​The Nature of American Liberty

From PREJUDICES: THIRD SERIES, Henry Louis Mencken, 1922, pp. 193–200.
First printed in Issues of Today, March 11, 1922

LET US suppose that you are a peaceful citizen on your way home from your place of employment. A police sergeant, detecting you in the crowd, approaches you, lays his hand on your collar, and informs you that you are under arrest for killing a trolley conductor in Altoona, Pa. Amazed by the accusation, you decide hastily that the officer has lost his wits, and take to your heels. He pursues you. You continue to run. He draws his revolver and fires at you. He misses you. He fires again and fetches you in the leg. You fall and he is upon you.

You prepare to resist his apparently maniacal assault. He beats you into insensibility with his espantoon, and drags you to the patrol box. Arrived at the watch house you are locked in a room with five detectives, and for six hours they question you with subtle art. You grow angry—perhaps robbed of your customary politeness by the throbbing in your head and leg—and answer tartly. They knock you down. Having failed to wring a confession from you, they lock you in a cell, and leave you there all night. The next day you are taken to police headquarters, your photograph is made for the Rogues’ Gallery, and a print is duly deposited in the section labeled “Murderers.” You are then carted to jail and locked up again. There you remain until the trolley conductor’s wife comes down from Altoona to identify you. She astonishes the police by saying that you are not the man. The actual murderer, it appears, was an Italian. After holding you a day or two longer, to audit your income tax returns and investigate the pre-marital chastity of your wife, they let you go.

You are naturally somewhat irritated by your experience and perhaps your wife urges you to seek redress. Well, what are your remedies? If you are a firebrand, you reach out absurdly for those of a preposterous nature: the instant jailing of the sergeant, the dismissal of the police Commissioner. But if you are a 100% American and respect the laws and institutions of your country, you send for your solicitor—and at once he shows you just how far your rights go, and where they end. You cannot cause the arrest of the sergeant, for you resisted him when he attempted to arrest you, and when you resisted him he acquired an instant right to take you by force. You cannot proceed against him for accusing you falsely, for he has a right to make summary arrests for felony, and the courts have many times decided that a public officer, so long as he cannot be charged with corruption or malice, is not liable for errors of judgment made in the execution of his sworn duty. You cannot get the detectives on the mat, for when they questioned you you were a prisoner accused of murder, and it was their duty and their right to do so. You cannot sue the turnkey at the watch house or the warden at the jail for locking you up, for they received your body, as the law says, in a lawful and regular manner, and would have been liable to penalty if they had turned you loose.

But have you no redress whatever, no rights at all? Certainly you have a right, and the courts have jealously guarded it. You have a clear right, guaranteed to you under the Constitution, to go into a court of equity and apply for a mandamus requiring the police to cease forthwith to expose your portrait in the Rogues’ Gallery among the murderers. This is your inalienable right, and no man or men on earth can take it away from you. You cannot prevent them cherishing your portrait in their secret files, but you can get an order commanding them to refrain forever from exposing it to the gaze of idle visitors, and if you can introduce yourself unseen into their studio and prove that they disregard that order, you can have them hailed into court for contempt and fined by the learned judge.

Thus the law, statute, common and case, (OSTENSIBLY) protects the free American against injustice.

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