment
of extreme hunger. No one would divulge that the king’s adjuration had
been disregarded by the beloved Jonathan. “Therefore, Saul said unto
the Lord God of Israel, give a perfect lot. And Saul and Jonathan were
taken: but the people escaped. And Saul said, Cast lots between me and
Jonathan, my son. And Jonathan was taken.” (1 Sam. 14:40, 42.)

_By lot, likewise, the question of “ministry and apostleship” was
decided against Justus and in favor of Matthias._ (Acts 1:26.)

Briefly, if the Bible is a divine production, how can appeals to
chance be stigmatized as vicious or irreligious? Also, it is not to
be denied that chance, or casualty, enters very largely into every
department of human action. Men are compelled to take ventures every
day; the engineer faces them; so does the sea captain; the same may be
said of the doctor, the surgeon, the lawyer and the banker. A merchant
encounters all the risks of trade; the hostility of the elements and
the bankruptcy of others. The rains may rot or the drouths destroy the
crops of the farmer. And almost, in the words of Ben Jonson, throughout
the world,

   “All human business, fortune doth command,
    Without all order, and with her blind hand,
    She, blind, bestows blind gifts, that still have nurst,
    They see not who nor how.”

The politician, too, might say with Macbeth: “If chance will have me
king, why, chance may crown me.” War is a mighty game between giants.
In truth, of Napoleon the poet has said:

   “Whose game was empires, and whose stakes were thrones,
    Whose table, earth; whose dice, were human bones.”

Beyond this, even our laws and institutions appeal to chance. In the
United States Senate, whom, respectively, of two members--elected at
the same time--shall serve for the long and short term, is decided by
lot. The law recognizes that even property may be thus divided. “When
an estate is apportioned into three parts, and one part is given to
each of three persons; the proper way is to ascertain each one’s part
by drawing lots.” Thus is the rule stated by Bouvier and Wolff. The
Illinois Statutes, for the regulation of elections, enact that “when
two or more persons receive an equal and the highest number of votes
for an office to be filled by the county alone, that county clerk shall
issue a notice to such persons of such tie vote, and require them to
appear at his office, on a day named in the notice, within ten days
from the day of election, and determine by lot which of them is to be
declared elected. On the day appointed the clerk and other canvassers
shall attend, and the parties interested shall appear and determine by
lot which of them is to be declared elected.” Similar laws exist in
other states.

Some moralists admit the validity of a transaction, notwithstanding it
may depend upon chance. They will concede there is no intrinsic wrong
in any species of game, unless there exists an inequality of chance or
skill. Not so, thought Paley, the Christian philosopher, whose name is
a household word for purity, zeal and power. He said: “What some say of
this kind of contract, that one side ought not to have any advantage
over the other, is neither practical nor true. This would require
perfect equality of skill and judgment, which is seldom to be met with.
I might not have it in my power to play with fairness a game of cards
once in a twelvemonth, if I must wait till I meet with a person whose
art, skill and judgment are neither greater nor less than my own. Nor
is this equality requisite to the justice of the contract. One man
may give to another the whole of the stake if he chooses, and the
other may justly accept it if it be given him; much more, therefore,
may one give another an advantage in the chance of winning the whole.
The only proper restriction is, that neither side have an advantage
by means of which the other is not aware. The same distinction holds
of all transactions and proceedings into which chance enters; such as
insurance, and speculations in trade or in stocks.”

In this connection, with what force could be quoted the sweet Nazarene
in His parable of the vineyard laborers: “Friend, I do thee no wrong;
didst thou not agree with me for a penny? Take that thine is, and go
thy way; I will give unto this last even as unto thee. _Is it not
lawful for me to do what I will with mine own?_” (Matt. 20:13, 14, 15.)

Here the mathematicians attempt to rescue moral philosophy. They would
demonstrate the improbability of luck. If asked how it happened that
a man won a hundred thousand dollar prize, while his neighbor drew a
blank, the mathematician might tell you it was chance; that there was
a necessity for the prize to fall somewhere, and that he who had the
most chances was the most likely to obtain it. Such caviling could be
dismissed with the answer: You acknowledge the necessity of a prize
falling _somewhere_, then why not to me. Surely my chances are as good
as my neighbors’, perhaps more so. It may be; and what may be may be
now. “There is no prerogative in human hours.” “There is a tide in the
affairs of men, which taken at the flood, leads on to fortune.”

No intelligent gambler is a believer in “luck” as _a personal quality_.
He recognizes the phenomena of chance. _How_ they will operate is not
known to the mathematician more than to him; the “chances” may result
favorably or unfavorably for a gambler; the law may so work as to
benefit him, or it may not. Whether “chance” or “luck,” is immaterial
to the issue.

But seriously, for what do these aspirants contend? A method of
reasoning from the happening of an event to the _probabilities_ of one
or another cause; that the possible combinations in a pack of cards,
or a handful of dice, may be computed, even when the question involves
the chances of a thousand dice, or a thousand throws of one die. In
its very nature this is a vain-glorious pretension, and upon what is
it based? An _hypothesis_ presenting the necessity of one or another
out of a certain number of consequences. In other words, _given_ an
event as having happened, and which _might_ have been the consequence
of either of several causes, or explicable by either of several
_hypotheses_, the probabilities can be _inferred_.

In this way is the philosophy of supposition substituted for that of
caprice. We are asked by the mathematician, at the very outset, to
assume something he has not proved, and which is not susceptible of
proof. We are required to take for granted the imaginary premises
upon which his argument depends. Is this not the acme of intellectual
audacity? But having yielded his antecedent proposition, what is the
result? A bare probability--a mere likelihood of the occurrence of any

So much for the boasted “Doctrine of Chances.” Besides, I assert that
every premise of the mathematician has been refuted by my experience
as a gamester. In the proper place, I could disprove his every theory
with a fact. For example: De Morgan and Proctor tell us that it is not
probable seven could be thrown ten successive times, with a pair of
dice. We are told, on good authority, that in 1813, a Mr. Ogden wagered
1,000 guineas that his opponent would not perform this feat. That
gentleman threw seven _nine times_ running.

However, the mathematicians are not concerned with the right or wrong
of play for money. They seek to demonstrate the inequalities of chance,
hoping thus to dissuade humanity from its pursuit. Their efforts are
idle. “The proverb which advises us to throw a sprat to catch a whale,
shows that mankind consider a chance of a gain to be a benefit for
which it is worth while to give up a proportionate certainty.” These
gentlemen have extended their conjectures to the risks of loss or gain
in general commerce; the probable continuity of life and duration of
marriage; the contingencies in political results and the verdicts of
juries; the distributions of sex in births, and even the probability of
error in any opinion that may be generally received. In fact, should
their guesses be heeded by the world, enterprise and hope would depart.

Another class of moralizers reject and deride the idea of “innate
notions.” Truth, they maintain, is not to be found in worn out
abstractions and moral senses, which are the weak reproductions of
material organisms. In ethics, if they are to be followed, we must
set out with the convictions that our materials are relative and not
absolute, and that our highest moral conceptions must partake of the
same character. As stated by Posnett, systems of ethics, more or less
perfect in their day, have vanished in the progress of society and
mind. Systems of ethics, whether we see or care to see it, are gliding
from amongst us at this moment, while others, “with strange faces are
growing familiar by the slowness of their approach.”

To illustrate from Chenebix: Nothing can appear more definite than
virtue; yet, in Asia, the term may denote submission; in Europe and
America, resistance; to Mussulmans war; to Christians, peace. Honor,
too, which its votaries describe as one and incorruptible, assumes
various significations. In some countries it prescribes revenge for
an injury received; in others, forgiveness. Here, the violation of
female chastity is a disgrace, elsewhere it is a duty. To a Mussulman
the eating of pork is “vile and unclean: fills his soul with aversion,
repugnance, disgust. To this habit their antipathy is deep and
intuitive. To the natives of Western India, eating beef is sacrilegious
and revolting. In Spain, any other worship than that established by
the Catholic church is impious and in the highest degree offensive
to God. The people of all Southern Europe regard a married clergy as
irreligious, indecent, unchaste, gross and disgusting. Wherever the
Puritans have been sufficiently powerful they have endeavored to put
down all public, and nearly all private amusements: music, dancing, the
theatre and public games.”

This denomination, strange as it may seem, also urge upon mankind
what, in their opinion, is the “true moral rule”--the correct standard
of right. It is that which is established by authority, custom, or
general consent. A variable and doubtful criterion, this, one would
naturally suppose. How severely has it been treated by Spencer and
Carpenter. Right and wrong are not _essentially_ different. All
moral distinctions are a matter of arbitrary establishment by the
“powers that be.” That which is statutory, customary, fashionable, or
generally habitual, is fit and proper. Conduct is purely a question of
majority and might. Place gambling in the ascendant to-morrow and it
would be just; or, as the major part of humanity, gamesters would be
respectable; for an opinion commonly accepted is the correct opinion.
With this as a guide, can the state hold the gamester reprobate?

Society keeps changing its sentiments with the centuries. Absolutely,
we can never know when it is right or when it is wrong. The outlaw
of one era is the idol of another. Servetus was immolated by the
Calvinists, to-day he is a martyr to conscience. Bruno was burned as a
heretic, now he is the hero of philosophy and science.

Galileo and Roger Bacon were once execrated by the church--their bones
lie in unknown and unhonored graves. We regard them as brave pioneers
of human thought. The formerly despised and hunted Christians are
become the greatest power on earth. The Jew money-lender of the “dark
ages” (whom such as Front-de-Bœuf once tortured with impunity) is the
Rothschild of our century--“the guest of princes and the instigator of
commercial wars.” Shylock is now an influential and courted capitalist.
“All the glories of Alexander do not condone, in our eyes, for his
cruelty in crucifying the brave defenders of Tyre, by thousands, along
the sea-shore; and if Solomon, with his thousand wives and concubines,
were to appear in London or New York to-morrow, even the most frivolous
circles would be shocked, and Brigham Young, by contrast, seem a
domestic model.”

From Cæsar we learn that the Suevi held their lands in common; that
private property in the soil did not obtain with the Gauls and Germans.
The same is true of the North American Indians and some of the Pacific
Islanders. It is conceded, moreover, that communistic principles were
generally prevalent in the earliest ages of the world. Then, any
attempt at exclusive individual possession of land or chattel would
have been deemed a theft.

The mediæval ideal was an ascetic and monastic life. To-day, millions
regard such a course as unwise, if not wicked. Poverty, heretofore
esteemed as the badge of honor and dignity, is by our era adjudged
offensive. Nomadism prevailed in a former age. Now gypsies and tramps
are the outcasts of society. Regarding marriage, public opinion has
varied through all phases, without attaining finality. In earliest
times how indiscriminate is the tie--the monstrous relation of brother
and sister being the rule, rather than the exception. Polygamy
prevails with one people and polyandry among another. In India and the
Orient a wife is hidden from the dearest friend, while in Africa a
chief will put his mate to bed with a guest. In Japan young women, even
of good birth, “are free in their intercourse with men, till they are
married; at Paris they are free after.”

In ancient Greece and Rome, again, marriage was not the highest
conception, and largely “a matter of convenience and housekeeping.”
Wives were little, if any better, than slaves. The class of women
known as Hetairai (concubines and mistresses) were openly honored and
trusted by both political and social leaders. The name of Aspasia is
closely associated with that of Pericles. Theodota was the intimate of
Socrates. Diotima has been immortalized in the “Symposium” of Plato.

The splendid ideal of our century is the monogamic state--“the
great theme of romantic literature, and the climax of a myriad
novels and poems.” In classic Greece the idealistic model was male
friendship--comradeship. We have its type in the heroic figures of
Harmodius and Aristogiton. The Theban Legion, or “Sacred Band,”
exemplified the principle. No man might enter without his lover.
Although annihilated at the battle of Chæronæa, it was never
vanquished. The literature of Greece and Rome illuminate this exalted
sentiment. The writings of Pliny the younger, Cicero and Lucian, are
worthy of especial mention. Many sweet and noble friendships are
embalmed in the poetry of Hellas and Latium; Demetrius and Antiphilus;
Damon and Pythias; Phocion and Nicoles; Glaucus and Diomedes; Philades
and Orestes; Cicero and Atticus; Socrates and Alcibiades; Lucilius and
Brutus; Tiberius Gracchus and Blossius; Caius Gracchus and Licinus.

Suicide was not thought unworthy by the ancients. It was resorted to
by Anthony, Brutus, Cassius, Cato, and Zeno. To-day, the attempt
is a crime, and its consummation a disgrace. In Europe and America
it is _felo-de-se_. Infanticide is common in many parts of Asia and
Africa. To-day the feudal baron would be adjudged a freebooter; the
knight-errant a brawling vagabond. A nineteenth century man may
beat his wife within an inch of her life, and get but three months.
For stealing a suit of clothes he would be “sent up” for years. So
“gambling on ’change is now respectable enough, but pitch and toss for
halfpence is low, and must be dealt with by the police. We know that
when questions connected with life contingencies were first considered,
it was regarded as most deliberate gambling to be in any way concerned
in buying or selling such articles as annuities, or any interests
depending upon them.” The age boasts of an advance in the humanities;
and yet, public opinion permits extravagance and selfishness in the
rich while the poor are starving. Our educated classes, generally,
approve the vivisection of animals. In ancient Egypt it would have
been stigmatized as the most abominable of crimes.

From age to age, likewise, law represents the code of the dominant or
ruling class--at all times only valid because it is the code of those
in power. How often used by “authority” for selfish purposes, may be
read on every page of history. Monarchy, absolute or limited, is a
synonym for injustice. Feudalism is another term for murder, rapine
and extortion. In Spain, the lands of nobles were long exempted from
direct taxation. For centuries the Hungarian turnpikes were free to the
aristocracy. Prior to the revolution in France, all burdens of state
devolved upon the lower classes. Less than two centuries ago Scotch
lairds exported their peasantry into slavery. Students will recall the
“Black Act” of George I., and the “Inclosure Laws” of England. Until
quite recently, slavery existed in Europe and America; nor has the
institution wholly disappeared from the earth. Legislation is mainly
in the interest of the wealthy and powerful. Congress and legislatures
are making the rich richer, and the poor poorer. Government is
largely devoted to the creation and upholding of corporations,
trusts, monopolies, subsidies and extortionate tariffs. What care the
politicians for manhood? Wealth is their God.

“Let your rule be the greatest happiness to the greatest number,”
interposes another authority. But are men agreed in their definition
of “greatest happiness?” Different notions of it are entertained in
all ages, amongst every people, by each class. “To the wandering gypsy
a home is tiresome, whilst a Swiss is miserable without one. Progress
is necessary to the Anglo-Saxons; on the other hand, the Esquimaux are
content in their squalid poverty, have no latent wants, and are still
what they were in the days of Tacitus. An Irishman delights in a row,
a Chinaman in ceremonies and pageantry, and the usually apathetic
Javanese gets vociferously enthusiastic over a cock-fight. The heaven
of the Hebrew is a city of gold and precious stones, with an abundance
of corn and wine; that of the Turk, a harem peopled by Houris; that
of the American Indian, a happy hunting-ground; in the Norse paradise
there were to be daily battles, with magical healing of wounds. It was,
seemingly, the opinion of Lycurgus, that perfect physical development
was the chief essential to human felicity; Plotinus, on the contrary,
was so purely ideal in his aspirations as to be ashamed of his body. To
a miserly Elwes, the hoarding of money was the only enjoyment of life;
but the philanthropic Day could find no pleasurable employment, save in
its distribution.”

Francis, Duke of La Rochefoucault, likened the soul of man unto a
medal, so constructed that it may represent either a saint or a devil.
Montaigne, also, said the soul of man was double-faced; the inner
beamed upon self-love, while the outer wore a mask. Voltaire was a
scoffer: a master of satire, who ridiculed without mercy every human
weakness. In “Zadig” and “Micromegas” he mocked the ignorance and
self-conceit of mankind. His “Memnon,” the “Wise Memnon,” who, in the
morning, foreswore all women, made a vow of temperance, renounced
gaming and quarreling, and determined never to be seen at court, was,
before the night of the same day, cheated and robbed by a female, got
drunk, gamed, quarreled with his most intimate friend, and made a visit
to court, where everyone laughed at him. The moral of “Candide, or
the Optimist,” is, as interpreted by Smollett, that nothing is more
absurd than the exercise of human reason; that nothing is more futile
and frivolous than the cultivation of philosophy; that mankind are
savages, who devour one another. This is cynicism, pure and simple. I
cannot endure a creed so ghastly: a philosophy that suspects Socrates
of incontinence, charges Epicurus with prodigality, accuses Aristotle
of covetousness, and can say of Seneca that “he had but the single
virtue of concealing his vices.” Horace took a more charitable view
of the moral philosophers, and ascribed their weakness to inability
rather than hypocrisy. The poet says that men “upon the stage of
this world are like a company of travelers whom night has surprised
as they are passing through a forest; they walk on, relying upon the
guide, who immediately misleads them through ignorance. All of them
use what care they can to find the beaten path again; everyone takes
a different path, and is in good hopes his is the best; the more they
fill themselves with these vain imaginations the farther they wander;
but though they wander a different way, yet it proceeds from one and
the same cause; ’tis the guide that misled them, and the obscurity of
the night hinders them from recovering the right road.”

In truth, the mind of man, unaided by Divine light, is not able to
determine what is absolutely right or absolutely wrong. In the realm of
morals, man is to be guided only by the decrees of God, if known. For
those who recognize the Bible as His word, the way is clear. Aside from
this, the path is dark and uncertain. But nowhere in either the Old or
New Testament, is gambling forbidden. Not a word did Moses or Jesus
utter against it, as a general principle, or in any of its particular
forms. What is commanded by God is our only test of right and wrong.
Theology is of man, and yet it is a fact that gambling, in itself, is
not inconsistent with the profession of any creed in Christendom. The
ablest theologian cannot successfully challenge this proposition.

For the sake of argument, heretofore, I have granted the moral freedom
of man. The fact is, I deny his “liberty,” save in the most restricted
sense. I am convinced every action is determined by the resultant force
of conflicting motives. However, the possible autonomy of man is not
necessary to a consideration of what it is right or best to do. It is
only when we ask about the conduct of man, in his relation to the law,
that it is important to know whether he could have done otherwise. I
reserve the topic for a subsequent chapter.

Be this as it may, certain conclusions are obvious to the impartial
observer. It is very difficult, if not impossible, to draw a strict
boundary between the virtues and vices. Courage should not be carried
to the point of rashness. Timidity is the abuse of prudence. Generosity
can degenerate into improvidence. Reverence might merge into credulity
and superstition. Arrogance is the extreme of self-respect. Chastity
is overdone by the monastic. Some writers, in fact, deny a fixed line
between the virtuous and vicious passions; this class boldly maintain
a place for both vices and virtues. Hatred may be just and anger
magnificent. Although out of place in a drawing-room, obstinacy is a
virtue on the field of battle. Love is divine and lust monstrous. Are
they not yoke-fellows? Reformers, so called, are impossible without
stupid candor and impassive bluntness. Timidity, on the other hand, is
the defect of a sensitive temperament. Sensuality underlies the domain
of art, painting, sculpture and music.

This is suggested by Plato in the “Phædrus”--an allegory of the soul,
wherein the spirit of man is depicted as a chariot to which are
attached a white and black horse. The first typifies our higher and the
latter our lower passions.

Mr. Lecky writes in his “History of Morals,” that in society certain
defects necessarily accompany certain excellencies of character. He
remarks, “Had the Irish peasants been less chaste they would have
been more prosperous.” “Habitual liars and habitual cheats have been
industrious, amiable and prudent.” “Civilization is not favorable to
self-sacrifice, reverence, enthusiasm or chastity.” He declares of the
gambling table, “that it fosters a moral nerve and calmness scarcely
exhibited in equal perfection in any other sphere--a fact which Bret
Harte has finely illustrated in his character of Mr. John Oakhurst, in
the ‘Outcasts of Poker Flat.’”

This thought is boldly illustrated by Mandeville, in his “Fable of the

   “These were called knaves, but, bar the name,
    The grave industrious were the same:
    All trades and places knew some cheat,
    No calling was without deceit.

    The root of evil, avarice,
    That damn’d, ill-natured, baneful vice,
    Was slave to prodigality,
    _That noble sin_; whilst luxury
    Employed a million of the poor,
    And odious pride a million more:
    Envy, itself, and vanity
    Were ministers of industry,
    Their darling folly, fickleness,
    In diet, furniture and dress,
    That strange, ridiculous vice, was made
    The very wheel that turned the trade.”

The author of this unique production announced that his main design
was to indicate the impossibility of enjoying all the most elegant
comforts of life “that are to be met with in an industrious, wealthy
and powerful nation, and at the same time be blessed with all the
virtue and innocence that can be wished for in a golden age; from
thence to expose the folly and unreasonableness of those that, desirous
of being an opulent and flourishing people, are wonderfully greedy
after all the benefits they can receive as such, are yet always
murmuring against those vices and inconveniences, that from the
beginning of the world to the present day, have been inseparable from
all the kingdoms and states that ever were formed for strength, riches
and politeness.”

“To do this, I first slightly touch upon some of the faults and
corruptions the several professions and callings are generally charged
with. After that I show that those very vices of every particular
person, by skillful management, were made subservient to the grandeur
and worldly happiness of the whole. Lastly, by setting forth what
of necessity must be the consequence of general honesty, virtue,
innocence, content and temperance, I demonstrate that if mankind could
be cured of the failings they are naturally guilty of, they would
cease to be capable of being raised into such vast, potent, and polite
societies, as they have been under the several commonwealths and
monarchies that have flourished since creation.”

Not yet, then, have we found the human standard by which the gambler is
to be denounced.

Gamblers are accused of avarice, and an inordinate desire for wealth.
As a rule, the gamester is not penurious. A miserly or covetous grasp
of money is inconsistent with his vocation. Concede the accusation, and
is he alone? Is he more greedy of gain than other men? History refutes
the charge. Money is the god of the world. Get enormous wealth is the
cry, no matter how; no matter how many impoverished widows and squalid
orphans are crying out to heaven, day and night, against you; and such
slavish adulation as the world knows not beside are yours. The passion
for wealth increases gradually, as its end is achieved, the world over.
Its effects are manifest wherever men strive for gold.

   “Gold! gold! gold! gold!
    Bright and yellow, hard and cold,
    Molten, graven, hammered, rolled;
    Heavy to get, and light to hold;
    Hoarded, bartered, bought and sold;
    Stolen, borrowed, squandered, doled;
    Spurned by the young, but hugged by the old
    To the very verge of the church-yard mould,
    Price of many a crime untold;
    Gold! gold! gold! gold!”--_Thomas Hood._

The _morale_ of gambling is not to be determined by political economy,
which is not a part of moral philosophy. It is not founded on the
imperations of duty, but upon the adequate footing of desirableness of
self-interest. In the language of Prof. Perry: “One word circumscribes
the field of morals, ought. One word defines the field of economy,
expediency.” So far as it is a science, political economy is cold
and selfish; “budded on monopoly values.” Judged by such a standard,
gambling would be right, if expedient.

Yes, but is not gambling a destructive luxury? Is it not a wasteful
expenditure of money? I answer, what is luxury, and is it always
an evil? Roscher well says: “The idea conveyed by the word is an
essentially relative one.” Every individual calls all expenditure with
which he chooses to dispense, a luxury. The same is true of every age
and nation. “’Tis a word without any specific idea,” wrote Voltaire,
“much such another expression as when we say Eastern and Western
hemispheres: in fact, there is no such thing as East and West; there is
no fixed point where the earth rises and sets; or, if you will, every
point on it is, at the same time, East and West. It is the same with
regard to luxury; for either there is no such thing, or else it is
in all places alike.... Do we understand by luxury the expense of an
opulent person? Must he, then, live like the poor, he whose profusion,
alone, is sufficient to maintain the poor? Expensiveness should be the
thermometer of a private person’s fortune, as general luxury is the
infallible mark of a powerful and flourishing empire.... Money is made
for circulation. He who hoards it is a bad citizen, and even a bad
economist. It is by dissipating it we render ourselves useful to our
country and ourselves.” David Hume also thought the word of uncertain
signification. He said: “The bound between virtue and vice cannot here
be exactly fixed, more than in other moral subjects. To imagine that
the gratification of any sense, or the indulging of any delicacy, is
of itself a vice, can never enter into a head that is not disordered
by the frenzies of enthusiasm. These indulgences are only vices,
when they are pursued at the expense of some virtue, as liberality
of charity; in like manner as they are follies, when a man ruins his
fortune and reduces himself to want and beggary.” Again, William
Roscher, the political economist, was of opinion that “prodigality is
less odious than avarice; less irreconcilable with certain virtues;”
and that “prodigality, directly or indirectly, increases the demand for
commodities.” We know the Epicureans and Stoics were reproached with
being bad citizens, because their moderation was a hindrance to trade.
Gambling is no more a luxury than many other practices of mankind. Some
persons may prefer it as a pastime to any other form of luxury. Who is
to decide a question of taste and expense but the individual concerned?
One man indulges lavishly in pictures, books, and clothes; another is
prodigal in the matter of tobacco and liquors; a third delights in the
excitement of chance. All these inclinations are luxurious. Which is
preferable to each, is not for society to determine in one case, more
than in the others. In a word, the phases of luxury are so variable and
extensive that it is equally unjust and impracticable for the state to
discriminate unfavorably.

The gambler is said to be idle and non-productive: that a _quid pro
quo_ is not given for what he receives. What is meant here by idleness
and non-production? Does it signify that _labor_ is the proper basis of
exchangeable value: the _only_ just source of what is called wealth?
If so, the condemnation includes all who obtain wealth without working
for it. Suppose it be admitted that _service_ is the one equitable
title to property. What, then, of _assumed_ rights, in the form of
profits, dividends, rent and interest? If _true_ wealth is the outcome
of physical labor, are not banker, broker, middleman, landlord,
capitalist, gentleman of leisure and gambler on the same footing.

Bishop Jewel once said: “If I lend £100, and for it covenant to receive
£105, or any other sum greater than was the sum I did lend, this is
that we call usury: such a kind of bargaining as no good man, or godly
man, ever used.” Many contend that interest contributes nothing to
the support of society, but is a tax on labor. Those who receive it
are said to be extortioners who live on the gains of other people.
Christ, Buddha, Zoroaster, and Mahomet all put usury in the category of
forbidden sins.

It is discountenanced by Ezekiel, Moses, David, Aristotle, Cato, St.
Basil, Masse, Bacon, Buxton, Dr. Wilson and Fenton. Ricardo, the great
economist, was of the opinion that rent is not a creation of wealth,
and adds nothing to the necessaries, conveniences and enjoyments of
society. Adam Smith, the father of political economy, considered rent
as a monopoly price paid for the use of land. Were this true, the owner
of a house, when it had paid for itself, could rightfully charge for
its use, the cost of his labor in transferring it to you, and the
amount of wear and tear.

It is said of the gambler that he is not a man of equivalents. But,
if wealth is to be a question of exact equality in values and labor,
then must business generally be condemned. The great legists, Pomponius
and Paulus, unblushingly said, that “In buying and selling, a man has
a natural right to purchase for a small price what is really more
valuable, and to sell at a high price what is less valuable, and for
each to overreach the other.” Harsh as this may seem, it but voiced the
principles of trade in every age of the world. “Trade is war,” said the
ancient proverb; “and as a nail between the stone joints, so does sin
stick fast between buying and selling.” Business is advantage-taking
erected into a system. Get as much more than you give as is possible.
A thing is worth what it will bring. You may rightfully take from
another what he is compelled to yield. Exchange is not a rendering of
equivalent for equivalent; but an effort to get the largest possible
amount of another’s property, or services, for the least possible
return. In business, justice and mercy are daily displaced by extortion
and mastership: “the producing classes are vassal to the speculating
classes; the creators of wealth to its stealthy possessors.”

The Christian Fathers deprecated trade. “To seek to enrich one’s self
is in itself unjust,” said Clement; “since it aims at appropriating
an unfair share of what was intended for the common use of men.” “If
covetousness is removed,” argued Tertullian, “there is no reason for
gain, and, if there is no reason for gain, there is no need of trade.”
Jerome taught that “as the trader did not himself add to the value of
his wares, therefore, if he gained more for them than he paid, his gain
must be another’s loss.” To Augustine, “business in itself is an evil,
for it turns men from seeking true rest, which is God.” Aquinas decided
“that to buy a thing for less, or sell a thing for more than its value
is, in itself, unallowable and unjust.”

It has been estimated by Bastiat, Karl Marx and Nordau, that laborers
are unjustly deprived of the value of four days labor in each week.
Terrible is the injustice to wage-earners, the world over, if the
deductions of Carpenter and Godwin are to be accepted. “Behold the
hire of the laborers which is of you kept back by fraud, crieth: and
the cries of them are entered into the ears of the Lord of Sabaoth.”
Proudhon and Spencer have revealed the “economic’s lies” of modern
society. “The great game of the business world is the game of getting
on,” wrote John Ruskin; “not of everybodies getting on, but of somebody
getting on. What to one family is the game of getting on, to one
thousand families is the game of not getting on. Nay, you say, they
have all their chance. Yes, so has every one in a lottery, but there
must always be the same number of blanks. Ah! but in a lottery it is
not skill and intelligence that take the lead, but blind chance. What
then! do you think the old practice that they should take who have the
power, and they should keep who can, is less iniquitous when the power
has become the power of brains instead of fist?”

Is this a world of equivalents in labor? What is the ratio of riches
awarded to those who toil? In 1860, the net average income was but
three per cent. Yet, for that year the income of bare money (which
needs no food, clothing or shelter), was all the way from five to
thirty per cent. In England 30,000,000 people are taxed that interest
may be paid to 300,000. In 1870, the interest on the national debts of
the world amounted to $1,700,000,000. This rate in nine years would
absorb a sum equal to the entire property of this country in 1870. We
are informed that trade is annually taxed (interest on capital) about
$200,000,000, for which not one dollar of actual service is rendered.
Is interest on “watered” stock any better than theft?

A world of equivalents, indeed! In our cities five per cent of the
population own more property than ninety-five per cent; and twenty per
cent of the nation own more than the remaining eighty per cent. At the
present rate of increase, within thirty years, 100,000 persons will own
four-fifths of all the property in the United States. In twenty-five
years the number of our people who own their homes has decreased from
five-eighths to three-eighths. In New York City more than 1,100,000
persons are dwelling in tenement houses. “In 1889, the farm mortgages
in the western states amounted to _three billion four hundred and
twenty-two million dollars_.” In England, to-day, there are less than
30,000 landed proprietors--one-half of the country is owned by 150
men. Twelve men own one-half of Scotland. The working classes of the
United Kingdom own but a thirtieth part of the total real and personal

Strictly considered, two things are said to be equivalent when they
are “equal in value.” Generally speaking, however, interchanges are
seldom, if ever, “alike in worth.” The equality of labor for labor does
not occur once in millions of times. “Value” is an indefinite term.
Into “worth” enters such intangible qualities as whim, caprice, taste,
fancy, ambition, pride, habit, desire, appetite, passion and amusement.
Exact and utilitarian standards would destroy _belle lettres_ and the
fine arts; dissipate recreation and the amenities of life. Are there
precise “work-a-day” equivalents for literature, music, sculpture,
painting; for the opera, the theatre, the salon, the club-room? Gaming
is an amusement for many persons. Thousands enjoy the excitements of
chance. It stimulates their spirits above the cares and drudgery of
existence. Such men prefer a game to either book, piano or cigar. With
them it is not a question of utility but of diversion. Is the value of
entertainment to be measured in muscle or metal?

Wherein, essentially, does gaming differ from speculation or insurance?
All have their foundation in chance. Contingencies and uncertainties
enter into each as a consideration for investment. A gamester bets upon
the turn of a card, or the cast of a die. The speculator purchases
in anticipation of contingent advance in the price of a commodity. A
corporation indemnifies an individual, conditionally, against possible
death or loss by fire. In neither instance can the result be foretold:
the gamester may or may not win, the speculator may or may not realize
a profit, the assured may or may not forfeit his life policy, or lose
by fire. In every transaction, fortuity is the controlling element;
if for this reason any one is invalid or immoral, so are the others.
Large sums have been won and lost at cards. Many fortunes had their
origin in speculation: also, it has been productive of widespread
disaster, distress and despair. Insurance companies have benefited
thousands of widows and orphans. Innumerable are the families upon whom
indigence has fallen through the forfeiture of policies. Forfeited
premiums to the amount of millions are now invested in palatial
structures throughout the civilized world. Analysis might show in
gaming, speculation and insurance, that at least the equities and
ethics are even.

View the subject as we may, ye gamester, “where is thine accuser?” To
all men he can say: “He that is without sin among you, let him first
cast a stone.”

Now, some one may ask: “Is not gambling immoral to the extent it may
induce a reliance upon chance for a livelihood, instead of patient
industry.” I might reply: “What is industry, as known to political
economy; and what proportion of the world’s wealth is a result of
direct personal exertion?” But, generally, men are rational creatures,
and do not depend upon games of chance for a living. The credulous
men are relatively few who rely entirely upon the outcome of chance
in games as a business; and those few are at least on a par in wisdom
and ethics with the millions who gamble in future prices of stocks,
grain, and other commodities. “Ah! but you forget,” rejoins my critic,
“that in other pursuits a man produces something by his industry, or
contributes to that result indirectly, whereas in gambling nothing is
produced.” I consider this erroneous, in the face of social experience,
as has been indicated heretofore. It may be as soundly said, that a
“man has no right to invest his money in cattle, or lands, or bonds,
unless his labor is put in with it. A man buys a horse and hires him to
his neighbor. Is he entitled to the money his horse earns for him? He
invests in bonds at fifty cents on the dollar. Does he not hope they
will appreciate in value, until they are worth dollar for dollar? He
pays $1000 for a piece of land. In two or three years, perhaps, his
neighbors have invested around him, and have improved their properties,
and he finds that his land will sell for $2000. His labor did not
contribute to that result. He risked his capital exactly as he would
have done in a game of chance.”

The Destinies;


The Reign of Law.



The Destinies; or, The Reign of Law.

On one occasion, an aged scholar soliloquized as follows: “Homer was
at the same time beggar and poet: his mouth more often filled with
verses than with bread. Plautus turned a mill that he might live.
Menander, Cratinus and Terrence were drowned; Empedocles lost in the
crater of Mount Etna; Euripides and Heraclitus torn to pieces by dogs;
Hesiod, Archilochus and Ibychus, murdered. Sappho threw herself from
a precipice. Condemned by a tyrant, respectively, Seneca, Lucan, and
Petronius Arbiter, cut their veins and bled to death. Poison terminated
the lives of Socrates, Demosthenes and Lucretius.

“In Plutarch, we read of ‘two eminent persons, whose names were Attis,
the one a Syrian, the other of Arcadia, both were slain by a wild
boar; of two, whose names were Acteon, one was torn to pieces by his
dog, the other by assassins; of two famous Scipios, one overthrew
the Carthagenians in war, the other totally destroyed them; four of
the most warlike commanders of antiquity had but one eye--Philip,
Antigonous, Hannibal and Sertorius.’

“Paul Borghese, a writer of rhythmic verse, died of starvation. Tasso,
himself the most amiable of poets, lived like a pauper, and passed away
in an asylum. Bentivoglio, a creator of classic comedies, in the misery
of his old age, was refused admittance to an hospital he had founded.
Cervantes died of hunger, and Camoens ended his days in an almshouse.
The body of Vaugelas was disposed of to surgeons that his debts might
be paid. Spencer was forsaken and neglected in his old age. Decker,
Cotten, Savage and Lloyd breathed their last in jails.

“Might not these men have said, ‘Who can shut out fate?’ Were they the
sport of circumstances, or could circumstances have been made their
sport? Was each independent of fatality? Was he free from destiny; or,
was he subject to an unalterable course--an invincible necessity?”

The query of this venerable sage has been that of civilized man in
every age. Coming into the world with the dawn of philosophy, it will
remain until the veil of Isis is uplifted. Profoundest wisdom has ever
taught the subordination of man to a higher law, by which his career is
largely determined from the beginning. Investigation will disclose that
such, to-day, is the real opinion of a vast majority of mankind.

The thought was ascendant in the literature and religion of the ancient
Greeks. Their Moira was a personification of law; the Goddess of
Destiny, who assigned to everyone his fate, or “share.” At the birth
of man she spun the thread of his future life, pursued his footsteps,
and directed the consequences of his actions, according to the decrees
of Zeus. By some she was conceived as a fatal divinity, who directed
human affairs in such a manner as to restore the right proportions or
equilibrium, wherever it had been disturbed; who measured out happiness
and unhappiness, and allotted losses and sufferings to him who was
blest with too frequent gifts of Fortune, to the end he might be
humbled into acknowledging the existence of bounds beyond which human
happiness cannot proceed with safety.

To Homer she was not an absolute sovereign of both heaven and earth, to
whom even the gods must bow; but merely apportioned the fate of men, as
counseled by Deity. In the theology of Hesiod there were three: Clotho,
the spinning fate; Lachesis, who assigned to man his fate; and Atropo,
who decreed a fate that could not be avoided. This conception answered
to the Teutonic Norns, or Weird Sisters. What was to the earlier poets
of Greece a person, Æschylus apprehended as a principle; a law for
both gods and men; an over-ruling, ever-present, inevitable necessity,
against which it is vain to contend, and from which it is hopeless to
escape. “His characters are pre-determined parricides, murderers and
adulterers.” For instance, the destiny of the pious Amphiaraus led him
to that death his wisdom foresaw; fate impelled him to the society his
judgment forbade. Good Eteocles, too, lies under the band of fate, but
seeks not to avert the doom. “Stern, uncompromising, he will meet the
man he must slay, by whom he must himself fall.” The inexorable destiny
of Æschylus was to Sophocles and Plato an ordering of the divine will.

Two great schools of philosophy divided the educated opinion of classic
Greece and Rome. The tenets of both were fatalistic in tendency. What
was to the Epicurean a “chance” appealed to the Stoic as “law.” Man,
taught Epicurus, is a mere buffet of a blind fatality. The phenomenon
of life, said Stoicism, is governed with iron sway by an imminent
necessity of reason. “Man should be free from passion,” preached
Zeno, “unmoved by joy or grief, and submit without complaint to the
unavoidable power by which all things are governed.”

Buddhism is the doctrine taught by Gautama, the Hindoo sage, in the
sixth century, B. C.; now the belief of a greater part of central and
eastern Asia and the Indian Islands. In this creed, fatality is a
cardinal principle. Sir Edwin Arnold has designated it “The Light of
Asia.” The great religion of Brahma, also, teaches that everything
is subject to a divinely appointed necessity. It boasts a philosophy
that was the admiration of Bruno, Schelling, Hegel, and Draper. Manes
declared that the moral universe was controlled by two supreme
principles; one the author of all good, the other the author of all
evil. The highest conception of Mohammed is an arbitrary and inexorable
law. In the Koran we read: “No man can anticipate or postpone his end.
Death will overtake us, even in lofty towers. From the beginning, God
hath settled the place in which each man shall die.” The Persian poet
sings: “The destinies ride their horses by night. No man can by flight
escape his fate. Whether asleep in bed or in the storm of battle, the
angel of death will find thee.” “I am convinced,” saith Ali, “that the
affairs of men go by divine decree, and not by our administration.”

In the philosophy of Solomon, as recorded in Ecclesiastes, we read:
“The thing that hath been, it is that which shall be; and that which is
done is that which shall be done: and there is no new thing under the
sun.... To everything there is a season, and a time to every purpose
under the heaven: a time to be born, and a time to die; a time to
plant, and a time to pluck up that which is planted; a time to kill,
and a time to heal; a time to break down, and a time to build up; a
time to mourn, and a time to dance; a time to cast away stones, and
a time to gather stones together; a time to embrace, and a time to
refrain from embracing; a time to get, and a time to lose; a time to
keep, and a time to cast away; a time to rend, and a time to sew; a
time to keep silence, and a time to speak; a time to love, and a time
to hate; a time of war, and a time of peace.”

With Christianity came the dogma of “predestination” and “election.”
This was promulgated, on the very threshold, by Paul, a man of the
sublimest genius; adorable, venerable and heroic. Thus he addressed
the church at Rome: “And we know that all things work together for
good to them that love God,--to them who are the called according to
His purpose. For whom he did foreknow, he also did predestinate to be
conformed to the image of his Son, that he might be first born among
many brethren. Moreover whom he did predestinate, them he also called:
and whom he called, them he also justified: and whom he justified, them
he also glorified. What shall we say to these things? If God be for us,
who can be against us?”

This idea is necessarily involved in the theology of St. Augustine, who
maintained that “grace is effectual from its nature, absolutely and
morally, not relatively and gradually.” It remained for John Calvin to
erect the assertions of Paul into a cognate and masterly system. He
insisted upon the purpose of God from eternity, respecting all events.

Briefly, of the religion of the world, to-day, ninety per cent are
predestinarian in theory or practice, consciously or unconsciously. Of
Christendom, those who agree with Arminius are in a small minority,
relatively:--a minority whose creed involves not only the limitation of
divine knowledge, but a paralysis of divine power and the moral chaos
of a universe. That religion is necessarily puerile and unphilosophic
which attempts to reconcile the omnipotence of God with the freedom
of man. Either Nature is ordered for the best--so as to produce the
highest good; or else, everything is purposeless and for the worst. In
a word, either optimism or pessimism must wholly prevail: logically,
a middle ground is impossible. We must choose between Leibnitz or

Literature and religion aside, the greatest intellects have promulgated
a “philosophy of necessity.” Everything that exists, wrote Oersted in
substance, depends upon the past, prepares the future, and is related
to the whole. “Everything throughout creation is governed by law:
but over most of the tracts that come within the active experience
of mankind, the governing hand is so secret and remote, that until
very large numerical masses are brought under the eye at once, the
controlling power is not detected.” Jonathan Edwards said: “Nothing
comes to pass without a cause. What is self-existent must be from
eternity, and must be unchangeable; but as to all things that begin to
be, they are not self-existent, and therefore must have some foundation
for their existence without themselves.” Spinoza urged that “In no mind
is there an absolute or free volition; but it is determined to choose
this or that by a cause, which likewise has been fixed by another,
and this again by a third, and so on forever.” Emanuel Kant contended
that “every action or phenomenon, so far as it produces an event, is
itself an event or occurrence, which pre-supposes another state wherein
the cause is to be met with; and thus everything that happens is but
a continuation of the series, and no beginning which occurs of itself
is possible; consequently, all the actions of the natural causes,
in the succession, are themselves again effects.” Our own Emerson
asserted the omnipotence and omnipresence of law: “That the wilful and
the fantastic, the low and the lofty, are encircled by a necessity.”
Whatever limits us, we call fate. If we are brute and barbarous, the
fate takes a brute and dreadful shape. If we rise to spiritual culture,
the antagonism takes a spiritual form.... The limitations refine as the
soul purifies, but the ring of necessity is always perched at the top.

None greater than these may be found in the noble realm of speculative
thought. They are unequalled by few, if any. The whole field of modern
science, also, is in accord with their deductions: Teaching that nature
is an inevitable sequence, and that all phenomena, material and mental,
are linked together by an inevitable connection. In the words of
Herbert Spencer: “Various classes of facts unite to prove that the law
of metamorphosis which holds among the physical forces, holds equally
between them and the mental forces. Those modes of the unknowable
which we call motion, light, heat, chemical affinity, etc., are alike
transferable into each other, and into those modes of the unknowable
which we distinguish as sensation, emotion, and thought; these in their
turns being directly or indirectly re-transferable into the original

Would you dethrone man, I am asked? No; I surrender to the behests of
philosophy as fortified by the deductions of science. Years ago it was
argued by Comte that, in social order, the higher must subordinate
itself to the lower. That the organic finds itself controlled and
limited by the inorganic world, and man has to work out his destiny in
submission to all the necessities, physical, chemical and vital, which
are pre-supposed in his existence. “The higher,” he continued, “can
overcome the lower only by obedience; if it is to conquer, it must at
least ‘stoop to conquer.’” And as was once stated by Doctor Conolly,
“All the superiority of man, all those faculties which elevate and
dignify him, this reasoning power, this moral sense, these capacities
of happiness, these high aspiring hopes, are felt and enjoyed and
manifested by means of the nervous system. Its injury weakens, its
imperfections limit, its destruction ends them.”

But, it may be asked, is not this a denial of “free-will?” Yes, as
popularly understood. A “free-will,” in the metaphysical sense, is
impossible. The conception is unknown to the best modern psychology.
The abstract will, of certain metaphysicians, is a phantasm.
Individual volitions, only, come within our actual experience. They
have been generalized, by mental philosophers, into a self-existent,
self-sustaining, and self-procreating entity. However, an abstraction
is not an essence. Such men but tell us what a “free will” should
be; that it exists has never been demonstrated. Again, the phenomenon
“will” is now known to be transmitted from generation to generation.
Heredity teaches that its energy and its weakness are connected
with certain states of the organism. “We can no longer doubt the
transmission takes place by means of the organs, and, in fact, that
the ‘will’ is physiological.” Moreover, in a philosophical sense, the
idea is “at war” with a uniform law of cause and effect. Chance events
are inconceivable in a universe of causation. Freedom of the will,
therefore, is a delusion. For ages men believed that the sun revolved
around the earth, because it seemed to do so. A similar illusion is at
the base of our ethical system, since we enjoy only the appearance of
liberty. “Our apparent freedom consists in the absence of all physical
restraints, and in our power to do as we please; but what we please to
do depends upon our mental constitution and the circumstances in which
we are placed.” The idea was beautifully expressed by Emerson in his
poem “Fate.”

   “Deep in the man sits fast his fate,
    To mold his fortune, mean or great:
    Unknown to Cromwell as to me
    Was Cromwell’s measure or degree;
    Unknown to him as to his horse,
    If he than his groom be better or worse,
    He works, plots, fights in rude affairs,
    With Squires, Lords, Kings, his craft compares,
    Till late he learned, through doubt and fear,
    Broad England harbored not his peer.
    Obeying time, the last to own
    The genius from its cloudy throne,
    _For the prevision is allied_
    Unto the thing so signified;
    _Or say, the foresight that awaits,
    Is the same genius that creates_.”

In human history, as in physical nature, therefore, every event is
linked to its antecedent by an unavoidable connection, and such
precedent is connected with an anterior effect; and thus the whole
would form a necessary chain, in which, indeed, each man may play his
part, but can by no means determine what the part shall be.

The moral actions of men, said Buckle, are the product of their
antecedents. In other words, when an action is performed, it is
performed in consequence of certain motives; those motives are the
results of some antecedents; “therefore, if we were acquainted with
the whole of the antecedents and with all the laws of their movements
we could with certainty foretell the whole of their immediate results.
This great social law is liable to disturbances which trouble its
operation, without affecting its truth.”

Ergo, given any set of circumstances, and nothing could have happened,
save that which did happen; and under exactly the same conditions, the
conduct of men must ever issue in the same results. The past should
be dismissed without regrets. Our position, at any time, should be
judged as it really is, and not for what we vainly suppose it might
have been; “for nothing is more certain than that we could not have
acted differently in any act of our lives, with the state of mind and
circumstances then existing.”

Statistics, likewise, are daily making it evident that the same
fixed calculable laws exist in the departments of life and mind as
in physics. “In individual cases, or in a limited circle, apparent
uncertainty may exist. Within a given number of cases, however, and a
large field, invariable results may be looked for.”

In the 12th annual report of William Farr, Esq., to the Registrar
General of England, we are told “it may be broadly stated that 27 in
1000 men of the population of the age of 20 and under 60, are suffering
from one kind of disease or another; that several are of long duration,
that others are recurrent, and that some are hereditary.” We are
informed in a subsequent report of the Registrar himself, that it seems
to be a “law” one person out of every 45, living at the commencement
of any year, will die within that year. (The entire system of
insurance--life, fire, and marine--is erected on the principle
contended for in this chapter. Not only do a certain relative number of
men die in each class annually, but the law extends to the number of
policies lapsed each year. There seems also to be a periodicity in the
number of fires and marine disasters.)

According to Porter and Buckle, even “marriage is not determined by
the temper and wishes of the individual, but by large general facts
over which individuals can exercise no authority. It is now known
that marriages bear a fixed and definite relation to the price of
corn.” A century’s experience in England demonstrates that marriages
are regulated by the average earnings of the great mass of people.
Cheapness of provision and not love regulates the number of nuptials.
Combe affirms the same striking coincidence in the ratio of births in
Great Britain.

Another singular fact has been deduced from the official reports of
England and France. “Even forgetfulness is under a constant law.”
Buckle is an authority for the statement that “year after year, the
same proportion of letter-writers forget to direct their letters, in
some part; so that for each successive period we can actually foretell
the number of persons whose memory will fail them in regard to this
trifling occurrence.”

By the same witness we prove “the uniform reproduction of crime is
more clearly marked, and more capable of being predicted than are
the physical laws connected with the disease and destruction of our
bodies.” Before this, Combe had observed a similar uniformity, under
similar circumstances, of the recurrence of crimes. He perceived in
human conduct the same striking indications of constancy in results,
as in the prevalence of disease and the endurance of life. Combe said,
in 1854, in writing by way of comment on a certain report to the
House of Commons: “During the five years, ending with the last year
of an execution, there were committed for the crimes enumerated, 7276
persons, of whom 196 were executed. During the five years immediately
following the last execution, there were committed for the same
offense 7120. Does not this show that these crimes arose from causes
in themselves permanent, and which punishment does not remove?” Rawson
also remarked that the greatest variation which had taken place during
three years, in the proportion of any class of criminals, at the same
period of life, had not exceeded a half per cent.

And Dr. Brown states (Vol. 8 of the Assurance Magazine), that “in
twenty years, the number of persons accused of various crimes in
France, and registered under their respective ages, scarcely varies
at any age, from year to year, comparing the proportional per cent
under each age with the totals.” M. Quatelet deduced from the
statistical returns of government in the same country, that for 1826,
1827, 1828, 1829 and 1830, in each year, there was one person accused
out of every 4463 inhabitants, and 61 condemned out of every 100
accused. “In everything which concerns crime,” observed this greatest
of statisticians, “the same numbers re-occur with a constancy which
cannot be mistaken, and that this is the case, even with those crimes
which seem quite independent of human foresight, such, for instance,
as murders, which are generally committed after quarrels arising from
circumstances apparently casual. Nevertheless, we know from experience,
that every year there not only take place the same number of murders,
but even the instruments by which they are committed, are employed in
the same proportion.” Murder, then, “occurs with as much regularity as
the movements of the tides and the rotation of the seasons.”

“Self-murder,” Buckle observes, “seems to be not only capricious and
uncontrollable, but also very obscure in regard to proof.” Yet, in
different countries, for which we have returns, we find, year by year,
the same proportion of persons putting an end to their own existence.
In London, for example, about 240 persons make away with themselves
every year; the annual suicides oscillating, from the pressure of
temporary causes, between 266, the highest, and 213, the lowest. In
1846, which was the great year of excitement--caused by the railroad
panic--the suicides in London were 266; in 1847 began a slight
improvement, and they fell to 256; in 1848 they were 247; in 1849 they
were 213; in 1850 they were 229.

In the “Journey through India,” Heber mentions the vain attempt of
the English government to check the frequent suicides by drowning,
committed at Benares; and August Comte has exposed the folly of
thinking that suicide can be diminished by the enactments of law-givers.

Of this field, Quatelet says, in conclusion: “The possibility of
assigning, beforehand, the number of accused and condemned which should
occur in a country, is calculated to lead to serious reflections, since
it involves the fate of several thousands of human beings, who are
impelled, as it were, by an irresistible necessity, to the bar of the
tribunal, and towards the sentences of condemnation that there await
them. These conclusions flow directly from the principle, already so
often stated in this work, that effects are in proportion to their
causes, and that the effects remain the same, if the causes which
produced them do not vary.”

Another step is needed to complete our argument in this branch. Actions
are the production of motives. Motives are the effects of determinate
antecedents. Whence these antecedents? They are to be found in the
“Law of Heredity.” Reproduction is governed by law, and “like begets
like.” To quote from Voltaire: “The physical, which is ‘father of the
moral,’ transmits the same character from father to son for ages. The
Appii were ever proud and inflexible; the Catos always austere. The
whole line of the Guises were bold, rash, factious, full of the most
insolent pride and most winning politeness. From Francis de Guise down
to that one who put himself at the head of the people of Naples, they
were all in look, courage and character above ordinary men. I have
seen full length portraits of Francis, of Balafre and his son: they
were all six feet high, and they all possess the same features--the
same audacity on the brow, in the eyes, and in the attitude.” M. Taine
sees in Lord Byron a true descendant of the Berserkers. To Ribot,
the French of the 19th century are the Gauls described by Cæsar and
Strabo. Amphere writes of the character of the Greeks, that it has
not changed; “he has now the same qualities, the same defects as of
old.” The physiology and mentality of parents characterize their
offspring. The human mind is not a blank at birth. Its capabilities and
character are inherited. Every possibility of the soul is innate and
constitutional from the moment of gestation. Such is the verdict of
science substantiated by Ribot, Galton, and Fowler.

That the peculiar anatomy and physiognomy of races is persistent and
hereditary, must be admitted. The truth is verified by every-day
experience. We see it in the Englishman, the Frenchman, the Spaniard,
and Scandinavian. The intellectual characteristics of a people are
likewise transmitted from generation to generation. The Indian, for
example, is ever wild, free, cunning and revengeful. Negroes, on
the other hand, are generally timid, garrulous, urbane and polite.
The Hebrews, again, are noteworthy for intellectual calibre, the
acquisitive faculty, and a clannish spirit.

In the family, likewise, likenesses and stature pass from generation
to generation. So, also, of size. Fowler found this exemplified
everywhere. Some of his illustrations were taken from the Websters,
Franklins, and Folgers. Muscular strength is hereditary, as with the
Douglas, Fessenden, and Garrish families. Physical deformities and
excrescences obey this edict of nature; and it includes disease,
insanity, gray hair, premature death, propensities, length of life and
beauty. The truth is overwhelming that mental faculties and qualities
descend from child to child. These sequences in mental phenomena
operate through generations upon caution, self-esteem, firmness,
pride, benevolence, and religious feeling. Talent and ability go by
descent. Even genius, although akin to divine, is transmissible. “Each
generation,” said Galton, “has enormous power over the natural gifts
of those that follow.... The results of an examination into the kindred
of about 400 illustrious men of all periods of history were such, in
my own opinion, as completely to establish the theory that genius was

Now for my application. Gambling, in some form, is a propensity of the
general mind: an inclination now hereditary in the race. That such must
be the case is clear from Ribot, Maudsley and Da Gama Machado. “The
dead rule over the living,” writes Spencer. “Past generations exercise
power over present generations, by transmitting their nature, bodily
and mental.”

The origin and development of gambling were obvious to the eminent
astronomer, Richard A. Proctor. “Beyond doubt,” he said, “the element
of chance which enters into all lives, has had a most potent influence
in moulding the characters of men. If we consider the multitudinous
fancies and superstitions of men like sailors, farmers, and hunters,
whose lives depend more on chance than those of men in some other
employments, and recognize this as the natural effect of the influence
which chance has on their fortunes, we need not consider it strange if
the influence of chance, in moulding the minds and characters of our
ancestors during countless generations, should have produced a very
marked effect on human nature. An immense number of those from whom
I inherit descent must, in the old savage days, have depended almost
wholly upon chance for the very means of subsistence. When, wild in
wood, the savage ran, he ran on speculation. He might, or he might
not, be lucky enough to earn his living on any day, by a successful
chase, or by finding such fruits of the earth as would supply him
with a satisfactory amount of food. He might have much depending on
chances which he could not avoid risking, as the gambler of to-day has
when he ‘sees red’ and stakes his whole fortune on a throw of the
dice or a turn of the cards. We cannot be doubtful about the effects
of such chance influences even on the individual character. Repeated,
generation after generation, they must have tended to fill men with
a gambling spirit, only to be corrected by innumerable generations
of steady labor; and, unfortunately, even in the steadiest work, the
element of chance enters largely enough to render the corrective
influence of such work on the character of the race much slower than it
might otherwise be. Every man who has to work for his living at all,
every man who has to depend in any way, on business for wealth, has to
trust to chance, in many respects. So that all men, in some degree,
more or less, have their characters modified by this peculiarity of
their environment. The inherited tendency of each one of us towards
gambling, in some one or other of its multitudinous forms, is
undoubtedly strengthened in this way.”

First, we see, it cannot be said that gambling is immoral, sinful, or
irreligious. Second, it is clear the propensity to gamble is as natural
as the temperament or complexion. The law can no more destroy the
natural inclination of the mind, than it can make “one hair white or
black.” If an evil (which in the absolute sense I deny), it is not to
be prevented by legislation. It is no more possible, by direct effort,
to change the gaming proclivity in man than to stem the torrent, or
check the eternal progress of the glacier. The growth of centuries,
down it moves through the years in an irresistible march. Absurd seem
all our demonstrations; how idle, the beating of the air. When one form
passes away another immediately takes its place. Disappearing here, it
appears there. Apparently suppressed in one place it breaks out with
more vigor in another. Continue it will, and continue it must, whether
practiced openly or in secret. If it is not the faro-bank or lottery
it is something worse. If not the gambling-rooms of a Morrissey, a
Daly, a Pendleton or a Hankins, it will be the mammoth palaces (boards
of trade and chambers of commerce, so-called), which now are a feature
of every city in Christendom, and wherein millions upon millions are
wagered annually upon the very bread and meat wherewith our life is
sustained; wherein billions are lost and won, sometimes to the injury
of every department of actual production. There are the open boards of
trade, too, wherein the petty transactions aggregate many millions. I
am told by those who have made it a study for years, that more than
80 per cent of the transactions on the exchange are fictitious: mere
betting on the rise and fall of commodities in price. All authority in
this matter is practically powerless. Inclinations will be satisfied,
and until inclinations change, the demand will be supplied; this,
moreover, in the face of laws however stringent, or police supervision
however effective. Such methods are not only ineffective, but
absolutely injurious to society. No nation or government has succeeded
in restricting, limiting, or curing the gambling spirit and practice.
That this is true, I call upon every candid and fair-minded man of
experience to bear witness. I appeal to lawyers, judges, statesmen,
scientists, philosophers, and the police and municipal authorities
throughout the United States and Europe to corroborate my statement.
The sooner this is generally realized, the better for humanity. What
I have to suggest, instead of the present policy, is reserved for
consideration in another place. I may say here, however, that for the
law to punish what it cannot thereby cure is absurd--absurd as is
every attempt to accomplish the impossible. Systematic education is
the only hope; incessant training the only remedy for appetites and
propensities; either for their correction, restraint, or subversion.
If it had been revealed to man that gambling is a sin, even that
would not vitiate our reasoning in this chapter. God, or absolute
wisdom, should be able to reconcile the existence of an evil with
His own Sovereignty. However, this chapter is not concerned with the
realities of religion, or the true principles of philosophy. As human
conceptions, they have been noted as in accord with the teachings of
science; to show that the human intellect responds intuitively to what
are subsequently known as the laws of nature.

Legislative Exorcism;


The Belief in Word-Magic.



Legislative Exorcism; or, The Belief in Word-Magic.

For ages, mankind were believers in magic. One of the phases was
Exorcism, or a pretended exercise of supernatural power, through
certain words of magic import. “Healing words,” says Van Helmont, “were
used against the devil and all diseases.” And it is asserted by the
Zendavesta that “many cures are performed by words.” That the magic
power of words was a belief of the Greeks and Romans, is evident from
their literature. Thus it is said of Plotin, that while in Sicily he
cured Porphyrius of a fever, “by wonder-working words.” We are told how
Orpheus’ song calmed the storm, and how Ulysses “stopped the bleeding
of wounds by the use of certain words.” They also tell us, that with
words, Cato cured sprains; Marcus Varrus removed tumors; and Servilius
Novianno restored sight to the eyes. It is gravely stated by Pliny that
Cato did not alone use the words, “motas, daries, dardaries, astaries,”
but likewise a green branch, four or five feet long, which he split in
two, and caused to be held over the injured limb. A similar power was
ascribed to the philosopher, Pythagoras. And if “ye olden chronicle” is
to be credited, the curses of Peter of Amiens and Bernard of Clairvaux,
“produced fearful spasms and sufferings, whilst their blessings
restored speech to the dumb and health to the sick.”

The belief in magic is not general in our age of the world. It
has gradually retired before the march of reason and the light of
scientific truth. That all nature, organic and inorganic, animate and
inanimate, is subject to a universal law of cause and effect, is now
a truism to every educated person. Science has forever destroyed the
curative influence of phrases. Reason sternly excludes verbal formulæ
from the realm of physical causation. That any mere words may be used
against disease or injury is now denied by enlightened opinion the
world over. In medicine, therefore, Exorcism is a thing of the past.

One aspect of the superstition still remains, as an obstacle to the
progress of humanity; the possibility of legislating morality into
men. Law-givers still cling to the power of “exorcism” by statute.
Their blind creed is: “beatification and education by law.” “To them,
laws are the cows, whose teats mankind should suck. To them, men are
as dough, which their wisdom would knead.” This adoration of the law
and legislators was systematically inculcated by the 18th century
publicists: Montesquieu, Robespierre, Rousseau, and St. Just. They
seem to teach that “the law cannot come out of us, but must be poured
into us.” But, as Erlanger has said with truth, he who undertakes to
give institutions to a people must feel within himself the capacity
to change human nature, to metamorphose every man, to transmute the
constitution of each individual, to strengthen them; in one word, “he
must take from mankind their own powers, and impart to them a foreign

Statesmen should recognize with Carpenter, that “society is the
gigantic growth of centuries, moving on in a resistless and orderly
march, with the precision and fatality of an astronomic orb.” The huge
being marches on with elephantine tread. The liberal sits on its front
and the conservative on its rear; but both are swept along, whether
they will or not, and both are shaken off ere long, inevitably, into
the dust. One reformer shouts “this way,” and another cries “that,” but
down comes the great foot and crushes both, indifferently; the man who
thought he was right, and the man who found he was wrong; crushing,
alike, him who would facilitate, and him who would impede its progress.
At least, it should be kept in mind, “that laws are made by the people,
and not the people by the laws.” Modern society is so burdened by
an enormous and complex overgrowth of law, that the necessity for
its existence is now a prevailing notion, to the end that men may be
kept in order: that, without the oppressive institution, people would
not follow a systematic life. On the other hand, all observation of
civilized races discovers the directly opposite. The instinct of man
is to regularity of life, and law is but a result or expression of
this. “As well attribute the organization of a crab to the influence
of its shell, as ascribe the orderly life of a nation to the action of
its laws.” The law may have a purpose, but to believe it will preserve
order is illusive. This it certainly does not effect, even with all
its machinery of police, courts and prisons. Fichte said: “The object
of all government is to render government superfluous.” The same
idea has been expressed by Whitman and Paine. Moreover, “if external
authority, of any kind, has a final purpose, it must be to establish
and consolidate an internal authority. When this process is complete,
government, in the ordinary sense, is already rendered superfluous.”

The world has been slow (or loath) to learn the only proper functions
of government. This must be clear to every reader of Bruce Smith,
Lieber and Dick. In the governments of oriental antiquity, political
authority was clothed with a super-eminent and absolute jurisdiction
over the whole life of its subjects; “the manners of their subjects,
their rank, their condition, mode of life, and daily occupations, were
all fixed by the law.”

And, in the opinion of Grecian philosophers, the state was everything,
the individual nothing. In their judgment, the government should not
permit any individual to waste his power and energy, nor should he be
allowed to misdirect it. They insisted the law must first devise the
model of a perfect citizen; and then, by a system of discipline, mould,
or rather distort, into agreement therewith, the character of every
citizen. The powers of state, therefore, should embrace individual
life in its entirety; from infancy to mature age, “in all conditions
and relations, whether domestic, religious, social, industrial or

Such teachings had their illustration in the administration of Greek
governments. In Sparta, for example, under the reign of Lycurgus,
the citizen belonged to the state, rather than to the family. The
individual Athenian did not have a right the Archons were “bound to
respect.” Draco punished even laziness with death, and Solon prohibited
costly sacrifices at funerals. In Greece, Lycurgus seems to have been
the first legislator against luxury. He enacted, for example, that no
Spartan should own a house, or household article, which had been made
with a finer implement than an axe or a saw; and that no cook should
use any other spice than salt and vinegar. Our authorities are Ephorus
and Diogenes Laertius. The sumptuary prohibitions of Solon, according
to Plutarch, were aimed at the female passion for dress, as well as the
pomp of funerals. He likewise placed surveillance over the luxury of

The Dorian races were disposed to austere and rigid habits of life.
A Laconian could not lawfully attend a drinking entertainment. In
Lacedæmonia, frugality and simplicity were the object of the pheiditia.
Gold and silver were interdicted, and their legislation permitted the
use of iron money alone. In Magna Græcia, the Pythagoreans encouraged
the sumptuary policy. Zaleucus, the Locrian legislator, enacted that no
woman should appear in public wearing gold ornaments, or embroidered
apparel, unless her designs were unchaste.

Roman statesmen were not wiser, in their day, than those of Greece.
From the time of the Kings, they sought by law to regulate luxurious
tendencies. We find it in the law of the Twelve Tables: “Do not carve
the wood which is to serve for a funeral pile. Have no weeping women
to tear their cheeks; no gold, no coronets.” Certain foreign articles
of luxury were prohibited about 189 B. C. An important part of the
legislation of Sulla, Cæsar, Crassus, Antony, Augustus and Tiberius,
related to the expenditures for food, funerals and games of chance.
Says Plutarch: “The Romans thought the liberty ought not to be left
to each private citizen to marry at will, to choose his manner of
life, to make feasts; in short, to follow his desires and his tastes,
without being subject to the judgment and supervision of anyone.” The
Oppian Law forbade matrons to have more than a half-ounce of gold,
to wear garments of diversified color, or to use carriages in Rome.
Following a revolt of the Women, in 195 B. C., this law was abrogated.
Inspired by Cato, the Censor, fourteen years later, the Orchian Law
was promulgated. It limited the table expenses, as did the Fannian Law
twenty years after. The Lex Orchia limited the number of guests to be
present at a feast. The general cost of entertainment was fixed by
the Lex Fannia. A limit of one hundred asses was established for some
festivals, and thirty asses for others. Ordinary entertainments were
restricted to ten asses. The Didian Law extended to all Italy.

In Greece, sumptuary laws were seldom or never regarded by the people,
who always entered into a tacit and general conspiracy against their
enforcement. Notwithstanding the Roman _notatio censoria_, luxury
continued to increase with the growth of wealth. No law of senate or
emperor could restrain the tendency. “From first to last,” writes
the historian, “all were habitually transgressed.” In the time of
Tertullian they appear to be of the past.

Instances of like legislation disfigure the statute-books of every
civilized country downward from the fifth century, A. D. All sumptuary
laws, at Rome, were formally repealed by the later emperors; but the
folly thereafter re-appeared when European society began to rally and
segregate under Charlemagne. To illustrate, “in the latter middle
ages, knights were allowed to wear gold, and esquires only silver; the
former damask, the latter satin of taffeta; when the esquires used
damask, velvet was reserved for the knights.” The first legislation
of this character, in the modern world, was enacted by Frederick II.,
in Italy; James I., in Aragon; Philip IV., in France; Edward II. and
Edward III., in England. Commencing in France with Charlemagne, it
first became extensive and flourished under Philip IV. and Charles
VI. From Edward III. until the Reformation, it was in great favor in
England. Great was the absurdity to which legislators were carried by
this vain policy. In Scotland, for example, one parliament forbade
ladies to attend church with the face muffled in a veil, and another
fulminated against superfluous banqueting and the inordinate use of
foreign spices; while a Danish law provided that no servant girl should
wear her hair curled. The edicts of Philip IV. related to extravagance
at table and in dress. An edict of Charles V. forbade the use of
long-pointed shoes. Charles VI. allowed no one to exceed a soup and
two dishes at dinner. Later French kings sought to restrict the use of
gold, silver, silks, embroidery, and fine linen. From Blanqui we take a
sample ordinance of the character under consideration. “The said Lord
the King, being duly informed that the great superfluity of meat at
weddings, feasts and banquets, brings about the high price of fowls and
game, wills and decrees that the ordinance on this subject be renewed
and kept; and for the continuance of the same, that those who make such
feasts, as well as the stewards who prepare and conduct them, and the
cooks who serve them, be punished with the penalties hereunto affixed.
That every sort of fowl and game brought to the markets shall be seen
and visited by the poulterer-wardens, in the presence of the officers
of the police and bourgeois clerks to the aforesaid, who shall be
present at the said markets, and shall cause a report to be made to the
police, by the said wardens. The public shall be likewise bound to live
according to the ordinance of the King, without exceeding the limit,
under penalty of such pecuniary fines as are herein set forth against
the inn-keeper, so that neither by private understanding nor common
consent shall the ordinance be violated.” During the same year, another
ordinance provided “that no bourgeois woman shall have a chariot; no
bourgeois man or woman shall wear green, or grey, or ermine, and they
shall dispose of those they have, by a year from Easter next. The
dukes, counts and barons of 6000 livres, in land, or more, may have
four robes a year, and no more, and the women as many. A knight who has
3000 livres, in land, may have three robes a year and no more; and one
of these three robes shall be for summer. At the principal meals of the
day no one shall have but two viands and a pork soup, and let him not
deceive about it. It is ordained that no prelate or baron shall have
a robe for body of more than 25 Tournish sous, a Paris ell.” In 1294
it was decreed “that every manner of people, who have not an income of
6000 Tournish livres, shall not use, and will not be able to use, any
gold or silver plate for drinking, for eating, or for other use, and
that no person, under penalty of fine and imprisonment, shall practice
any fraud about it.”

In France, laws of this character disappeared near the end of the 16th
century. Under Louis XV. all such laws were practically a dead letter.
“These ordinances are the history of but yesterday,” says an able and
profound student of French legislation; “but ideas and sentiments have
gone far in advance of facts. We have difficulty in comprehending the
interference of government in the domestic affairs of families, and in
contracts which concern only private individuals. Opinion has undergone
an entire revolution. Sumptuary laws can no longer be proposed. We
need not think the change is due to our wisdom, to our pretended
superiority to the ancients; let us simply recognize that the essential
principle of society has changed; the world moves on another basis....
In no century were these laws observed to any great extent. Enactments
of this kind were never effectual in France. Since the Revolution,
no sumptuary laws have been enacted, and yet the luxury of attire
which formerly distinguished the nobility has disappeared. A duke
dresses like anybody else, and he would be ridiculed if he sought to
distinguish himself by a manner of dress different from others.”

It has been observed by one of the great statesmen of England, that
the broad principles of freedom had been early recognized in that
country, and understood by even the citizens of minimum intelligence;
for instance, freedom of locomotion, freedom in the disposition of
property, freedom of opinion in politics and religion. But that
other important features of the same principle were not so quickly
and clearly understood. “I refer,” he continues, “to such matters as
freedom of commercial intercourse and exchange, freedom of contract
in the natural rise and fall of wages and in the condition of labor;
freedom of individual taste and expenditure, in the more private
concerns of life. In many cases, these were matters which affected the
poor and rich alike, but principally the poor, who, in their meagre
parliamentary representation, enjoyed few opportunities for effectual
protest. One can only account for the continuance of those which
materially affected the better classes, who did enjoy representation,
to the fact that, not being familiar with the fundamental economic
laws, which are now so widely understood, they were not prompted to any
practical resistance. It is highly probable, too, that for want of this
knowledge, most people rested satisfied with the vague idea that, in
some way or other, though not very clear, such restrictive legislation
produced some good to somebody.” We pass over those legislative and
executive interferences, which present “every possible contrivance
for hampering the energies of commerce.” Purely economic questions
are not germane to our discussion; such as the numerous and ingenious
restraints upon foreign trade; the attempts to regulate the rate of
wages and the price of food.

Richard II., Henry IV., and Edward IV. legislated against the liveried
suits of the nobility. This was also prohibited by Henry VII.; and
yet, even under James I., says Hume, “we find ambassadors accompanied
by a suite of 500 or 300 noblemen.” During the reign of Edward III.
it was enacted that no man should be allowed more than two courses at
dinner or supper, or more than two kinds of food in each course. Three
courses were permitted on the festival days of the year. Foreign cloth
was allowed to the royal family alone. Unless a man possessed at least
£100 per annum he was forbidden furs, skins and silks. During the
same reign, another act divided the people of England into classes,
and prescribed the apparel of each. In the social scale it did not go
higher than knights, and minutely regulated the clothing of women and
children. It was repealed the following year. In 1363 it was enacted
that servants should have only one meal a day of flesh or fish. The
statute of 1444 attempted to regulate the price of clothing for each
year: a bailiff, 50_s._; principal servant, 40_s._; ordinary servant,
33_s._ 4_d._ James I., of Scotland, forbade not only “sumptuous
clothing,” but the use of pies and baked meats, to all under the rank
of baron. The Scottish sumptuary law of 1612 was the last in Great
Britain. The English laws were largely repealed during the reign of
James I. A few remained on the statute book as late as 1856. Mr. Froude
has exposed the folly of their existence.

It has been said of the English laws they “were at all times inspired
by a desire to arrest an irresistible movement, resulting from the very
force of things--from the logical development of human activity. They
were, moreover, powerless, and always evaded by a sort of tacit and
general conspiracy of all the citizens, without anyone being able to
find fault with the principle, without anyone thinking of contesting
the power of the legislator on this point.”

Roscher remarks: “In Ireland the government had endeavored for a
long time to preserve that country from the ravages of alcohol, by
the imposition of the highest taxes, and the severest penalties for
smuggling. Every workman in an illegal distillery was transported for
seven years, and every town in which such a one was found was subject
to a heavy fine. All in vain. Only numberless acts of violence were now
added to beastly drunkenness.”

In another place, Roscher continues thus: “Where it has been attempted
to suppress the consumption of popular delicacies, the impossibility of
enforcing sumptuary laws has been most strikingly observed. Thus, in
the 16th century, an effort was made as regards brandy; in the 17th,
as regards tobacco; in the 18th, as regards coffee. The Hessian law
of 1530 provided that only apothecaries should retail brandy. In 1624
Papal excommunication was fulminated against all who took snuff in
church, and was repeated in 1690. According to a Turkish law of 1610,
all smokers should have their pipes broken against the nose. In 1634 a
Russian law prohibited smoking under penalty of death. In Switzerland,
even in the 17th century, no one could smoke except in secret. In its
native place even coffee had a hard struggle. Prohibited in Turkey in
1633 under pain of death; it was still prohibited in Basel in 1769,
and could be sold by apothecaries only as medicine. In Hanover the
coffee trade was prohibited in 1780. When governments discovered the
fruitlessness of these efforts, they gave up the prohibition of these
luxuries, and instead substituted taxes on them, thus aiming to combine
a moral and a fiscal end. Even Cato took this course. His office of
censor, which united the highest moral superintendence with the highest
financial guidance, must of itself have led him in this direction.”

Strange it is how slowly men learn by experience. We know of the many
oppressions in England “for opinion’s sake.” History tells us that
the puritan fathers sought “freedom of conscience” in the wilds of
America. Yet, scarcely were the “pilgrims” of New England wonted to a
strange and inhospitable land, than what they required for themselves
was denied to others. In their fanaticism, the “soul liberty” of Roger
Williams was violated in every conceivable way. Personal freedom was
violated to an extent that is now the detestation of right-thinking
persons. Execrable for their tyrannical spirit, are some of the records
of Massachusetts Bay, Plymouth, New Haven Colony and Connecticut. The
following extracts are taken from the records of the General Court of
the Colony of Massachusetts Bay:

“1635: Whereas, complaints hath bene made to this Courte that dyvers
persons, within this jurisdiction, doe usually absent themselves from
Church meetings upon the Lord’s Day, power is therefore given to any
two assistants to heare and sensure, either by fine or imprisonment,
all misdemeanors of that kind, committed by any inhabitant within this
jurisdiction, provided they exceede not the fine of 15 shillings for
any one offense.”

“1669: Any person or persons that shalle be found smoking tobacco on
the Lord’s Day, going to or coming from the meetings, within two miles
of the meeting house, shall pay 12 pence for every such default to the
colonies’ use.”

“1692: All and every justices of the peace, constables and tything
men are required to restrain all persons from swimming in the water;
unnecessary and unreasonable walking in the streets or fields in the
toun of Boston, or other places; in the evening preceding the Lord’s
Day, or any other part of the said day or the evening following.”

“1634: The court, taking into consideration the greate, superfluous and
unnecessary expenses occassioned by some newe and immodest fashions,
as also the ordinary wearing of golde, silver, silke, laces, girdles,
hat-bands, etc., hath, therefore, ordered that noe person, either man
or woman, shall hereafter make or buy any apparell, either woolen,
silke or lynen, with any lace on it, silver, golde, silke or thread,
under the penalty of the forfeiture of such clothes.”

“1782: Be it enacted that each person, being able of body and mind, not
otherwise necessarily prevented, who shall, for the space of one month
together, absent himself or herself from the public worship of God, on
the Lord’s Day, shall forfeit and pay the sum of ten shillings.”

In old Connecticut we find legislation similar in character. In 1647:
“Forasmuch, as it is observed that many abuses are crept in and
committed by the frequent taking of tobacco, it is ordered by the
authority of this Court, that no person under the age of 20 years, nor
any other that hath not accustomed himself to the use thereof, shall
take any tobacco until he hath brought a certificate under the hands of
some who are approved for knowledge and skill in physic, that it is
useful to him and that he hath received a license from the Court for
the same.”

“1643: Whoever shall prophane the Lord’s Day, or any part of it,
by unlawful sport, recreation or otherwise, whether wilfully or in
careless neglect, shall be duly punished by fine, imprisonment, or
corporally, according to the nature and measure of the sin and offense.”

Here are some of the celebrated New Haven “Blue Laws:”

“Whoever wears clothes trimmed with golde, silver or bone lace, above
two shillings by the yard, shall be presented to the Grand Jurors, and
the selectmen shall tax the offender at £300 estate.”

“No one shall read Common Prayer, keep Xmas or Saint’s Days, make
minced pies, dance, play cards, or play on any instrument of music,
except the drum, trumpet and jew’s-harp.”

“No one shall run on the Sabbath Day, or walk in the Garden or
elsewhere, except reverently to and from meeting.”

“No one shall travel, cook victuals, make beds, sweep house, cut hair
or shave, on the Sabbath Day.”

“No woman shall kiss her child on the Sabbath or fasting day.”

“If any man shall kiss his wife, or any wife her husband, on the Lord’s
Day, the party in fault shall be punished at the discretion of the
Court of Magistrates.”

“Every man and woman duly, twice a day, upon the first tolling of the
bell, repair into the church to heare divine service upon pain of
losing his or her day’s allowance, for the first omission; for the
second to be whipped, and for the third to be condemned to the galleys
for six months.”

“If any man, after legall conviction, shall have or worship any other
god but the Lord God, hee shall bee put to death.”

“If any person turns Quaker, he shall be banished and not suffered to
return, upon the pains of death.”

“No priest shall abide in this dominion, he shall be banished and
suffer death on his return.”

“No man shall hold any office who is not sound in the faith.”

“No food or lodging shall be afforded to a Quaker, Adamite, or other

“Every man shall have his hair cut round according to a cap.”

Such are a few of the laws that disgrace the beginning of our national
life. Repealed they never were, save by the scorn of time, or the
revolt of the human heart, as it struggled into a wider and brighter
existence. They were only effective as the expression of a spirit then
prevalent. Forward marched the soul, and behind is left the hideous
husk. Here and there, on the statute-books of certain states, vestiges
may remain of Sabbatarian legislation, but they are a dead letter, to
enforce which is seldom or never attempted.

Roscher observes, “That the puritanical laws, which some of the states
have passed prohibiting all sales of spirituous liquors, except
for ecclesiastical, medical or chemical purposes, have been found
impossible of enforcement.” Said Dr. Dio Lewis on this subject: “A
very striking illustration of the weakness of law, when it comes in
contact with the instinct of liberty, is the result of prohibition
in Maine. I have taken pains to learn the facts in that state. I
traveled it throughout and conversed with a large number of its leading
citizens, almost exclusively temperance men, and became satisfied
(notwithstanding the prohibitory law), that intemperance is the great
overwhelming curse of the Pine Tree State.” The Doctor then found
fully 300 grog shops in Bangor. He says of Portland, also, the number
of arrests for drunkenness in 1874 was 2011. He is authority for the
statement that, in 1873, the state prison inspectors of Maine reported
the enormous number of 17,808 arrests for drunkenness during that year.

Hon. James McGinnis, of the St. Louis bar, several years ago, gave
the prohibitory legislation of the whole country (and its practical
workings) an exhaustive consideration in all aspects. The results of
his study, published to the world, revealed the same condition of
affairs in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York, Delaware, Maryland, Ohio, Indiana, Nebraska,
Iowa, and Kansas. On every hand, past and present, he “beheld the
impracticability of prohibition.” “I now appeal,” he says, “to the
fair-minded reader to give his thoughtful attention to the facts and
figures which I have truly and fairly presented, to show that neither
crime, pauperism, intemperance, nor any of the ills which are popularly
supposed to grow out of intemperance, have been at all lessened by

The political economists are practically unanimous in their
reprobation of these laws. Adam Smith vigorously protests against
their impertinence and presumption. Of sumptuary laws it has been said
their enforcement is exceedingly difficult, as it is always harder
to superintend consumption than production. “The latter is conducted
in definite localities. The former is carried on in the secrecy of a
thousand homes. Besides, such laws have very often the effect to make
forbidden fruit all the sweeter.” Spite of the penalties attached to
their violation, and of redoubled measures of control, government
after government have been compelled to admit their failure in this
direction. Laws of this nature always involve an abridgement of
individual “liberty,” and of the natural right of every man to do what
he “will” with his own. They involve the assumption, also, that a
government, with the exercise of paternal authority can judge better
than the citizen what will best subserve his or her welfare, in the
use of what they have. “But such action belongs more properly to the
spiritual than to the temporal power. In ancient life, where there
was a confusion of the two powers in the state system, sumptuary
legislation was more natural than in the modern world, where those
powers have been generally, though imperfectly, separated.”

“I have learned to doubt,” wrote Dr. Dio Lewis, “whether law is very
potent in the cure of moral evil. Force is a good agency in breaking
rocks and subduing wild beasts; but in curing immorality, in which
we strive to regulate the action and reaction of the faculties and
passions of the human soul, force is about as well adapted to our
purpose as a sledge-hammer to regulating a watch. Some people seem to
have the impression that society is restrained from evil by law; that
our wives and daughters are virtuous because there is a law against
prostitution; that our exemplary citizens refrain from profanity and
excess in gaming and drinking because they are forbidden by law; that
somehow society is kept in order by law.

“It is not denied that Massachusetts has to-day upon her statute-books
other laws involving the same violation of personal liberty as
prohibition; but every law interfering with personal habits and
propensities has no practical vitality.

“For example, prostitution is an enormous evil; and we have a
severe statute against it; but, as a matter of fact, if a house of
prostitution be conducted in a quiet, unobtrusive way, the authorities
cannot break it up. If any prohibitionist can devise a method by which
the authorities can break up such a house, it would be easy to sell his
discovery to property holders of New York City for a hundred million of

“Scattered throughout this city (Boston) there are unnumbered rooms
over stores, and other places of business, and in private houses,
occupied by persons who are living in the relation of husband and
wife without legal marriage. There are not two punishments for every
hundred thousand violations of the statutes against such intimacies.

“Gambling is very common in our city. There is a great number of rooms,
or suites of rooms, devoted to this practice. In club houses and many
hotels, gambling may be found every night, and often lasting all night.
Not a fiftieth part of the gambling done in this city takes place
in gambling rooms. Why does it never occur to anybody to attempt to
enforce the law against gambling in our clubs and other private houses;
should they attempt it they would signally fail.”

Although this was said of New England, it is representative of the
United States and the civilized world. A like picture might be drawn
of every city in our land and throughout Europe. Every candid and
intelligent magistrate, or police official, in the country will admit
that the law never has, and never can, prevent gaming, intemperance
or prostitution. This has been publicly acknowledged by the most
eminent men of affairs in Europe. That it is impossible to suppress or
exterminate the “social evil” has been demonstrated by Acton, Tait,
Parent and Du Chatelet. The latter avows that “licensed houses are the
most judicious and the most consistent with good morals.” The police
establishments of the continent, finding it impossible to prevent
the existence of houses of ill-fame, realized the necessity, not of
authorizing, but of licensing them. The vice is now subject to police
supervision in Paris, Toulon, Lyons, Strasburg, Brest, Hamburg, Berlin,
Vienna, Naples, Brussels, Rheims, Bordeaux, Marseilles, Copenhagen,
Madrid, Malta, Lisbon, Amsterdam and St. Petersburg. A like policy
obtains in Bombay, Hong Kong, Japan, New South Wales and Cape Colony.

On the contrary, England wages war against prostitution. Is it with
success? No; in this respect her cities are the worst in Europe. In
that country 42,000 illegitimate children were born in 1851. It was
estimated that within the five years preceding, 212,000 females had
strayed from the paths of virtue, and thus taken the first step in
prostitution. In 1832, London had a population of 1,000,000, and her
known prostitutes numbered 10,000. Within her limits were then 3,300
brothels. At that time, in Liverpool, there were 5,000 fallen women.
Of houses of ill-fame Dublin had 355; Edinburgh, 219; Glasgow, 204;
Liverpool, 770; Manchester, 308; Birmingham, 797; Hull, 175; Leeds,
179; Norwich, 194. In England, in 1865, there were 500,000 prostitutes.
It has been computed that the unfortunates number about 86,000 in the
London of to-day. It is not surprising, then, that the constabulary of
Great Britain are in despair of their power for good over this evil.
“Sooner or later (they realize) the principle of individual liberty
must triumph, and prostitution must become, under the shadow of general
principles, as unrestricted as any other commerce, moral or immoral.”

In New York City, also, the law has always attempted to repress the
“social evil,” but without avail. This has been openly recognized by
those in authority. In 1875, 1876, and 1877 licensed prostitution
was recommended by a committee of the State Legislature, the Grand
Jury of the City and County of New York, and the Commissioner of
Public Charities and Correction. The committee assumed “that houses
of prostitution must exist;” and its members, therefore, took it upon
themselves “to earnestly recommend to the Legislature the regulating,
or permitting,” or, as they phrased it, “if the word be not deemed
offensive, the licensing of prostitution.” In June, 1876, the Grand
Jury of the Court of General Sessions of the same county and state,
made an official presentment concerning prostitution, in which they
say “that however abhorrent to the views of some, any legislation may
be, which appears to legalize so great an evil, still the fact must
not be lost sight of that it is an evil impossible to suppress, yet
comparatively easy to regulate and circumscribe.” They conclude with
a memorial to the Legislature, “to adopt as early as practicable some
system of laws calculated to confine houses of prostitution, in the
large cities of this state, within certain specified limits, and to
subject them at all times to a careful and vigilant supervision of the
Boards of Health and Police.”

Punitory laws never have, and never will cure the evils to which
society is liable. “Life is sweet,” some one has said, and yet even
the death penalty does not prevent murder. If the menace of death is
not a deterrent, what can be said for lesser penalties like fines and
imprisonment. That capital punishment is not a preventive of crime
was (upon investigation) the conviction of Bentham, Beccaria, George
Clinton, Lord Brougham, Judge J. W. Edmunds, William H. Seward, Wendell
Phillips, Douglas Jerrold, Cassius M. Clay, Dr. Lushington, Edward
Livingston, Theodore Parker, Vice-President Dallas, DeWitt Clinton,
Victor Hugo, Mittermaier, John Howard, Sir Samuel Romilly, Earl
Russell, Lord Houghton, Lord Osborne, John Bright, Lord Hobart, Lord
Kelly, Frederick Robertson, Prof. Fawcett, Charles Dickens, John Stuart
Mill, Canning, Thomas Jefferson, and hundreds of other able, thoughtful
and conscientious men. Their position was not only grounded on
observation, but fortified by the experience of Tuscany, Spain, Italy,
Switzerland, Bavaria, Belgium, San Marino, Denmark, Norway, Sweden,
Michigan, Wisconsin, Minnesota, Maine, Vermont, and Rhode Island.
“There is no passion in the mind of man,” said Lord Bacon, “so weak,
but it mates and masters the fear of death; and therefore death is no
such terrible enemy when a man hath so many attendants about him that
can win the combat of him. Revenge triumphs over death; love slights
it; honor aspireth to it; grief fleeth to it; fear occupieth it.” And
if “the fear of the great future,” writes Bovee, “when painted with the
horrors such as only a Milton or a Pollok could depict, produces no
more marked effect on human action; it is hardly reasonable to suppose
that the menace of death by human law, will be very effective in the
repression of crime.”

The truth is clear to Rev. Octavius B. Frothingham. He declares that
neither crime nor vice can be prevented, remedied, or expelled by force
of law. “Nature will have her way, if not by one channel, then by
another. She will plunge underground, and come up in unexpected spots.
Cunning comes to her assistance. She makes alliance with subterfuge
and deceit. She is sly, swift, ubiquitous. Disappearing in New York,
she turns up in Philadelphia. Expelled from the cities, she takes
refuge in the towns; banished from the towns, she finds coverts in the
cities; hiding in the dens and slums, creeping into the lanes, mingling
with the crowd of harmless things, sheltering herself behind law.
She is a Proteus, able to take on every possible shape of innocence.
Refuse her brandy, she will take opium, morphine, ether, tobacco,
strong coffee, in quantities equivalent to the stimulant desired. You
fancy the community becoming temperate in one respect, and find it
becoming intemperate in another. Opium eaters multiply as dram-drinkers
decrease. The propensity is alive still, and perhaps provoked to
activity by the efforts made to suppress it. The natural appetite being
reinforced by anger, spite, the spirit of resistance to persecution,
which grows dogged and stubborn, fortifying the sense of injustice by
the pride of self-will.

“As if impatient at the slowness of the converting process, weary of
the task of planting vice out, of choking the weeds of instinct with
the flowers of grace, the church undertook, with violent hand, to
pull up the weeds by main force. Instead of abolishing the hydra by
a beautiful law of evolution, which should create a series of nobler
growths; it undertook to cut off the poisonous heads, one by one. It
took boys and girls, at the tenderest age, out of the world, confined
them in religious houses, refused them the joy of the flesh, and the
joy of the eyes, and the pride of life, barred the gates of every
terrestrial garden, mortified their desires, kept them occupied with
prayers and contemplations, and so tried to starve nature to death.

“Christianity, was as consistent, tried to repress the disposition
to unbelief, in its opinion the most fruitful source of vice. The
disposition to unbelief was regarded as the deadliest symptom of the
natural, unconverted heart. To counteract it by an opposite disposition
to belief was tedious and difficult, and the method of repression was
resorted to. The civic power was enlisted in the work of exterminating
pernicious error. Tribunals were created, laws were passed, judges
and executioners were appointed, penalties were devised, heretical
schools were broken up, heretical books were burned, heretical teachers
were banished, silenced, incarcerated, consigned to the flames. Whole
provinces were devastated, towns were destroyed, populations turned
adrift to perish; the entire field of unorthodox thought was ploughed
over and sown with salt. And what was the result of the method, carried
out on this vast scale, with full ecclesiastical and civil powers--the
sacred and the secular authorities combining, the sympathy of the
Christian world aiding, no public opinion opposing, the resources
of wealth conspiring with the resources of fanaticism, to make the
policy of suppression effective? The issue is familiar to all who
care to know the truth, from the reports of historians, who have made
it their business to ascertain and tell the facts. They certainly do
not bear out the conclusion that the method of suppression is wise,
or even practical. On the contrary, they suggest the opinion that
it is impractical as it is unwise. The failure of the method was so
disastrous that it quite defeated the ends.

“If one thing is demonstrated by human history, it is this:--the
attempt to suppress human nature, under any form, so it be nature
that is suppressed, is futile. The old proverbs, which say, ‘Drive
nature out at the door, and she comes in at the window;’ ‘You cannot
expel nature with a fork;’ hold out a truth that is for all time....
Deeply rooted propensities, habits which have become a second nature,
cannot be thus dealt with. No Hercules’ club will avail to kill the
vital principle that grows venomous heads faster than they can be
bruised. The effort to suppress nature by violent measures, is always
followed, always produces a reaction, that is exactly proportioned in
strength to the effort, and fairly balances it. Healthy progress is
slow, gradual, measured, according to the sure conditions of cause and
effect. It consists of a long line of close sequences, knit together,
not mechanically, like a chain, but organically, like a muscle or a
nerve. Every inch of growth implies a preceding inch of growth; there
is no such thing as jump or leap from point to point. You do not make
the elastic band longer by stretching it; you but loosen the cohesion
of its parts; the strain being relaxed, the band resumes its first
condition; the strain being continued, the band looses its elasticity
and breaks. There is no more power than there is.”

M. Guizot, statesman and historian, thought it a gross delusion to
believe in the sovereign power of political machinery. Every day
discloses a failure, every day there reappears the belief that it
needs but an act of some legislative body and a corps of officials
to effect any purpose. The faith of mankind is nowhere better seen.
Disappointment has been preached from the first: “Put not thy trust in
legislation.” Yet the trust in legislation seems scarcely diminished.
Is it not time to reject the law as a social panacea? We should now
realize that measures are usually quite different in effect from what
has been expected. It would be difficult to estimate the number of
legislative disappointments in English and American history; “or the
amount of harm which has been inflicted on society by abortive attempts
at statesmanship.” History demonstrates the incapacity of law-givers.
Says Mr. Jensen, “From the statute of Merton (20 Henry III.) to the
end of 1872, there had been passed 18,110 public acts, of which he
estimated that four-fifths had been partially or wholly repealed.”
And Herbert Spencer estimated a few years ago that “in the last three
sessions of the English parliament, there have been totally repealed
650 acts, belonging to the present reign alone.”

Buckle said, in this connection, every great reform has consisted
“not in doing something new, but in undoing something old. The most
valuable additions made to legislation have been enactments destructive
of preceding legislation, and the best laws which have been passed have
been those by which some former laws were repealed.... We owe no thanks
to law-givers as a class; for, since the most valuable improvements in
legislation are those which subvert preceding legislation, it is clear
that the balance of good cannot be on their side. It is clear that
the progress of civilization cannot be due to those who, on the most
important subjects, have done so much harm that their successors are
considered benefactors, simply because they reverse their policy, and
thus restored affairs to the state in which they would have remained,
if politicians had allowed them to run on in the course which the wants
of society required.”

In the name of “liberty and equality,” a brave battle has been fought
for individuality. Unjust and unwise interference by the state has
been ably resisted. It is demanded that private judgment be released
from the embrace of authority. The truth is, one man has no natural
right to make laws for another. True, he may repel another, when
his own rights are infringed, but he has no right to govern him.
The individual is sovereign merely over himself, and not over his

The greatest minds now insist an individual will more freely act, not
only for the furtherance of personal interests, but also for collective
interests, without being constrained thereto by an external power.
Whenever room is to be made, they say, for the advance of society,
public authority must retire within its narrowest jurisdiction;
yielding, because of its impracticability, all control over concerns
purely personal. “Who remembers having done anything, or having
refrained from doing anything, on account of the statutes? If we could
realize how little civil law contributes to the good conduct and
well-being of society, our interest in legislators would be greatly
lessened. Of the millions upon millions of acts of kindness and justice
which go to make up civilized life, I take it that nine in ten would
not be performed at all, if they were required by law.

John Stuart Mill has clearly defined the limit of individual
“sovereignty”--as it is termed--and where the authority of society
should begin. “Each will receive its proper share, if each has that
which more particularly concerns it. To individuality should belong the
part of life in which it is chiefly the individual that is interested;
to society, the part which chiefly interests society.

“The acts of an individual may be hurtful to others, or wanting in due
consideration for their welfare, without going the length of violating
their constituted rights. The offender may then be justly punished by
opinion, though not by law. As soon as any part of a person’s conduct
affects prejudicially the interests of others, society has jurisdiction
over it, and the question whether the general welfare will or will not
be promoted by interfering with it, becomes an open one. But there is
no room for entertaining any such question, when a person’s conduct
affects the interest of no person besides himself, or need not affect
them unless they like, all the persons concerned being of full age,
and with the ordinary amount of understanding. In all such cases there
should be perfect freedom, legal and social, to do the action and stand
the consequences.”

Everybody agrees with this proposition, in the abstract. At this period
of time, nobody would dispute “personal liberty,” as a “glittering
generality.” People are too smart for that. It would be impolite and
unfashionable. They would agree with you, perhaps, that “personal
liberty” is the source of all progress, the lever of all conquests, the
inspiration of all achievements. “The great, vital, pivotal fact of
human life; all progress and all happiness begin and end in personal
freedom.” O yes, they will readily agree with the rhetoric involved.
“The prize, the precious jewel of the ages, is personal liberty. It
has no equivalents. Untold wealth, a mine of diamonds, a palace, are
baubles by the side of personal liberty. We recognize the supreme
importance of this principle. We are willing that all men should be
free--if they will only do what is best for them. We rejoice in the
utmost liberty of opinion and action--if people will only do and say
what is right.”

Thus is “freedom” trespassed upon, under pretence that is for the
good of the man or men whose rights are violated. Such was probably
the pretext for every tyrannical invasion of popular rights known
to history. Thus was it quaintly put by Dio Lewis: “The Inquisition
believed in the perfect liberty of all men to be Catholics, but if
they caught a man with other notions about salvation, they put a
thumb-screw on him. Our Puritan fathers believed in personal freedom
as no other men ever did. They left their homes, crossed a stormy
ocean, and braved a thousand dangers, that they might be free to
think and say what they pleased. And they were perfectly willing that
all who came along might think and say what they pleased, unless,
as sometimes unfortunately happened, the other men said and thought
things which conflicted with the things which the fathers thought and
said. They sometimes came across a Quaker, whose views did not seem
quite the thing, and they hung him. Our New England fathers believed
in ‘religious liberty.’ Indeed, ‘religious liberty’ was their constant
boast; but if a man did not believe in hell, they would not let him
testify in court.... But our fathers were always very kind about it;
they said he was at liberty, perfect liberty, at any time to believe in
hell, and then he might swear a blue streak.”

What is really meant by this definition of “personal liberty” is the
absolute right of every individual that every other individual shall
act, in every respect, exactly as he ought; “that whosoever fails
thereof, in the smallest particular, violates my social right and
entitles me to demand of the legislature the removal of the grievance.”
“This doctrine,” continued Mill, “ascribes to all mankind a vested
interest in each other’s moral, intellectual, and physical perfection,
to be defined by each claimant, according to his own standard.”

Of this class of men Dr. Lewis well said: “They consider themselves
born to control other men. They are ever inquiring, ‘What ought this
man to do?’ and if that man refuses to do it, ‘How can we compel him?’
They proceed thus: ‘Resolved, That the righteous should govern the
world. Resolved, That we are the righteous.’”

In what language can I fitly designate a principle of action so
impertinent and presumptious? Who can deny the moral “liberty” of his
fellow creature, as an abstract proposition? Is not the moral equality,
or independence of man one of his essential rights? Neither one, nor
any number of persons, is warranted in saying to another of mature
years, what the latter shall, or shall not do with his life for his
own benefit. “He is most deeply interested in his own well-being; the
interest which another person can have in it is trifling, compared with
that which he himself has.” It is time for society to distinguish,
sharply, between the province of morality and that of legislation.
With the same end in view, perhaps, yet they should differ widely in
extent. Admit that morals and the law have the same center, they have
not the same circumference. There may be a moral guide to the conduct
of an individual, through all the details of life, through all the
relationships of society; but legislation cannot be this, and if it
could, it ought not to exercise a continued and direct interference
with the conduct of men. There are many acts useful to the community
which the legislator ought never to command; so are there many hurtful
acts, which he ought not to forbid. There is certainly a broad
distinction between moral and legal rights. For instance, “a man has
no moral right to hate his wife, but he has a perfect legal right to
hate her. A man has no moral right to foreclose a mortgage on a sick
widow’s home, and turn her and her children out in the snow, but he
has a perfect legal right to do it. A man has no moral right to make a
glutton of himself, destroy his usefulness, and thus throw his wife and
children on the town, but he has a perfect legal right to do it.” A man
has no moral right to drink rum, but he has a perfect legal right to do
so. What actions, then, may be legally punished as offenses? “What a
question,” I hear some one exclaim; “are not all men agreed upon it? Do
you ask us to prove an acknowledged truth.” I answer in words of the
great Jeremy Bentham: “Be it so. But on what is founded that agreement?
Demand of each his reasons. You will find a strange diversity of
interest and principles. You will find it not only among the people,
but among philosophers.... The agreement which you see is founded only
on prejudices; and these prejudices vary, according to the times and
places, according to opinions and customs.... People have always said
that such an action is an offense. Such is the guide of the multitude,
and even of the legislator. But if usage has made innocent actions
crimes; if it makes venial offenses appear heavy, and heavy offences
light; if it has varied everywhere, it is clear that we must subject it
to some rule.”

Vices are not rightly punishable by law. They are amenable to education
only. Should A. assist B. to indulge in a vice, and A. uses no fraud
or coercion, and B. is _compos mentis_, A. is not guilty of a crime,
in the proper sense. Suppose A. were a cook, who compounds for B.
rich and delicious dishes, and of which B. partakes to such an extent
that he sickens and dies, A. is not guilty of a crime. Neither is B.’s
indulgence in the strong food or strong drink a crime punishable by
law, only a vice amenable to discretion and judgment.

Correctly considered, then, a crime is an act which one man, with
“malice prepense,” commits upon the person or property of another,
without that other’s consent. Crime may be subject to law. A vice, on
the other hand, is any act or passion in which a person may indulge
himself: malice, hypocrisy, pride, envy, hatred, avarice, ambition,
profanity, falsehood, indolence, cowardice, drunkenness, gluttony,
tyranny, fanaticism, extravagance, etc., etc. Unless this distinction
be recognized by the law, there can be no such thing as individual
right, liberty or property, “no such thing as the right of one man to
the control of his own person and property, and the corresponding and
co-equal right of another man to the control of his own person and

An eminent and respected physician once said to an enlightened
audience: “Not a person before me, but has suffered from vices; indeed,
that is what we mean by the imperfection of human nature. When we
depart from perfection it is a vice. Everybody is guilty of vices.
The people before me, forty years old, should not be so old at fifty
or sixty. Their teeth are decayed, and they have imperfect digestion.
They do not enjoy the full and happy play of all their powers and
faculties, and the greater part of this waste comes from vices. There
are certain secret vices which cannot be publicly named, which are
doing more to break down our vital force, make us prematurely old, and
fetter our souls, than all the crimes committed in the country, and the
legislature can do nothing to cure them.

“Without doubt, gluttony is the most destructive of all our vices. It
obtains among all classes, all ages, and both sexes. Eminent medical
men, in England and America, declare that strong food can count ten
victims, where strong drink counts one.

“Tobacco is doing more injury to the minds and bodies of our nation
than all the murder, theft, burglary, and arson, and yet the
legislature can do nothing to cure the tobacco curse.”

Dr. Lewis wisely continues: “It is not often possible to say of those
acts that are called vices, that they are really vices except in
degree. That is, it is difficult to say of any actions, or courses of
action, that are called vices, that they really would have been vices,
if they had stopped short of a certain point. The question of vice
or virtue, therefore, in all such cases, is a question of quantity
and degree, and not of the intrinsic character of any single act, by
itself. This fact adds to the difficulty, not to say the impossibility,
of any one’s--except each individual for himself--drawing any accurate
line, or anything like an accurate line, between virtue and vice; that
is, of telling where virtue ends and vice begins. And this is another
reason why this whole question of virtue and vice should be left for
each person to settle for himself. Vices are usually pleasurable,
at least for the time being, and often do not disclose themselves
as vices, by their effects, until they have been practiced for many
years, or perhaps for a life-time. To many, perhaps most, of those who
practice them, they do not disclose themselves as vices, at all during
life. Virtues, on the other hand, often appear so harsh and rugged,
they require the sacrifice of so much present happiness, at least, and
the results which alone prove them to be virtues, are so often distant
and obscure, in fact so absolutely invisible to the minds of many,
especially of the young, that, from the very nature of things, there
can be no universal or even general knowledge that they are virtues.
In truth, the studies of profound philosophers have been expended--if
not wholly in vain, certainly with very small results--in efforts to
draw the lines between virtues and vices.

“If then, it be so difficult, so nearly impossible, in most cases,
to determine what is and what is not, vice; and especially if it be
so difficult in nearly all cases to determine where virtue ends and
where vice begins; and if these questions, which no one can really and
truly determine for anybody but himself, are not to be left open and
free for experiment by all, each person is deprived of the highest
of all his rights as a human being; to wit: his right to inquire,
investigate, reason, try experiments, judge and ascertain for himself,
what is, to him, virtue, and what is, to him, vice; in other words,
what, on the whole, conduces to his happiness, and what, on the whole,
tends to his unhappiness. If this great right is not to be left free
and open to all, then each man’s whole right as a reasoning human
being, to liberty and the pursuit of happiness is denied him.” “It
is now obvious, for the reasons already given, that government would
be utterly impracticable, if it were to take cognizance of vices and
punish them as crimes. Every human being has his, or her, vices. Nearly
all men have a great many. And they are of all kinds: physiological,
mental, emotional, religious, social, commercial, industrial,
economical, etc. If government is to take cognizance of any of these
vices, and punish them as crimes, then, to be consistent, it must take
cognizance of all and punish all impartially. The consequences would
be, that everybody would be in prison for his, or her, vices. There
would be no one left to lock the doors upon those within. In fact,
courts enough could not be found to try the offenders, nor prisons
enough built to hold them. All human industry in the acquisition of
knowledge, and even in acquiring the means of subsistence, would be
arrested; we should be all under constant trial or imprisonment for
our vices. But even if it were possible to imprison all the vicious,
our knowledge of human nature tells us that, as a general rule, they
would be far more vicious in prison than they ever have been out of it.
A government that shall punish all vices impartially, is so obviously
an impossibility, that nobody was ever found, or ever will be found,
foolish enough to propose it. The most that any one proposes is, that
government shall punish some one, or, at most a few, of what he esteems
the grossest of them.”

“But this discrimination is an utterly absurd, illogical and tyrannical
one. What right has any body of men to say, ‘The vices of other men we
will punish, but our own vices nobody shall punish? We will restrain
other men from seeking their own happiness, according to their own
notions of it; but nobody shall restrain us from seeking our own
happiness, according to our notion of it. We will restrain other men
from acquiring any experimental knowledge of what is conducive or
necessary to their own happiness; but nobody shall restrain us from
acquiring an experimental knowledge of what is conducive or necessary
to our own happiness.’ Nobody but knaves and blockheads ever think of
any such absurd assumptions as these. And yet, evidently, it is only
upon such assumptions that anybody can claim the right to punish the
vices of others, and at the same time claim exemption from punishment
for his own. The greatest of all crimes are the wars that are carried
on by governments to plunder, destroy and enslave mankind.”

It has been asserted that gambling is a vice. I deny that such is the
case. The proposition cannot be established, as an absolute principle.
If a man chooses to risk his money, on a game of cards, he has a
perfect right to do so, in the abstract, and no man, or any body of
men, has a right to forbid him. “It is his money, and he has a right to
do what he chooses with it. He has a legal right to put it in a gun and
shoot it away, or burn it up, or risk it on a game of chance, or make
any other disposition of it, and no man, or body of men, has a right to
interfere.” For my purpose, as a question of law, the real question is
whether a man may dispose of his own as he chooses? If so, then he has
a right to wager it on a game of cards, or at dice; and it is absurd to
treat as criminal another man who may join in with him in gaming, as an
antagonist. In other words, “If John has at any time or in any place,
the right to wager his money on a game of chance, then it is absurd to
treat as criminal the helping John to do what he has a right to do. If
one participant in a transaction is guilty of crime, so is the other.
But if one participant is guiltless, then the other is guiltless.”

The keepers of gambling resorts are denounced, as though they were
responsible for the gambling propensity in mankind. Now, resorts for
gambling do not cause the passion. It is a tendency to which all men
are prone, more or less. “The essential fact is the existence of this
passion. There can never be any great difficulty in obtaining the means
for its gratification.” If not one way, then in another. If at all,
attack the principle, in whatever guise or by whomsoever practiced.
If some methods are denounced, then should all methods be denounced.
If those who furnish certain “means to the end” are to be punished as
criminals, then should all persons who furnish any “means to the end.”
But to punish any such person is erroneous and very short sighted;
for the primary cause of the trouble, if such it be, is the desire
for gaming. It is impossible to prevent its gratification. As wisely
attempt “to make one’s hair white or black” by virtue of “the statute
in such cases made and provided.”

Suppose the law efficacious, with what consistency does our
jurisprudence make gambling a crime? In general, at common law, all
games are lawful, unless fraud has been practiced. Each of the parties
must have a right to the money or thing played for. He must give his
free and full consent, and the play must be conducted fairly. The
mutual promises of the parties to the wager are held a sufficient
consideration. A large number of such actions have been sustained by
the courts of England and the United States.

For example, it was held that a wager of fifty guineas by one of the
litigants that an appeal from a decree of Chancery would be reversed by
the House of Lords, was not, of itself, void, there being no charge of
fraud. So, wagers as to the time when a railroad would be completed;
or, as to the name of a person whom one of the parties had seen; or,
as to the age of one of the parties; or, upon the price of an article
of commerce; or, as to who would die first, of two persons not privy
to the wager; or, as to whether A. would hit a target; or, upon foot
or horse races; were held valid. Indeed, the tendency of the courts
to discourage wagers of every nature is relatively of recent date. In
many of the United States, the doctrine has been abrogated by statute.
Texas, Delaware, California, and some other states still adhere to the
English rule.

Some of the judgments in England were rendered by the greatest of
judicial minds: Lord Mansfield, Lord Holt, Lord Hardwicke and Lord
Kenyon. In the language of Lord Holt: “When considered in itself,
there is nothing in a wager, contrary to natural equity, and the
contract will be considered as a reciprocal gift, which the parties
make of the thing played for, under certain conditions.” Lord Mansfield
laid it down, that wagers are actionable: “and that the restraints
imposed on certain species, by acts of parliament, are exceptions to
the general rule, and prove it.” And Lord Kenyon declared in Good vs.
Elliott: “Being bound by former decisions, not having the power to
alter the law, not finding any one case against the legality of wagers
in general, and finding cases without number, wherein wagers have
been held to be good, and that the payment of them may be enforced, I
adjudge the wager in the present case good at common law.” It was a
wager that A. had purchased a certain wagon of B.

The source of our jurisprudence is the common law of England. Gambling
was not a crime under this system, and here it would enforce the
contract of wager. I therefore denounce as incongruous and irrational a
statute which seeks to punish the wagerer as a criminal.

Crime, at common law is something essential, so, in its very nature;
grounded in the Mosaic decalogue and the reason of things: murder,
mayhem, adultery, robbery, theft, arson. The wager is akin to none of
these, nor does it come within their spirit. The common law branded as
a criminal him only whom God had thus branded. The wagerer was not of
the number.

In a word, is gambling _malum in se_? In answer, the common conviction
of men has never so regarded it. The common law has ever recognized
a boundary line which separates the _mala in se_ from the _mala
prohibita_. In law, a thing is _malum in se_ when absolutely evil in
itself; “not, indeed, in a philosophical sense,” says the eminent
lawyer, James C. Carter, “but absolutely, according to the universal
conviction, in the political society which so views it; and _mala
prohibita_ are those things, otherwise innocent or indifferent, which
the legislative power, having control over the subject, may declare
to be offenses.” Although not _malum in se_, gambling may be _malum
prohibitum_. If the latter, then it becomes merely a question of public
policy whether or not the state shall license gambling, subject to such
conditions as the police power might impose. At any rate, to the extent
that government is a moral entity, it cannot rightfully punish gambling
as being bad in itself.

“The King is Dead--Long

Live the King.”



“The King is Dead--Long Live the King.”

Expressive was the coronation ceremony in the ancient Dukedom of
Carinthia. The ducal candidate, in a peasant’s garb, and with head
proudly erect, walked towards the marble throne of his ancestors. But
upon it was already seated a peasant, attended by the black bull and
the lean horse--those sad and severe symbols of his class. Then was
commenced between them this rude dialogue:

Peasant:--“Who so proudly dares enter here? Is he a just judge? Has he
the good of the country at heart?”

Duke:--“He is and he will.”

Peasant:--“I demand by what right he will force me to quit this place?”

Duke:--“He will buy it of you for sixty pennies, and the horse and the
bull shall be yours.”

Nowhere, in the past, was the sovereignty of the people more haughtily
declared, than in this formality of the old Carinthians. “It bears the
seal of remote antiquity--of an Homeric or Biblical simplicity.” That
the people were the only true source of power, was admitted even in
the archaic periods of history. Of olden time, there were many forms
of popular government. Aristotle made a study of their institutions.
Greece had her democracies and Italy a great republic. In Asia, then,
as now, the assertion of political power was the sole foundation for
its maintenance.

With the development of Christianity, in Europe, was inculcated the
theoretic idea. Kings were anointed and they ruled by “divine right.”
In the language of Mr. Tiedeman: “The king, who in theory obtained his
authority from God, acknowledged no natural rights in the individual.
Individual activity, for its room, depended upon the monarch’s will.”
In time, however, came the Reformation and political revolutions in
England, France, the Netherlands, Spain and Italy. To-day, the “divine
right” of kings is generally repudiated. It has been displaced by the
ancient principle that all power is derived from the people. “The
people were once subjects of the king. The government is now subject
to the people.” “The king is dead,” but his functions yet live in “the
state,” or the people.

While many ancient statesmen and publicists recognized the proper
origin of power in government, their opinions as to its nature and
extent were neither clear nor sound. Wherever lodged, in their
judgment, power was limitless and irresponsible. Whether exercised by
king or emperor, by an aristocracy or the people, it was absolute.
Politically, in other words, the individual was annihilated by the
state. Government did not permit the existence of any personal right
that it “was bound to respect.” This is also true of later times, in
continental Europe. True, the “divine right” of kings was repudiated,
but not the doctrine of absolutism. “_Vox Populi, Vox Dei_,” became
the general answer to all complaints of the individual against the
encroachments of popular government upon his rights and liberty. In the
name of the people, atrocious crimes were perpetrated by revolutionary

In its proper sense, individual liberty is a development of the
Anglo-Saxon institutions. This doctrine is fundamental to the English
Constitution. The principle is cardinal and vital in the American
system of government. Individual rights are protected by constitutional
restrictions upon power, federal and state. In the United States, every
individual is a king. This accords with the so-called _laissez-faire_
doctrine, of modern development in England and the United States,
which confines the sphere of government within the narrowest limits,
and denies to it the power to do more than provide for public order
and personal security, by the prevention and punishment of crimes and
trespasses. Under the influence of this wholesome principle, with us
and in Great Britain, for one hundred years, the encroachments of
government upon the rights and liberties of the individual have been
comparatively few.

In other words, it has been generally admitted by the wisest and
broadest statesmanship, that private rights and personal liberty do
not exist by the permission of municipal law. They are natural and
founded upon the law of reason; that, therefore, governmental restraint
should “only go to the limit necessary to a uniform and reasonable
conservation of private rights.” Municipal law protects and develops,
rather than creates private rights and personal liberty.

In the United States this “limit” has been generally fixed at the
power to enforce the common and civil law maxim, “_sic utere tuo, ut
alieum non lædas_.” The “police power,” it is called, and extends, in
its broadest sense, to the preservation of peace and good order to the
protection of property rights, “and of the lives, limbs, health and
comfort of all persons.” Any law which goes beyond this, in the United
States, at least, and undertakes to abolish rights, the exercise of
which do not infringe upon the rights of others; or limits the exercise
of rights beyond what is necessary for the public welfare and general
security, is not properly within the police power.

The police power, then, is properly concerned only with crimes and
trespasses. It cannot rightfully invade the realm of ethics, as such.
Crime is theoretically a direct injury to the public, and trespass,
a direct injury to the individual. A vice, on the contrary, is the
inordinate gratification of one’s desires and passions. The primary
damage is to one’s self. In contemplating the nature of a vice, we
are not conscious of a trespass on the rights of others. Vice does
not fall within the police power. Expressed in the language of Mr.
Tiedeman, “the object of police power, is the prevention of crime--the
protection of rights against the assaults of others. The police power
of the government cannot properly be brought into operation for the
purpose of exacting obedience to the rules of morality, and banishing
vice and sin from the world. The moral laws can exact obedience only in
_foro conscientiæ_. The municipal law has only to do with trespasses.
It cannot be called into play in order to save one from the evil
consequences of his own vices, for the violation of a right, by the
action of another, must exist or be threatened, in order to justify the
interference of law.”

The people of this country are generally convinced of this truth. So
widespread is the conviction that, where a law “does not have for its
object the prevention or punishment of a trespass upon rights, it is
impossible to obtain for it an enthusiastic and unanimous support.”
Besides, it is true of every community, when “public opinion is aroused
to an activity that will enforce a law for the prevention of vice, the
moral force alone will be ample to suppress it.” But it is sometimes
urged that an otherwise ineffectual statute may serve to direct public
opinion in the right direction. To this I reply that one unerring truth
is taught by the history of legislation: “It is the utter futility, in
a corrective sense, of a law whose enactment is not the unavoidable
resultant of the forces then in play in organized society. Nothing so
weakens the reverence for law, and diminishes its effectiveness, as
still-born statutes.”

Certain matters are generally recognized to be within the police power
of the state. For instance, the control of infectious and contagious
diseases, of the insane, of habitual drunkards, spendthrifts, vagrants
and mendicants. And finally, by forced construction, it has been
extended to the liquor traffic. The law, it is said, may prohibit the
sale of liquor to minors, lunatics, persons intoxicated, confirmed
inebriates, and other persons with certain weaknesses of character.
Courts maintain that while the liquor traffic is subject to the police
power, yet it may not be entirely forbidden as necessarily injurious
to the public in a legal sense. To quote the Supreme Court of Indiana,
in Beabe vs. State: “Where injury does result (from the use of
beverages) it is usually caused by the shortcomings of the purchaser,
without any participation in the wrong of the seller. No business can
be prohibited altogether, unless its prosecution is necessarily and
essentially injurious. It is the abuse and not the use of beverages
that is hurtful. The use of beverages is not necessarily destructive
to the community.... Fire-arms and gunpowder are not manufactured to
shoot innocent persons, but are often so misapplied. Axes and hatchets
are not made and sold to break heads with, but are often used for that
purpose. Yet who has ever contended the manufacture and sale of these
articles should be prohibited as a nuisance. We repeat, the manufacture
and sale of liquors are not necessarily hurtful, and therefore may not
be entirely prohibited.”

So much for the “police power,” generally considered. But what of its
relation to gambling, if any? If the practice is neither a crime nor
a trespass, then it is not rightfully subject to public regulation.
I have demonstrated to the candid judgment that, of itself, gambling
is not essentially wrong. I insist that, at least, in the absence of
fraud and chicane, it is neither sinful, nor criminal. To gamble with
another is not to assault his person or property by main force. To
wager or bet upon the laws of chance, deceit aside, is not to kill,
maim, rob, or cheat your fellow man; the players freely participate in
the hope of gain or for amusement. Then wherein is the action either
felonious or tortious? Why should the police power interfere? That
it cannot properly do so, under our institutions, is conceded by Mr.
Tiedeman. He is an able and accomplished lawyer, and recognized by the
profession as an authority on the subject. But it may be said, the
effects are injurious, and for that reason the state may forbid the
practice. That gambling is “necessarily and essentially” injurious
to society, I deny. As a pastime, it is innocent, as a principle of
action it permeates the business world. If an amusement, it may be
abused to the detriment of certain individuals, but the abuse of a
thing, innocent in itself, does not make that thing a crime. When an
occupation, it is but natural that the laws of chance should operate
unevenly: to the advantage of some and to the disadvantage of others.
Uniformity of success in affairs is impossible.

Throughout the business world, in every department of human activity,
the losers but bear a fixed proportion to the winners. Some must fail
that others may succeed. Such is the law of existence, as society is
constituted to-day. We are not now concerned with ideals. The realities
suffice for my purpose. Chance is at present the great motive power
of the world. It sustains hope, and stimulates endeavor. Through its
operation men are enriched and nations aggrandized. That some meet with
disaster and encounter misfortune does not prove that appeals to chance
are criminal in their nature, nor that such appeals are “necessarily
and essentially” injurious to the state. Consistently, therefore,
gambling cannot be forbidden because in its pursuit some persons are
fool-hardy and others unfortunate.

I may be asked, “What do you suggest?” I would license gambling, and
place it under such restrictions as would tend to lessen its abuse. I
am willing, for practical purposes, to concede this much to the police
power. If this policy may be claimed for the liquor traffic, why not
for gambling also? Is gambling more injurious than intemperance? No,
the victims of alcohol outnumber the unfortunate gamblers a thousand
to one. The habitual use of intoxicants is necessarily and uniformly
injurious to the individual. This is not true of gambling, as a
pastime. The player may win. Some of the players must win. Whatever
can be said against the prohibition of the liquor traffic, applies
with greater force to gambling. If there are reasons why the sale of
intoxicants may be licensed, by the state and municipal authorities,
such reasons serve but to demand a like privilege for gambling.
Briefly, the rule laid down by the Indiana Supreme Court as to the
liquor traffic, in Beabe vs. State, is clearly applicable to games
of chance as a business. This is obvious from the whole tenor of my
discussion. If the state is not willing to take this step, then leave
the matter to “local option.” Leave it to the municipal authorities,
whether gambling is to be permitted or not, in a given locality. Let it
be a question of policy and toleration, if you will. Regulations may
be imposed, as with the saloon. Recognize the existence of gambling
as a fixed fact, but interpose a surveillance for the prevention of
fraud. As with the saloon, also, provide for the protection of those
weaklings who are ever wards of the law: “minors, drunkards, lunatics
and spendthrifts.” This policy now obtains generally on the continent
of Europe, and to a certain extent in several of the United States:
notably, Arkansas, Texas and California.

“What! would you have gambling public?” Yes, rather than private;
and that is the alternative presented to the wise. The experience
of California, in this matter, is that of every state in the Union,
and all may profit by her example. In the words of Judge Murray of
that state: “The Legislature, finding a thirst for play universally
prevalent throughout the state, and despairing of suppressing it
entirely, attempted to control it in certain bounds, by imposing
restrictions and burdens on this kind of business. The license operated
as a permission, and removed, or did away with the misdemeanor as it
existed.” The issue for practical men is: Shall gambling be in sight
and subject to control, or shall it be out of sight and beyond control.
The “situs” of public gambling is known to the authorities, and thus
may its conduct be supervised and regulated: its every operation may be
hourly inspected by the police, to the exclusion of those whom the law
may with propriety protect from their own acts, and the prevention of
cheating by dishonorable methods and devices. If gambling is public,
in brief, its abuses can be reduced to a minimum. When repressed
at known points, gambling is not thereby discontinued. It is thus
distributed over a wider field, there, secretly to thrive in its worst
features. Then it is that fraud and theft are triumphant: that “brace”
gamblers “wax fat” and their conscienceless harpies pray in secret upon
the unwary and the inexperienced. Public gambling is generally fair and
honest. Secret gambling is too often but another name for a robbery
that cannot be prevented by either police or magistrates. Again, the
number of employees are few, comparatively, in the public gambling
club, and it is without other allurements than naked chance may offer.
Not so the private institution, the patrons of which may freely partake
of most seductive viands and expensive liquors; rents are also higher,
and more employees are required. The private club is costly in the
extreme: an extravagant scale is necessary to its very existence.
This is a severe test to the scruples of a proprietor. In some way he
must meet expenses and insure a livelihood. For an honest gambler the
maintenance of a private club is seldom possible.

“But public gambling would be a temptation to the poor man. You admit
that poor men should not gamble?” I answer, who is the “poor” man?
When you have found him, who is his keeper? Are you the custodian of
his judgment and inclinations? I am of opinion he would repudiate your
guardianship with indignation. “Consistency thou art,” indeed, “a
jewel.” The rich and well-to-do may gamble, perhaps, but not the man
of small resources. I ask, who has the right, for that reason, to say
the latter nay? Not you, rich gambler in stocks and farm products; nor
you, sir, who nightly gamble in the parlor of a comfortable home, or
at the private club you assist in maintaining for that purpose. By what
authority were you constituted the keeper of a less fortunate neighbor?
All this aside, however, the suppression of public gambling will not
deter any man from the pursuit, whether “rich” or “poor.” A thousand
avenues are opened to him, despite the law and the authorities. In this
matter, society must trust to the education of individual character and
the gradual amelioration of mankind. Besides, if gambling were subject
to regulation, as other pursuits, our laws could the better protect
whomsoever it might desire.

Transcriber’s Notes

Punctuation, hyphenation, and spelling were made consistent when a
predominant preference was found in the original book; otherwise they
were not changed.

Simple typographical errors were corrected.

Unbalanced quotation marks were remedied when the change was obvious or
the quotation was found in other sources. The others remain unbalanced.

The illustration on the Title page is a decorative floral; the other
illustrations are decorative headpieces.

Page 109: “the band of fate” was printed that way.

Page 187: Opening quotation mark has no matching closing mark.

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