The Massachusetts Constitution of 1785 concludes with the now famous words: "To the end that this may be a government of laws and not of men." That is the essence of the spirit of American government. Our forefathers had arisen and thrown off the yoke of England and her intolerable system of penal government, in which an accused had no right to testify in his own behalf and under which he could be hung for stealing a sheep. "Liberty!" "Liberty or death!" That was the note ringing in the minds and mouths of the signers of the Declaration and framers of the Constitution. That is the popular note to-day of the Fourth of July orator and of the Memorial Day address. This liberty was to be guaranteed by laws in such a way that it was never to be curtailed or violated. No mere man was to be given an opportunity to tamper with it. The individual was to be protected at all costs. No king, or sheriff, or judge, or officer was to lay his finger on a free man save at his peril. If he did, the free man might immediately have his "law"—"have the law on him," as the good old expression was—for no king or sheriff was above the law. In fact, we were so energetic in providing safeguards for the individual, even when a wrong-doer, that we paid very little attention to the effectiveness of kings or sheriffs or what we had substituted for them. And so it is to-day. What candidate for office, what silver-tongued orator or senator, what demagogue or preacher could hold his audience or capture a vote if, when it came to a question of liberty, he should lift up his voice in behalf of the rights of the majority as against the individual?

Accordingly in devising our laws We have provided in every possible way for the freedom of the citizen from all interference on the part of the authorities. No one may be stopped, interrogated, examined, or arrested unless a crime has been committed. Every one is presumed to be innocent until shown to be guilty by the verdict of a jury. No one's premises may be entered or searched without a warrant which the law renders it difficult to obtain. Every accused has the right to testify in his own behalf, like any other witness. The fact that he has been held for a crime by a magistrate and indicted by a grand jury places him at not the slightest disadvantage so far as defending himself against the charge is concerned, for he must be proven guilty beyond any reasonable doubt. These illustrations of the jealousy of the law for the rights of citizens might be multiplied to no inconsiderable extent. Further, our law allows a defendant convicted of crime to appeal to the highest courts, whereas if he be acquitted the people or State of New York have no right of appeal at all.

Without dwelling further on the matter it is enough to say that in general the State constitutions, their general laws, or penal statutes provide that a person who is accused or suspected of crime must be presumed innocent and treated accordingly until his guilt has been affirmatively established in a jury trial; that meantime he must not be confined or detained unless a crime has in fact been committed and there is at least reasonable cause to believe that he has committed it; and, further, that if arrested he must be given an immediate opportunity to secure bail, to have the advice of counsel, and must in no way be compelled to give any evidence against himself. So much for the law. It is as plain as a pikestaff. It is printed in the books in words of one syllable. So far as the law is concerned we have done our best to perpetuate the theories of those who, fearing that they might be arrested without a hearing, transported for trial, and convicted in a king's court before a king's judge for a crime they knew nothing of, insisted on "liberty or death." They had had enough of kings and their ways. Hereafter they were to have "a government of laws and not of men."

But the unfortunate fact remains that all laws, however perfect, must in the end be administered by imperfect men. There is, alas! no such thing as a government of laws and not of men. You may have a government more of laws and less of men, or vice versa, but you cannot have an auto-administration of the Golden Rule. Sooner or later you come to a man—in the White House, or on a wool sack, or at a desk in an office, or in a blue coat and brass buttons—and then, to a very considerable extent, the question of how far ours is to be a government of laws or of men depends upon him. Generally, so far as he is concerned, it is going to be of man, for every official finds that the letter of the law works an injustice many times out of a hundred. If he is worth his salary he will try to temper justice with mercy. If he is human he will endeavor to accomplish justice as he sees it so long as the law can be stretched to accommodate the case. Thus, inevitably there is a conflict between the law and its application. It is the human element in the administration of the law that enables lawyers to get a living. It is usually not difficult to tell what the law is; the puzzle is how it is going to be applied in any individual case. How it is going to be applied depends very largely upon the practical side of the matter and the exigencies of existing conditions.

It is pretty hard to apply inflexibly laws over a hundred years old. It is equally hard to police a city of a million or so polyglot inhabitants with a due regard to their theoretic constitutional rights. But suppose in addition that these theoretic rights are entirely theoretic and fly in the face of the laws of nature, experience, and common sense? What then? What is a police commissioner to do who has either got to make an illegal arrest or let a crook get away, who must violate the rights of men illegally detained by outrageously "mugging" them or egregiously fail to have a record of the professional criminals in his bailiwick? He does just what all of us do under similar conditions—he "takes a chance." But in the case of the police the thing is so necessary that there ceases practically to be any "chance" about it. They have got to prevent crime and arrest criminals. If they fail they are out of a job, and others more capable or less scrupulous take their places. The fundamental law qualifying all systems is that of necessity. You can't let professional crooks carry off a voter's silverware simply because the voter, being asleep, is unable instantly to demonstrate beyond a reasonable doubt that his silver has been stolen. You can't permit burglars to drag sacks of loot through the streets of the city at 4 A.M. simply because they are presumed to be innocent until proven guilty. And if "arrest on suspicion" were not permitted, demanded by the public, and required by the police ordinances, away would go the crooks and off would go the silverware, the town would be full of "leather snatchers" and "strong-arm men," respectable citizens would be afraid to go out o' nights, and liberty would degenerate into license. That is the point. We Americans, or at least some of the newer ones of us, have an idea that "liberty" means the right to steal apples from our neighbor's orchard without interference. Now, somewhere or other, there has got to be a switch and a strong arm to keep us in order, and the switch and arm must not wait until the apples are stolen and eaten before getting busy. If we come climbing over the fence sweating apples at every pore, is Farmer Jones to go and count his apples before grabbing us?

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