Extracts from the »» GRAND JURY CHARGE of HON. WALTER B. JONES Judge Fifteenth Judicial Circuit Montgomery, Alabama July Term, 1923 Montgomery, Ala. THE PARAGON PRESS 1923 Extracts from the GRAND JURY CHARGE of HON. WALTER B. JONES A Judge Jones, after explaining to the grand jurors the nature and extent of their duties and the importance of their office, said: And now, speaking to you as a channel of communication between the bench and our people, may I not trespass on your time long enough to call your attention, briefly, to an old proverb and to point out where, in. my judgment, we have of recent years departed from its sound advice. REMEMBER THE ANCIENT LANDMARKS. The wise maxim I refer to is found in the Book of Pro¬ verbs, and there the admonition is given: Remove not the ancient landmark, which thy fathers have set. And II want to direct your attention for a few minutes to one or two ancient landmarks which our fathers of old time did set, and which are today being unsettled. I trust you will not get the impression from anything said here today that I believe the country is “going to the dogs,” or that I think its condition is such as to make us lose sleep because such is not the case. But I do feel that there are some conditions which deserve the serious consideration of thoughtful citizens, and to which your at¬ tention might be called with profit at this time. Certain¬ ly, it is not improper for a judge in charging a grand jury of his fellow citizens, to “whip the boundaries” of their inheritance a little. AN OLD ENGLISH CUSTOM. There was once an old custom in England, back in the Anglo-Saxon days when maps were rare, called “beating the bounds.” When a person sold a piece of land it was the custom for the seller to show the buyer over the prop¬ erty, and to point out the corners and marks by which it 587782 was bounded. In doing so, several small boys were taken along and shown the boundary markers or stones, and sometimes the boys were whipped or even violently bumped on the boundary stones to make them remember. The pur¬ pose of taking the boys along was to insure that witnesses to the boundaries should survive as long as possible. That custom has not prevailed in this country and we do not mark off land that way, but, much more important, there are in our country “ancient landmarks/’ principles of gov¬ ernment and ideals which were established of old by the sacrifices and struggles of our fathers and from which we should not depart, but which should always abide with us. In other words, the boundaries must be whipped now and then to keep us from forgetting these old landmarks. LANDMARKS THAT ARE THREATENED. As I look back upon the history of our country and recall the events which have taken place within the memory of those who sit here, I am mournfully impressed by the fact that the heaviest legislative and other guns of this period have been trained upon three of the ancient land¬ marks most venerated by our forebears, landmarks whose maintenance means, the safety and happiness of our people, whose destruction means insecurity and misery. Those in America who stand today for the maintenance of a repre¬ sentative government such as our fathers planned, are real¬ ly defenders of a beleaguered fortress, a fortress surround¬ ed by enemies who never sleep. The ancient landmarks which I have in mind, particu¬ larly at this time, are three principles of our forefathers: personal liberty, local self-government, and no state inter¬ ference with the private concerns of the indvdual. WHAT IS PERSONAL LIBERTY. By personal liberty I do not mean the right of the indi¬ vidual citizen to do whatever he pleases, regardless of how his actions affect his neighbor. I do not mean the right of unrestrained action, limited only by the will of the per¬ son acting. That is not the kind of liberty we recognize in America. But I do mean freedom of action, the right of a man to do that which is not morally wrong, and does not interfere with the equal rights of his fellow-man. The personal liberty that is in my mind is the inherent right of the citizen to the utmost freedom in the expression of his ( 4 ) Southern Pamphlets Rare Book Collectio® UNC-Chapel H1U opinions, the management of his property, the pursuit of the ordinary callings of life, and the conduct of his private affairs that is consistent with the maintenance of justice and public order. I mean something more than freedom from mere physical restraint or imprisonment; I mean that the citizen has a right to follow such pursuits as may be best adopted to his faculties and which will add to his hap¬ piness. I mean the right of the citizen in all lawful ways to live and work where and how he will, to earn his liveli¬ hood in any lawful calling, and to pursue any lawful trade or avocation. Law-makers, both State and National, of late years seem to have had little respect for this ancient landmark. They have been too busy developing a paternal govern¬ ment that is about to crush out all individual liberty, and which has little regard to some of the fundamental rights of the citizen. The flood of laws regulating the private and domestic affairs of the citizen is shaking to its depths the foundations of that venerable principle of personal lib¬ erty. We are burdened and harassed in this country today by governmental censorship, regulation and interference with private concerns. INDIVIDUAL HAS SOME RIGHTS. In times long past our forefathers, remembering the teachings of history, set up the landmark of individual rights. They held that the true purpose of government was to encourage the people to rely on their own initiative and their own energy, and to protect them in the enjoy¬ ment of their property and their right to administer their own affairs. They held that the individual citizen would be happiest and could best work out his own destiny under a government of few and simple laws, none of which should interfere with his religion, his amusements or his opinions. They held, these old-fashioned statesmen of blessed memory, that the government was based on the consent of the people, founded on their authority, and in¬ stituted for their benefit. They wrote it in the constitu¬ tion that the sole object and only legitimate end of govern¬ ment is to protect the citizen in the enjoyment of life, liberty and property; and it has been thundered down to us from the earliest days that when the government as¬ sumes other functions it is usurpation and oppression. ( 5 ) LAWS CAN NOT CURE ALL EVILS. But that old-fashioned doctrine is fast being thrown overboard, and the people are permitting their present governmental pilots to steer the ship of state out of its old and safe channels and onto the rocks and shoals of ex¬ perimental and unsound legislation and statutory panaceas for all ills. Too many of our people, and certainly too many in the law-making department of the government, are obsessed with the idea that the law is simply a club which the State should use to hamper and restrain the innocent activities and simple pleasures of the people. We have said that a man has inalienable right to life, liber¬ ty and the pursuit of happiness, and yet these inalienable rights have been recently so circumscribed that it is im¬ possible to locate them with a microscope. Only the other day an editorial writer called attention to the statement of a distinguished psychologist who said that a certain legislative body produced nine thousand bills, but that upon applying his brain-scope he found that the membership collectively possessed only eight and one-half ideas on all subjects. Legislation is regarded by many as a sure remedy for all ills of the body politic and many believe that the mill- enium can best be hastened by laws extending the author¬ ity of the government, particularly the federal govern¬ ment, over the private lives and affairs of the citizen. And if one law fails, they simply cry out for more law. They little realize that statutes can not make men honest and good; and that the law can not Daedalian-like affix wings on the backs of citizens and assure them a comfortable and safe passage to Heaven. Vice-president Coolidge has aptly said: “The attempt to dragoon the body when the need is to convince the soul will end only in revolt.” And Professor Roscoe Pound reminds us that in the Sev¬ enteenth Century an undue insistence upon the interests of the sovereign defeated the moral and social life of the individual, and finally required the assertion of individual interests in bills of rights and declarations of rights. And so today there is a like danger that certain social and gov¬ ernmental interests will be unduly emphasized, and that the rights and privileges of the citizens will be greatly abridged by a paternal government. ( 6 ) GOVERNMENT IS FOR BENEFIT OF CITIZEN. The idea is becoming too prevalent and too strongly intrenched in this country that the individual citizen exists merely to support a strong centralized government. Peo¬ ple seemingly forget that this government of the people and for the people was instituted by the people for the benefit of every citizen alike, and that he was not created nor does he live to be used solely as a pawn by government and politician. The government was instituted for his benefit, he bears its burdens, he suffers for its mistakes, and it is his government. Let us not forget that all the progress that has ever been made by mankind has come about from the efforts of the people to emancipate them¬ selves from the bondage and thralldom of governmental regulation and control of private affairs. PEOPLE ARE AFFLICTED WITH BURDENSOME TAXATION. The inquisitive and officious intermeddling by attempted governmental action in all the affairs of the people is put¬ ting in the hearts of good men and good citizens a spirit of disgust and disappointment, if not of contempt for the law. Law-making bodies all over the country are setting up too many false and absurd standards for the private conduct of the citizen, and the plain, every-day man, the back-bone of the government, is getting sick and tired of it all. He feels, and very rightly so, that he is over-governed, over-regulated and over-taxed. He feels the hand of the government on his actions and in his business at every turn. He wants to be let alone, he wants a breathing spell for awhile. He longs for the halcyon days of old when his representatives in the government remembered him as a man to be represented honestly and fearlessly, and as a man, who, however humble his lot might be, was possessed of some personal rights, rights which were as sacred as the Ark of the Covenant, and whose invasion would bring swift and sure the punishment of Uzzah to all who laid profane hands upon them. FIFTY-SEVEN VARIETIES OF TAXES. The citizen wishes his representatives would cease to regard him, in one aspect, as a little child to be cajoled and toyed with and, in another, as an ever plentiful and ( 7 ) never diminishing source of revenue. His representatives may not always remember him, but they are certain to recall him and his little worldly possessions when the time for the imposition of taxes comes. We have in this country a certin very old business which has long and widely advertised its “Famous 57 Varieties.” But that figure would hardly be sufficient to¬ day to cover the great number of taxes which consume the substance of the citizen and afflict air his hours. Verily, it is Taxes to right of them, Taxes to left of them, Taxes in front of them, Taxes behind them. There are property taxes, license taxes, poll taxes, gaso¬ line taxes, mortgage taxes, trial taxes, income taxes, war taxes, inheritance taxes, estate taxes, stamp taxes, nor¬ mal taxes, sur-taxes, excess profits taxes, beverage taxes, tobacco taxes, custom taxes, severance taxes, paving taxes, three mill taxes, excise taxes, corporation taxes, privilege taxes, franchise taxes, amusement taxes, road taxes, and so on down the line without end. And each year finds our Argus-eyed representatives searching with unwearied zeal and diabolical ingenuity for new and additional taxes and subjects of taxation. The citizen has been patient and long-suffering under it all, but the day is not far distant when he and his out¬ raged fellows will rise in all their might and power, and drive from the public temples and legislative halls those who have no true conception of the sanctity of the indi¬ vidual rights, but regard the citizen simply as a revenue producing goose. MORE LOCAL SELF-GOVERNMENT NEEDED. Another landmark, greatly venerated and respected by our forefathers, has been hammered and chiseled so much by law-makers that it can hardly be located at all. I re¬ fer to the principle of local self-government and home rule. In the old days of our forefathers, whom I believe were di¬ vinely inspired, and certainly who were thoughtful and ob¬ servant students of history, held that home rule was the only true safeguard for life and property. They held that the separate states of this Union should be sovereign, in¬ dependent and free to regulate their own internal affairs ( 8 ) according to the will of their own people, and to the main¬ tenance of this great principle they pledged their honor, devoted their lives and expended their fortunes. FEDERAL POWER EXTENDED TOO FAR. But that old-fashioned doctrine is fast fading away, and there has been a very distressing trend both in the or¬ ganic law and in legislation to take from “the people of the several states, and from their legislatures and courts, jurisdiction over the privileges and immunities of them¬ selves and their own citizens.” Today there is more and more centralization and the tendency is to give the Na¬ tional government almost unlimited authority and power to make laws. The authority of the states is being en¬ croached upon more and more, and National legislation has been very broadly extended for the purpose of promot¬ ing the general welfare. Additional authority has been delegated to Congress by recent constitutional amendments and the former grants have been liberally construed so as to extend legislation into new fields. “This,” as has been pointed out, “has run its course from the interstate com¬ merce act of the late 80’s, down to the maternity aid law which recently went into effect. Much of this has been accompanied by the establishment of various commissions and boards, often clothed with much delegated power, and providing those already in existence with new and addi¬ tional authority. The National Government has extended the scope of its legislation to include many kinds of reg¬ ulation, the determination of traffic rates, hours of labor, sumptuary laws, and into the domain of oversight of the public morals.” I regret to say that even in our own Southland, the home of history’s greatest soldier, who gave his all that the autonomy of the states might be preserved inviolate and home rule not perish from the land of our fathers, there are those who ridicule the ability and capacity of the citizenship of the state to mind their own local affairs without foreign guardianship or interference; who point to every illegal sale of intoxicants, every bum without power or desire to be sober, every failure of a state to confer universal suffrage, every bad road, every epidemic of dis¬ ease, as sufficient reasons for the practical abolition of the states and for the interference of the government at Wash¬ ington. ( 9 ) STRETCHES OF FEDERAL POWER. Senator Charles S. Thomas of Colorado, in a masterly address before the American Bar Association in 1921, pointed out these invasions of the state authority and stretches of Federal power, when he said: “To enumerate all legislative encroachments would be a difficult task. It will suffice to remind you that the federal government among other activities, through its multiplying bureaus and commissions, now exercises jur¬ isdiction over all the waters of the country, navigable or otherwise, determines the manner of their diversion and the development of their hydroelectric energies, largely controls all commerce within as among the states, regu¬ lar s business and manufacturing concerns, determines the age of workmen to be employed in manufacturing indus¬ tries, regulates their sanitation, has charge of the public health, directs the development of agriculture and the con¬ ditions of labor, undertakes to promote and if possible to create markets for farm products, limits or prohibits is¬ sues of securities by many private corporations and en¬ terprise creates private corporations by special enact¬ ment, has constructed and will eventually operate a vast merchant marine, has become the most extensive landlord in the world, prescribing its own laws for its tenantry, and wholly independent of the states wherein its domains are located, enforces public virtue by resolving prostitution in¬ to a subject of commerce, directs and finances the construc¬ tion of highways with no concern as to their utility for post roads, assumes to guard and enforce the morals and habits of the people, prescribes regulations for and im¬ poses licenses upon the medical profession, investigates and prescribes terms of adjustment of local industrial contro¬ versies, has assumed control over the functions of mater¬ nity, constantly encroaches upon the domain of the state police power, and has extended the jurisdiction of its courts over the entire domain of human controversy. It will soon assume the task of general education. “These and other innovations have been made upon the initiative or with the encouragement of the people. Their primary motive has been to limit commercial activities supposedly menacing the rights of the individual, to escape the burden of expense accompanying the exercise of state prerogatives or to promote the liberal local expenditure of federal money. Shirking responsibilities requiring outlay by ( 10 ) shifting both to broader shoulders, and obtaining public money for local consumption, have prompted states to sub¬ mit if not to welcome encroachments upon their powers, to neglect their duties and to ignore consequences. The fiction that the obligations will be cheerfully borne by the larger authority at its own expense, and that undue results will be carefully provided against by that authority is a pleasing one, but it betrays a declining estimate of the es¬ sential virtues of local self-government. Relief from civic responsibility weakens the spirit of loyalty to the home government, and tends to visualize it as subordinate to the greater one, functioning by its direction and acting by its authority. The fact that the cost of local administration is an ever-increasing quantity, reflected in the annual tax bill, notwithstanding the extension of federal activities, provokes angry remonstrance from the citizen but does not seem to arouse the need for his return to the old-fash¬ ioned policy of control and of close attention to home af¬ fairs. It rather stimulates him to greater activities for increasing appropriations by the powers at Washington. More roads, more policing, more sanitation, more exten¬ sions of authority and more money from the national gov¬ ernment accentuate his efforts, the states frequently join¬ ing in the clamor for much of the new legislation. When the citizen and his local government albeit unconsciously co-operate in urging the Congress to become the chief cus¬ todian of the sovereign power, their representatives heed the request and the work of centralization goes on. The states continue to function and will doubtless do so indef¬ initely. But their lines of distinction are becoming more illegible as Washington becomes more and more the uni¬ versal capital and county seat.” SOUND VIEWS OF PRESIDENT HARDING. While it may be little surprising, it is certainly pleasant to recall President Harding’s warning against centraliza¬ tion. He says: “We must combat the menace in the growing assump¬ tion that the State must support the people, for just gov¬ ernment is merely the guarantee to the people of the right and opportunity to support themselves. The one oustand- ing danger of today is the tendency to turn to Washington for the things which are the tasks of the duties of the forty-eight Commonwealths which constitute the United Sates.” (in If this Union is to be preserved the citizens of the re¬ spective states, states without which the Union could not exist, must stand up squarely and strike yeoman blows for the fanes of Democracy, for individual liberty, for local self-government and for home rule. GOVERNMENT INTERFERES WITH PRIVATE RIGHTS. Another great principle which our forefathers laid down for the welfare and happiness of the Nation was that the government should not interfere with the citizen in the management of his private and domestic affairs. They held that there were limits to the authority of the government in dealing with the citizen and that there was a line over which governmental authority should not intrude. They said that there were fields of business and of private con¬ duct which were clearly and unmistakably beyond the in¬ fluence of legislation, and to which neither the police power of the state nor the nation could be rightfully ex¬ tended. They did not deny that a state mig’ht enact all needful legislation to preserve the public order, morals, health and safety, but they did most solemnly affirm that there were constitutional rights which could not be in¬ vaded by the government, and they held that the legisla¬ ture might not under the guise of protecting the public intersts, arbitrarily interfere with private business or im¬ pose unusual and unnecessary restrictions upon personal habits and lawful occupations. WHAT CITIZEN MAY EXPECT OF GOVERNMENT. Let us consider for a moment some of the things that the citizen may justly look to the government to do for him. He has a right to expect the government to se¬ cure him equality of opportunity, to protect him in the enjoyment of the fruit of his labor, to maintain law and order and to see that justice is done to all. We can look to our government to give the citizens a fair and full opportunity in the race of life, but, of course, we must not expect the government to do for the citizen what he should do for himself and be the happier and better for doing. It is equally as true that the citizen has no right whatever to expect the government “to act as his guardian and to require it to assume his responsibilities and obliga¬ tions, correct his misfortunes, discharge his dutes, cancel ( 12 ) his debts, supply his needs and guarantee the success of his business pursuits.” While the government may rightfully exercise certain functions of supervision and regulation over the business of the country, yet the government must not hamper the growth and prosperity of business. The government may rightfully demand full publicity, it may rightly prevent unfair trade practices, and it has the right to prevent in¬ justice, but “its functions of regulation and supervision do not properly extend to the imposition of the business dis¬ cretion of government officials against the judgment of those experienced in the business.” Our system of gov¬ ernment was established in order that the merchant and manufacturer, the mechanic and the laborer, might each be left to pursue and provide for his own interests in his own way, untrammeled by burdensome and unnecessary legislative restrictions. Much of the legislation of re¬ cent years is Socialistic, and if continued will destroy the American ideal of personal liberty. GOVERNMENTAL INTERFERENCE WITH BUSINESS The Government is now poking its nose and reaching its long arm so extensively into the private business opera¬ tions of individuals that initiative is being paralyzed and progress impeded. One prominent Montgomery business man told me only a few days ago that because of the many burdensome laws and bureaucratic regulations affecting his line of business he was compelled to employ an extra bookkeeper and use his entire time in meeting the re¬ quirements of the Government. Another told me that the Government has interfered so much with his business and has given him so many instructions as to running it, that he had reached the point where he would gladly turn his business over to the Government in return for a pension of $50 a year. Another told me that he looked anxiously at every stranger who came into his store fearing that he might be some officious government agent with tidings of additional laws and regulations and desiring to peep further into his private affairs. Certainly the time has come to put a stop to all unneces¬ sary and harmful governmental interference with the pri¬ vate affairs of the citizen. He must have some relief, and unless it comes soon the country will suffer a depres¬ sion long to be remembered. ( 13 ) OLD FASHIONED CUSTOMS OUT OF STYLE While I have called your attention seriously to the ap¬ proaching destruction of certain venerable landmarks in our government, I do not forget that there are other land¬ marks of less consequence which are also being destroyed. And if in lighter vein I should mention a few of them, I ask your indulgence. We are getting away from a great many old-fashioned customs. In the old days people “went in washing/’ No¬ body would think of doing this nowa-days because every body “goes in bathing.” The old-time swimming hole with its shady banks, snags, frogs and muddy water, where we jumped in as nature made us, does not appeal any long¬ er. To properly enjoy ourselves, we must go to some fashionable swimming pool, lined wtih white tile and marble, where the water has been chlorinated by experts and examined hourly by bacteriologists, where life-pre¬ servers are handy, and where each swimmer must be sprinkled with the perfumes of Arabia before entering the pool. We do not hear much of “breeches” today, either, but all males wear “trousers”, and instead of keeping them neatly pressed by insertion between the mattress and springs at bedtime, they must be sent to a pressing club for scientific steaming and to get the creases mathematically straight. We also miss the “gallus” which was superseded by the “suspender” and we realize that the latter will soon give way to the belt. That old-fashioned meal, “supper,” which we enjoyed so much when we were boys, is almost a thing of the past. “Lunch” has taken the place of dinner, and dinner has replaced supper. Only old fogies have “supper” nowadays. Take for instance the service for the solemnization of matrimony. A good many of our splendid women, forget¬ ting what St. Paul said and not having a proper concep¬ tion of wifely obedience, do not like to be asked “to obey,” and flatly decline to do so. The men are bearing up under this very well, though a great many of the men are re¬ taliating and, in the marriage ceremony, are declining to “endow” their wives with all their ^worldly goods.” and hence these two ancient expressions are seldom heard now. In the old days when a young man went courting he first ascertained if it was agreeable for him to pay his ad¬ dresses to the young lady of the house. If it was all right ( 14 ) he would drive up to his sweetheart’s mansion in a digni¬ fied phaeton drawn by a thoroughbred, tie his horse to a hitching post, walk quietly in, remove his hat and pati¬ ently wait an hour or two while his love dressed. Nowa¬ days all that is quite different: the modern gallant cranks up father’s ‘lizzie,’ hits it up about 50 miles an hour, drives up in front of his lover’s bungalow with much screeching of brakes and rattling of tin fenders, keeps his seat, blows the horn violently four or five times, and gets out of pa¬ tience if the fair Juliet fails to rush out at once. In music there has also been a marked change. We no longer gather around the family piano or organ and sing the sweet songs of old. Annie Laurie, Sweet Alice Ben Bolt, Old Folks at Home, Juanita, Old Black Joe, When You and I Were Young Maggie, and the Last Rose of Summer, are rarely heard nowa-days except as a begrudg¬ ed encore. The music that delighted our fathers has given way to tunes more pleasing to the modern ear and we now have the Teddy Bear Blues, Hot Lips, Apple Sauce, Mister Gallagher, Li’l Liza Jane, Kitten on the Keys, I’ll See You in Cuba, Cuddle Up Blues, and so on. If poor old Terpsichore could stop eating ambrosia and nectar for a few minutes and look down on us from Olym¬ pus she would be quite surprised at our modern dance steps. The stately minuet, the graceful waltz, the polka, the scottische, the reel, the quadrille, and the horn pipe have all been out-lawed by polite society, though the waltz is making a feeble struggle for life. Any one who would be bold enough today to attempt any of these old-fashioned dances on a modern ball room floor would probably be re¬ quested to “get out of the way” or “to speed ’er up,” and if he persisted would doubtless be the laughing-stock of the evening. These fine old steps, which were really dances of beauty and grace, have disappeared and in their place we have the one-step, the tango, the toddle, the Boston, the fox-trot, the bunny-hug and such like, and unless one is quite well acquainted with these modern steps she may expect a glorious time as a wall-flower. DOES NOT CONDEMN ALL CHANGES If time permitted I could tell you of other marked changes in literature, in art, in commerce and in the social life, all “illustrating a general revolt against the authority of the past,” but what is true of the subjects I have touched upon is also true of the latter things. (15) Of course, I do not condemn all these changes which I have mentioned in lighter vein, for we can not expect, either in government or social life, that the ideals and pleas¬ ure of the past shall suit us today and fit in with our ever- changing and complex civilization. ANCIENT LANDMARKS MUST STILL GUIDE But presumptively the lessons of the past are true, and as we move forward into the future to that better day yet to dawn for men and nations, let us look now and then to the “ancient landmarks” of our fathers with gratitude and thanksgiving that they yet stand to guide us on the true course. ( 16 )