by Paul R. Spitzzeri
As we continue with our deep dive into the Rev. Ervin S. Chapman’s 1907 pamphlet, “A Stainless Flag,” with the cleric and trained lawyer seeking to justify a total prohibition on the production, sale and consumption of alcoholic beverages from a legal/religious perspective, he, after analyzing the legislative aspect, turned to the judicial component.
Chapman asserted that it was the judiciary’s responsibility “not only to interpret legislative enactments as applied to earthly affairs and to pass upon their constitutionality, but also to declare constitutions, as well as statutes, valid or void according to the demands of the eternal unwritten law of right.” These last four words are particularly vital in the writer’s legalistic worldview, as was noted in part one; namely, that there was a religious (Christian) imperative to make statutory and legal judgments based on the “eternal unwritten law of right,” though one would to have ask how a court would examine precedent, a core function of legal interpretation, through anything “unwritten” and “eternal.”
Yet, he added that judges and courts could rule against any legislation that was “in conflict with immutable law” and called this “a wise and necessary provision against the evils which might come from legislative errors.” The word “evil” was essential to Chapman’s orientation along with what was long called “moral turpitude” in American jurisprudence. The pastor then cited three passages from state and the national supreme courts regarding limits to legislative power, and, while though these are very general, there is mention in an Illinois high court quote of “the interest of public health.”
Not shy from repetition and hammering away at what he considers inviolable precepts, Chapman restated that the judicial imperative was to “constantly be guided by the unwritten and universally,” meaning throughout the world, “accepted law of right.” He cited William Blackstone’s “eternal, immutable law of good and evil,” and other concepts dealing with “public necessity,” “Fundamental Law,” and “the Common Law,” to promote his idea that “IT IS ALWAYS RIGHT, FOREVER UNCHANGEABLE, SUPREME IN AUTHORITY AND IMPERATIVE IN ITS DEMANDS.”
Moreover, Chapman cast this in the light of an “unwritten divine mandate” imposed on judges who were “men of superior ability and learning, with large experience, of extended tenure in office and far removed from distracting influences.” He then added to this:
No one feature of the march of civilization is more thrillingly interesting or profoundly impressive than is the record of the exercise of this prerogative by the judicial department of civil government. This is especially true in the most advanced nations where civilization has attained fullest development and the science and administration of government has been brought to the greatest degree of perfection. The conspicuous landmarks of human progress to which we point with supreme satisfaction are the rulings of earth’s great judicial tribunals upon questions pertaining to human rights and the prerogatives of government.
Chapman insistent that these highest realms of judicial decisions came, again, “not so much by the enactment of laws as by the application of the unwritten law to human affairs.” He quoted from an 1896 work, Moral Law and Civil Law, and its contention that if laws were passed that were deemed to be “immoral in its nature or which results in immorality,” then a governor or judge were mandated from “an oath registered in heaven to declare such legislation void.” The writer was left unnamed but was Indiana attorney Eli F. Ritter, who was also a temperance advocate (and, incidentally, father-in-law of the prominent economic historian Charles Beard.)
The writer determined that Ritter’s position was “in harmony” with a United State Supreme Court statement regarding the ability of courts to “inquire whether the legislature has transcended the limits of its authority” relative to an “invasion of rights secured by the fundamental law.” Again, this meant that courts were “guided” by that eternal legislation “dictated by God Himself” and had to rule based on “that supreme standard of right,” so a passage from the nation’s high court that “no legislature can bargain away the public health or the public morals” was a justification for Chapman’s view that the liquor trade could be banned.
Additionally, the author pointed that legislators and judges (not to mention others, such as witnesses in court, though now there is an affirmation alternative) were required to utter the words “so help me God” as “a recognition of the supreme and binding claims of that higher and unwritten law.” A New York Court of Appeals ruling citation that “sound morality is the corner-stone of the social edifice” and that those violating this precept were to be “condemned under the Fundamental Rule” and this to be done “without mercy or mitigation.” Another instance cited under this concept was a State of Indiana ruling against boxing matches, this determined to be “opposed to the spirit of the Constitution” and a matter of “commanding what is right, and prohibiting what is wrong.” In other words, boxing was determined immoral in that place and at that time.
Warming further to his point, Chapman then proclaimed that, for the judicial element,
In common with the other departments of civil government it is firmly and unyieldingly held to its task by a triple bond of obligation which cannot be broken or cast off. The divine origin of civil government, the divine purpose in instituting and maintaining it, and the divine mandate over it, concur and combine to constitute the most sacred, imperative and unyielding obligation known to humanity. Upon each and every branch of civil government that sacred obligation rets, and it cannot by any process or any possibility be cast off or relinquished.
Another national Supreme Court ruling from 1897 concerning lotteries in Kentucky, meaning this was a gambling issue, concerned whether “the state can sell and barter away” the welfare of its people “and convert the state into dens of bawdy houses, gambling shops and other places of vice and demoralization” that it was a matter of “the essential principles of self-preservation” to limit “a power so revolting because destructive to the main pillars [including moral] of the government.”
The next section was titled “The People Not Supreme” and, despite famous sayings like that of Abraham Lincoln about a “government of the people, by the people, for the people,” Edmund Burke was cited as an authority, while Chapman emphasized doubly that “NOT EVEN BY A UNANIMOUS POPULAR VOTE CAN THAT WHICH IS MORALLY WRONG BE MADE LEGALLY RIGHT.” He went on suggest that, while there was the frequent citation of the Declaration of Independence (of which this year is America250) and its well-known provision of government receiving “their just powers from the consent of the governed,” Chapman wanted to emphasize “just” as part of his eternal divine law concept and said so in this notable manner:
The people who unite in establishing any civil government thereby covenant with the higher powers of the universe, and with themselves, that the administration of that government shall conform to the requirements of supreme, immutable law . . .
It will be in strict accordance with the imperative demand of that obligation, when our National Supreme Court places its brand of outlaw upon that colossal crime of human history—the beverage traffic in strong drink. And whatever may be achieved by our nation in other realms, the just and righteous demands of that sacred obligation will never be fully met by us, until every department and branch of civil government, under the stars and stripes, is purged and purified from all complicity in that most unspeakable iniquity.
The author also remarked that legislators “can transcribe into civil enactments, and judges can incorporate into court decisions only so much of the eternal law of right as existing public enlightenment enables them to discover.” What was this form of enlightenment? Chapman asserted that it was “the ability of public officials to apprehend the eternal laws of right,” though how that was to happen was left unexplained.
He did add another emphasized admonition that WE ARE ALWAYS AT THE DAWNING OF SOME BRIGHT DAY OF HUMAN PROGRESS through “the onward march of civilization and general enlightenment” through the apprehension of “earth’s physical conditions . . . in the light of advances and advancing civilization, the true character of human customs and institutions is disclosed.” This mystical musing continued with Chapman’s insistence that, so understood, “we are not only able to read more accurately the immutable divine mandates” but could “apply those . . . to earthly affairs as with less enlightenment we could not.” The “transformation is as ceaseless as is the flight of time” and laws and rulings are replaced by better ones when “the requirements of the supreme law are discovered, and the true character of earthly customs and institutions are made known.”
Under the heading of “Assurance of Patriotism,” the pastor-lawyer propounded,
That process must soon culminate in a decision of our National Supreme Court which will place the beverage liquor traffic forever under the ban of civil law. I firmly believe it was be so, because I know it ought to be, and because I believe THE INTEGRITY OF THE AMERICAN PEOPLE AND THE RECTITUDE OF THE AMERICAN GOVERNMENT WILL CAUSE THIS NATION TO DO WHAT IT OUGHT TO DO. [Chapman’s recitation of the tripartite obligations imposed on government] not only justifies but makes inevitable and obligatory the unquestioning assurance that such a decision will certainly be rendered in the not distant future.
An “Evils Vanish as Light Increases” sought to link prohibition to the end of slavery because “LIGHT—the bright and beneficent sunlight and advanced and advancing civilization” illuminated both causes. Chapman then tied the recent question of lotteries as it was commented that these “are Immoral and therefore Unlawful” and therefore such activities had no rights that to “the unwritten law” as well as “A TREMENDOUS GROWTH OF PUBLIC SENTIMENT AND AN INCREASE OF PUBLIC ENLIGHTENMENT.”
Next on the list was boxing, with legislative battles in the southern states of Arkansas, Florida and Texas approvingly elucidated and the writer countenanced that the changes underway were taking place “not so much by the enactment of new laws forbidding that evil, as by such an increase of light, as made visible the requirements of immutable law.” That enlightenment on the part of the public of those states “and the consequent clearer comprehension” of how government was supposed to respond was essential, it was proclaimed.
Chapman spent some considerable time on a 1770 British slavery case as emblematic of the idea that a condition or activity considered morally wrong “COULD NOT HAVE A LEGAL EXISTENCE” and added that the decision made slavery illegal in British territory (though, obviously, not the new United States when independence came), even as he insisted that “its subsequent continuance for a few years was by force of habit, and not the authority of government.”
The argument continued that “without that [public] enlightenment, those princely jurists could not have discovered the mandates of the unwritten law which imperatively demanded the decision they unanimously gave to humanity,” though how Chapman knew that was also not disclosed.” He repeated that “having that light, they could not ender any other decision” and then remarked that,
With profound patriotic pride . . . we may properly regard the epoch-marking decisions of our National Supreme Court. By their superior intellectual endowments, and their wide range of learning, the distinguished jurists who compose that court have been able to see more clearly and to realize more fully than could the less gifted masses the sacred claims of humanity and the imperative obligations of government. Therefore, LIKE THE SOLEMN AND CONFIDENT UTTERANCES OF THE OLD HEBREW PROPHETS, OUR SUPREME COURT DECISIONS SOMETIMES HAVE STARTLED THE NATION BY THEIR MAJESTIC AND UNEXPECTED PROCLAMATIONS OF FUNDAMENTAL TRUTH.
How, though, Justice Roger B. Taney’s 1857 ruling on the Fugitive Slave Act, the 1896 decision in Plessy vs. Ferguson or the post-Reconstruction denial of basic civil rights, despite acts of Congress in the 1860s to expand those, to Black Americans squared with Chapman’s nicely drawn circle of “fundamental truth” is an obvious question. Yet, he went on to offer that the high court would retain its standing “to lead in the magnificent march of humanity.”
Chapman’s categorical certainty continued, as he confidently claimed “as definite and fixed as mathematics, as certain and unyielding as the law of gravitation, is the science of civil government and the true principles and requirements of civil law.” American courts “obey an imperious sense of welcome obligation” in their decision-making capacities, which was a mandate to DECLARE UNLAWFUL WHATEVER EXISTING PUBLIC ENLIGHTENMENT REVEALS TO THEM AS IMMORAL OR HARMFUL. Judges acknowledged that “eternal and immutable law” and nullified laws in conflict with it,” while by this rigorous standard “all human institutions, customs and pursuits are judged, and whatever is forbidden by the supreme mandate is condemned and declared unlawful.”
As the cleric moved towards his confusion, he turned his focus to “A Demon’s Doom” and the liquor trade, so we’ll take a break now and return tomorrow with the concluding third part. Check back for that!