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LEGISLATIVE INDEMNITY FOR LOSSES FROM MOBS - William Leggett, Democratick Editorials: Essays in Jacksonian Political Economy 
Democratic Editorials: Essays in Jacksonian Political Economy, Foreword by Lawrence H. White (Indianapolis: Liberty Fund, 1984).
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LEGISLATIVE INDEMNITY FOR LOSSES FROM MOBS
March 4, 1837.
The late disgraceful riot in this city has been followed by its natural consequence: impaired confidence in the security of private right in this community. Persons at a distance, having commercial relations with us, are fearful of trusting their property within the reach of men, who have shown themselves so regardless of the first principles of social order, and so little apprehensive of municipal opposition. The owners of flour and grain, in particular, and of other articles of such universal daily consumption as to be classed among the necessaries of life, hesitate to send them to a city where they may be seized, on their arrival, by an infuriated mob, and scattered to the winds of heaven. The result of this must inevitably be an exacerbation of the misery which the poor now experience. Prices, exorbitant as they are, must rise to a still higher pitch, as the supply, receiving no augmentations from abroad, becomes less and less adequate to the demand. And those miserable creatures, who, in their delusion, thought to overthrow the immutable laws of trade, and effect, by a sudden outbreak of tumultuary violence, what no force of compulsion, however organised and obstinate, could possibly accomplish, will be among the very first to reap the fruit of their folly: for, as they are among the very poorest members of the community, any additional advance in the price of flour must put it wholly beyond their means. Thus even handed justice commends to their own lips the chalice they had drugged for others.
One of the evidences of the consternation which the recent tumult has occasioned in the minds of persons having commercial dealings with this city, particularly in articles of necessary food, is shown in the terms of a memorial which the manufacturers of flour in Rochester have addressed to the Legislature, praying for the enactment of a law to protect their property in New-York from the destroying fury of mobs.
. . .
The foregoing memorial is signed by eighteen flour manufacturing firms of Rochester. The trepidation and anxiety which it betrays on the part of all concerned in the flour trade of that city, may serve to show what must be the general feeling throughout the country, and what must be its necessary consequence in withholding from us a further supply of flour, thus inevitably increasing the burden of which we now complain. But while we copy this memorial, for the lesson it furnishes to those who seek to reform legislative abuses, or to relieve themselves from oppressive burdens, by tumultuary violence, we must not suffer it to be inferred that we approve the object of its prayer.
The power which the legislature is asked to exercise seems to us to lie beyond the proper province of government. The legitimate functions of a democratic government are simply to protect the citizens in life and property, not to provide indemnification for the loss of either. The government is the mere representative or agent of the community, appointed to guard the rights of each individual, by protecting him from the aggressions of others. This duty includes the defending of him from aggression, in the first place, and the punishing of those who commit it, in the second. But it does not extend to the punishment of an entire community for the offences committed by an inconsiderable portion, which is the position assumed by the Rochester petitioners. It is one of the first and most obvious duties of society, in the outset of its political organization, to make provision for the defence of the rights of its members, in whatever form of violence they may be assailed. The legislative agents of each community, in the discharge of this duty, make such provisions, as the general circumstances of the times, and the particular circumstances which lie within their own jurisdiction, may seem to require. Thus, while in thinly inhabited townships a few guardians of the peace, clothed with the simplest powers, are sufficient, in cities an extensive and complicated system of defence is found to be necessary. Guardians of the night, and guardians of the day, an organized force to protect property from conflagration, and an armed force to protect both life and property from riot and insurrection, are necessary in every populous town, requiring to be extended and modified, according to the increase of numbers, or the deterioration of morals. The principle of self-preservation gives rise to these precautionary and defensive measures, in the first place, and the same principle, ever active, demands that they shall be enlarged and improved, from time to time, as new exigencies arise. If anything occurs to show that the municipal authorities of any community are deficient in requisite vigilance, energy, or power, their deficiency is a proper subject of complaint; and all who are aggrieved, whose rights are in any way invaded or jeoparded through such remissness, have unquestionable ground of petition or remonstrance to a higher legislative tribunal. But no tribunal in this country, under the maxims which we acknowledge as the foundation of our political edifice, has the power to inflict the penalties incurred by a few ruffians, concerned in a violation of private right, on those who not only had no share in the offence, but who perhaps exerted themselves to the utmost to prevent it. This would be in dereliction of the plainest principles of natural justice.
Let us suppose a case. A person, residing at the Battery, by some unguarded speech or action, gives offence to a particular class of persons living in his immediate neighborhood. The cause of umbrage is reported from one to another, with the natural exaggerations of anger. Bad passions are aroused, and some inflammatory demagogue seizes the occasion—perhaps for the gratification of private malice, or perhaps for the opportunity of plunder—to excite the irritated multitude to acts of violence. They rush to the house of the unconscious offender. Their numbers are rapidly augmented by additions from the crowd of such persons as are ever ready to take part in tumult. Their shouts and cries, echoed from one to another, are as fuel to fire, and increase the fury of their exasperation. They attack the property of him who is the object of their ire, demolish his store-house or dwelling, break its contents into fragments, and scatter them in the streets, or consume them in flames. In the meanwhile the public authorities, informed of the tumult, hasten to the scene. They are joined by numerous bodies of good citizens, desirous to aid them in the suppression of disorder; and, in a little while, but not before the work of destruction is completed, the riot is suppressed, and the chief actors in it apprehended, and committed to safe custody for trial and punishment. But this whole event, from first to last, has occurred, before the tidings can reach other extremes of the metropolis. The citizen at Bloomingdale or Harlem is quietly pursuing his vocation, unconscious of the disorders which disturb the community at another point of the city. Yet the legislation asked for by the petitioners of Rochester would make him responsible for the crimes of others, with which he not only had no participation, but which, could he have known they were meditated, he would have exerted himself with the utmost zeal and diligence to prevent. He would have done so, not only from a sentiment of philanthropy, but from a motive of self-preservation; as one whose individual rights were exposed to similar hazard; as a portion of the body politic, which must always suffer, when it shows itself incompetent to protect its individual members from outrage.
The principle involved in this Rochester memorial might, with equal propriety, be extended to embrace indemnity for losses sustained in consequence of individual outrages. It is no less the duty of a community to protect the property of citizens from the attacks of single ruffians, than from those of ruffians in numbers. If the flour manufacturers of Rochester had visited this city to receive payment from their agent whose store-house was attacked, and if the wretch, who directed the attention of an excited multitude to that store-house, had, instead, chosen to waylay those manufacturers singly, and, assailing them with a bludgeon, forced them to surrender the proceeds of their merchandise, it seems to us that they would have equal ground for a petition to the legislature, asking for a law to compel the city of New-York to indemnify them for the amount of which they had been robbed. The principle of indemnity is not included in the principle of protection. Protection is an obvious duty of humanity, as well as an obvious measure of self-preservation; but the claim for indemnification as obviously rests on the unjust and arbitrary principle that the good should be punished for the crimes of the bad, and the weak for the outrages of the strong. Is there any reason, in natural justice, that the lone widow, frugally living, in some obscure corner of this city, on the slender means picked up by perpetual industry, should be burdened with a tax to compensate the flour merchant of Rochester for his losses from an outrage of which she could have had no knowledge, and over which she could exercise no control? Is there any reason why any person in this city, not implicated in the transaction, should be punished in the way proposed, that does not apply as strongly to every inhabitant of the state? If this community, in its corporate capacity did not exercise due vigilance and energy to prevent the riot in question, and protect the property destroyed, it may be that there is good ground for an action for damages; but there is surely none for a law to punish the entire community in all cases, whether the outrage was within or beyond municipal control.
The principles which should guide legislation are always reducible to the simplest elements of natural justice. The code for the government of a community of three hundred thousand persons should stand on the same basis of clear undeniable right, with that which would be instituted for a community of only three. If A, B, and C, enter into a social compact, A is clearly bound to assist B, against any violation of his rights attempted by C. But if before A can render assistance, or in spite of it, C succeeds in rifling the property of B, and escapes with it, or destroys it, any claim which might then be set up by B, for indemnity from A, would be so clearly without foundation in justice, as to shock the natural moral sense of all the rest of the alphabet, supposing them living by themselves, in an entirely distinct community.
The Journal of Commerce, we perceive, expresses approbation of the object of the memorial we have copied. It pronounces the plan “a good one,” and thinks “it should be made general, applying to all property, and to all the cities and towns in the state.” We cannot think the Journal of Commerce has given its usual attention to this subject; though this is not the first time it has shown a willingness to strengthen government at the expense of men’s equal and inalienable rights.