THE Empire State, not certain that the teeth of the Volstead Act were biting it hard enough decided on April 4, 1921, that it would pass what is known to the man in the street as the Mullan-Gage Law. It begins as follows:  
“Sec. 1. The penal law is hereby amended by inserting therein a new article, to be article one hundred and thirteen.”
It goes on to say: “The possession of liquors by any person not legally permitted under this article to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this article; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used.”
As every one knows, in ordinary cases a defendant is considered innocent until proved guilty. But here we see a dangerous reversal of that idea in jurisprudence. Anyone carrying a flask would be considered, in the eyes of this law, a bootlegger, a purveyor of illegal goods—in fact, a criminal even though no evidence had been produced to prove him121 so. In our anxiety to purify the nation, we have distorted old established laws, turned reasoning topsy-turvy, and once more made ourselves ridiculous—in the Empire State at least.
“Of making many laws there is no end,” one might paraphrase Ecclesiastes. In his remarkably interesting book, “Our Changing Constitution,” Charles W. Pierson points out the growing dangers which confront us, because of our repeated amendments and addenda. He sounds many a warning, and every American should read his brief but profound volume.
“Whatever view one may hold to-day,” he writes, “as to the question of expediency, no thoughtful mind can escape the conclusion that, in a very real and practical sense, the Constitution has changed. In a way change is inevitable to adapt it to the conditions of the new age. There is danger, however, that in the process of change something may be lost; that present-day impatience to obtain desired results by the shortest and most effective method may lead to the sacrifice of a principle of vast importance.
“The men who framed the Constitution were well advised when they sought to preserve the integrity of the states as a barrier against the aggressions and tyranny of the majority acting through a centralized power. The words ‘state sovereignty’ acquired an odious significance in the days of our civil struggle, but the idea for which they stand is nevertheless a precious one and represents what is probably America’s most valuable contribution to the science of government.
“We shall do well not to forget the words of that staunch upholder of national power and authority, Salmon P. Chase,122 speaking as Chief Justice of the Supreme Court in a famous case growing out of the Civil War:
“‘The preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the union and the maintenance of the National Government. The Constitution in all its provisions, looks to an indestructible union composed of indestructible states.’”
Yet today what do we find? The States renouncing their sovereignty, abrogating their authority to the central government, time and again diminishing their own strength, losing sight of one of the very things on which the safety of our country depends. Worse than that, some of them have attempted to pass laws which seem totally unnecessary, in the light of the already rigid Volstead Act. Witness the State of New Jersey, for instance, with the iniquitous Van Ness Act, which, fortunately, was deemed unconstitutional.
Early in 1921, Mrs. Frank W. Van Ness, while a member of the New Jersey Assembly from Essex County, of which Newark is the county seat, introduced the act which provided that “whenever a complaint is made before any magistrate that a person has violated one or more of the provisions of this act, it shall be the duty of such magistrate, and every such magistrate is hereby given full power and authority to issue his warrant to arrest any such person so complained against, and, summarily, without a jury and without any pleadings, to try the person123 so arrested and brought before him and to determine and adjudge his guilt or innocence.”
The Volstead Act plainly states that anyone violating the provisions of that act is guilty of a crime. Mrs. Van Ness’s Act was an attempt to have such persons, in the State of New Jersey, guilty of disorderly conduct, which would not require a trial by jury.
The New Jersey Legislature passed the Van Ness Act, and other State prohibition laws, at its session of 1921; but on February 2, 1922, the Court of Errors and Appeals of New Jersey held that a number of the provisions of the Van Ness Act were unconstitutional. The prevailing opinion was written by Chancellor Walker, but there was a difference among the judges as to the constitutionality of some of the different provisions of the act, and other opinions were also written. The Court of Errors and Appeals is the Court of last resort in New Jersey, and by its judgment it reversed the Supreme Court finding which had theretofore held the Van Ness Act to be constitutional.
Mrs. Van Ness was a candidate for re?lection in the fall of 1921, but was not re?lected. Is there no significance in this fact?
As old as Magna Charta is the right of any citizen to a trial by jury, when convicted of a crime; and as old, too, as that sacred document, is the theory that one is innocent until proved guilty. Yet the Volstead Act has paved the way for politicians124 without vision to seek to destroy these inalienable rights.
“Where there is no vision, the people perish.”
Among other things, in the opinion handed down in 1922, Chancellor Walker wrote:
“The act entitled ‘An act concerning intoxicating liquors used or to be used for beverage purposes,’ passed March 29, 1921, the short title of which is ‘Prohibition Enforcement Act,’ commonly called the Van Ness Act, authorizing convictions for violation of its provisions by magistrates without trial by jury, violates Article 1, Sec. 7, of the Constitution of New Jersey, 1844, which provides, inter alia, that............