ARTICLE

Our Inalienable Rights

DECEMBER 01, 1969 by PARK CHAMBERLAIN

Mr. Chamberlain is an attorney in Los Altos, California.

Should government be limited in their defense?

In November of 1965, in the State of New York, a man named Adri­an Cancil was sentenced to three years in prison for a crime which he did not commit. Pending ap­peal, he was released on a so-called certificate of reasonable doubt. He put his free time to advantage by discovering the name of the guilty party, whereupon he bought a tape recorder and con­cealed it in his clothing. Then he found and engaged the guilty one in conversation, inveigled him into admitting his guilt, took the taped admissions to the district attorney, and won back his free­dom.

A heart-warming story of a tri­umph for the rights of the indi­vidual, is it not? Or is it? Or is it actually a story of a serious crime perpetrated by Adrian Can­cil against a fellow citizen? In the eyes of the State of California, for example, it was the latter. In 1967, in fact, the legislature of that state (cheered on by the American Civil Liberties Union) passed a law condemning actions such as that of Adrian as crimi­nal, and punishing them with a three years’ prison sentence and a fine of $2,500!

The reader of THE FREEMAN will immediately see the philosophical question involved, which is this:

To what extent should govern­ment interfere with a citizen’s rights to clear himself of a charge of crime?

To find the answer, let us re­state the principles underlying our American political philosophy, namely, first, that every citizen is endowed with inalienable rights to his life and liberty, and second, that it is the prime duty of gov­ernment to preserve these rights. Reasoning from these premises, can we avoid the conclusion that any governmental restraints upon the citizen in this area should be minimal indeed, and, in fact, that here is an area wherein govern­ment should itself take positive action, and with the most efficient weapons?

It must be agreed, of course, that Adrian Cancil should not have been allowed to take violent action to prove his innocence —such as, for example, a physical assault upon the guilty man. But why should he be forbidden to do what he did? Had he merely sur­reptitiously memorized the guilty man’s statement and reported it to the district attorney, he would have committed no crime any­where—but the district attorney most likely would not have be­lieved him and he would have served out his wrongful sentence. But because he surreptitiously tape-recorded the statement, he committed an action so fiendish that in the eyes of the State of California, at least, and perhaps in those of some other states, he would have deserved an additional three years in jail!

And so let us suppose that Adri­an had been sentenced wrongfully not in New York but in Califor­nia, and that while awaiting the result of his appeal he had con­sulted his district attorney with respect to his plans to clear him­self by use of the tape-recorder. That official must, of course, have warned him that any such activi­ties would be criminal. Suppose, then, that Adrian had urged that a plain clothes policeman be di­rected to don the recorder and get the evidence. In all probability (although the California law is not perfectly clear) the district attorney must have advised Adri­an that that too would be illegal! And so this innocent man would have been totally deprived of any use of this excellent weapon for the preservation of his basic rights!

Strange as it seems, there are those who warmly approve of Adrian Cancil’s frustration, who would zealously ban the use of such electronic devices by any­one, private or public, for any purpose whatsoever. The Ameri­can Civil Liberties Union has in fact commenced legal action to have their use declared completely unconstitutional. The success of this suit would mean not only that government should forbid us the use of weapons most effective in preserving our lives and liber­ties, but also that government it­self would not be able to defend our rights by such means. Or, to put it in general philosophical terms, the outlawing of such de­vices would mean that govern­ment would be encouraged to enter an area where its activity should be minimal, and at the same time reduced in efficiency in the area where its activities should be maximal.