第46章 CHAPTER X.(2)

This decision of the Supreme Court of the United State;, carried up from Vermont, Spaulding vs. Preston, 21 p. 9, towit: "If any member of the body politic instead of putting his property to honest uses, converts it into an engine to injure the life, liberty, health, morals, peace or property of others, he can, I apprehend, sustain no action against one who withholds or destroys his property with the bona fide intention of preventing injury to himself or others."

In Kansas every liquor selling place is not only a declared nuisance, but a constitutional outlaw. And in the case from Pennsylvania where a private individual had abated a nuisance, the court held: "We consider it also well settled, as is claimed by this defendant, that a common nuisance may be removed, or, in legal language, abated by any individual.

Any man, says Lord Hale, may justify the removal of a common nuisance, either by land or by Nyater, because every man is concerned in it."

It is not only the privilege of the patriotic citizen to abate a dangerous nuisance but it is commendable. Bishop on Criminal Law, paragraph 1081, says: "This doctrine (of abatement of a public nuisance by an individual) is an expression of the better instincts of our natures, which lead men to watch over and shield one another from harm."

"The buildings, premises and paraphernalia of a nuisance are not legitimate property and have no rights in law. Damages cannot be recovered for their destruction by an individual. The question of malice does not enter into the case at all."

I Bishop's Criminal Law 828; I Hilliard on Torts, 605.

"At common law it was always the right of a citizen, without official authority, to abate a public nuisance, and without waiting to have it adjudged such by legal tribunal. His right to do so depended upon the fact of its being a nuisance. If be assumed to act upon his own adjudication that it was, and such adjudication was afterwards shown to be wrong, he was liable as a wrong-doer for his error, and appropriate damages could be recovered against him. This common law right still exists in full force. Any citizen, acting either as an individual or as a public official under the orders of local or municipal authorities, whether such orders be or be not in pursuance of special legislation or charter provisions, may abate what the common law deemed a public nuisance. In abating it, property may be destroyed, and the owner deprived of it without trial, without notice and without compensation. Such destruction for public safety or health is not a taking of private property for public uses without compensation, or due process of law, in the sense of the constitution. It is simply the prevention of its noxious and unlawful use, and depends upon the principle that every man must so use his property as not to injure his neighbors, and that the safety of the public is the paramount law. These principles are legal maxims or axioms essential to the existence of regulated society. Written constitutions presuppose them, are subordinate to them, and cannot set them aside."

These great principles of civil jurisprudence and popular government apply alike in every state in the Union. An eminent jurist, Judge James Baker, of Evanston, Ill., formerly a resident of Missouri, gives his professional opinion of the late crusading by the women there. He maintains that it was legal; he points out that the saloons raided, at Denver and Lathrop, were unlawful and that they were "nuisances at common law." He quotes Illinois law as follows: "As the summary abatement of nuisances is a remedy which has ever existed in the law, its exercise cannot be regarded as in conflict with constitutional provisions for the protection of the rights of private property and giving trial by jury. Formal legal proceedings and trial by jury are not appropriate and have never been used in such cases." Judge Baker sums up the case thus: "The women who destroyed such property are not criminals.

They have the same right to abate such common nuisances as men have to defend their persons or domiciles when unlawfully assailed. As the women of that state are denied the right to vote or hold office, I think they are fully justified, morally and legally, in protecting their homes, their families, and themselves from the ravages of these demons of vice in the summary manner which the law permits."

More citations might be given proving the legality of joint smashing by the crusaders, but the foregoing is ample, for all fairminded, loyal people. Had the joint smasher's cases been tried on their merits, not one would have been convicted of a misdemeaner. They were arrested, tried, convicted, imprisoned and fined for disturbing the "peace" of a common nuisance, and "malicious" destruction of rebel paraphernalia. Their only intent was against the treasonable liquor traffic. Had there been no liquor dispensing there had been no smashing. This the liquorized courts would not admit for a moment. Every ruling was a burlesque on civil law, a travesty on justice and a contemptible farce. The whole proceedings from beginning to end were a miserable outrage.

DECAY AND DECLINE OF THE AMERICAN REPUBLIC.