Popular Science Monthly/Volume 26/April 1885/Liquor Legislation

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DURING the past eight years as a magistrate with criminal jurisdiction in a town of about four thousand inhabitants, in Western Massachusetts, I have disposed of about five hundred cases of drunkenness, and numerous cases of common drunkards, brought before me on complaint. The proceedings have not been mere routine, as, of necessity, they usually are in such cases in the large cities, where the judge sits back in his chair until the list of the morning's "drunks" has been finished by the clerk, who calls name after name, with the formula, "John Smith, you are complained of for being drunk yesterday. What do you say to this complaint, are you guilty or not guilty? You are sentenced to pay a fine of one dollar and costs, and to stand committed to the House of Industry for ten days, or till the same is paid"; and who begins to write the memorandum of the sentence as soon as he calls the name, and scarcely pauses for the plea of guilty. In the cases coming before me I usually have from the officer making the arrest some description of the circumstances under which it has been made, while in the cases of common drunkards I usually know something of the history of the defendant. In cases of simple drunkenness, the law being the same, I usually end with a sentence like that given above, though occasionally I adjourn a case for sentence, and give the defendant a chance to raise or earn the money, and pay the fine on a subsequent day. The case of a common drunkard is not so easy to dispose of, for, in the first place, he is liable to a severer punishment, then he is usually a resident of the town, I know all about him and his family, if he has one, and there is a sort of an acquaintance between us on account of his having been before me on numerous occasions for simple drunkenness. Moreover, he has just been on a spree, and is in a condition of reaction, confident that he will never desire to drink intoxicating liquor again, and full of good resolutions. All this leads to an appeal for a chance to show that he is a reformed man, to promises that he will never give occasion to be arrested again, and to offers to take the pledge, and usually ends with the sentence being postponed for a week or two—then for a month, and then indefinitely, after which he is arrested a number of times for drunkenness, and, the patience of officers and magistrate becoming worn out, the complaint for being a common drunkard is revived, he is sentenced and appeals, counsel is employed, and his case drags along in the superior court.

The law as to drunkenness and common drunkards, as it now stands, can not be administered with any satisfaction. The imposition of a fine in such cases is a punishment whose burden, if the fine is paid, is borne by the family of the drunkard, whose condition, already wretched enough on account of the vice to which he is addicted, is thus made still more deplorable. Imprisonment for a first offense is not permitted, and in any case seems a punishment disproportioned to an offense in the commission of which the defendant has done himself more harm than he has the public; and this is especially true when the arrest has been made, as frequently happens in the winter, out of pure compassion, to save the defendant from injurious exposure to the cold. Besides, short sentence to imprisonment can be no satisfactory offset to the expense already incurred in the arrest, for, as a prisoner on short sentence, the convict becomes the occasion of an additional item of expenditure. To discharge him without sentence is the only other course open, and this it is useless to discuss if it is to be admitted that an arrest should be made at all.

The experience gained from the cases mentioned, although they have not been exceedingly numerous, has yet been sufficient to teach me some facts, and to occasion a good deal of thought on the matter of temperance legislation. I have noticed that the number of arrests for drunkenness has not varied with the number of places open for the sale of intoxicants. In fact, in one year, when no licenses for their sale were granted in our town, the arrests were unusually numerous, and this was due to the fact that there were a large number of imported laborers employed in certain railroad-work in the neighborhood, and that from among them the "drunks" were furnished. From this it would seem that the habits of the community have more to do with the consumption of intoxicants than the number of places of sale. The nationality of the persons arrested looks in the same direction The simple "drunks" have been for the most part Irish; the common drunkards, American, who have been almost exclusively permanent residents, perfectly well known to the overseers of the poor, the peace officers, and the magistrates. I can not recall that a German has ever been before me for either offense, and this although there is a large German population in the village where I reside. From all the foregoing I come to the conclusion that the present license law in Massachusetts does not, and that the prohibitory law when in existence did not, affect the drinking habits of more than a very small portion of the community. The question is, What legislation is necessary or desirable under these circumstances?

The unusual characteristics of the presidential election of 1884 have thrown into peculiar prominence a movement to make prohibition of the traffic in intoxicating liquors a national issue. The object of this movement is to get incorporated into the fundamental law of the Federal Union, by way of constitutional amendment, a provision for such prohibition or requiring such prohibition by the States. To one who has made even a superficial study of the Constitution of the United States this must seem a wide departure from the spirit in which that instrument was framed. It proceeds upon the claim that any use of intoxicating liquors as a beverage is injurious to the user, a claim not yet proved, and certainly not yet by any means admitted, and that whatever is injurious to an individual, if it in any way affects the public injuriously, may be prevented, not by direct punishment of the offender, but indirectly by a sweeping prohibition forbidding all persons to furnish the means of committing the offense. If such law-making can be defended at all, it can be only as the making of police regulations, for which the frame of government of a federation of States seems a very curious place. Amendments or provisions of the Constitutions of the several States are equally objectionable on considerations of sound legislation. The great mistake made by temperance agitators who favor prohibition is that they expect too much from the mere passage of laws. They know that in our highly civilized, orderly, and law abiding communities there are laws for the punishment of all the grave offenses, such as murder, arson, burglary, and the like, and against almost innumerable misdemeanors and petty offenses; they see that offenses against such laws are not of frequent occurrence, and by hasty generalization, and usually without experience in the workings of the law, they draw the conclusion that the passage of a law making a certain act an offense and forbidding it has a potent effect in preventing it. In spite, however, of all the experiments that have been tried in legislating on the sale of intoxicating liquors, and varied and numerous statutes on the subject, the evil aimed at still exists. Hasty reasoning from this state of facts leads to the conclusion that it is not the law that is in fault, but the method of its enactment. Our prohibitionist friends know that there are no departures to a noticeable extent from the provisions of the Constitution of the United States and of the several States, and conclude that if they can get the enactment they desire into the Constitution it will have an effect that it can not have while only existing in the form of a statute. The real reason that there are violations of statutes and not of the provisions of Constitutions is that statutes and Constitutions deal with, and are intended to deal with, different kinds of law. The Constitution in general terms provides the frame of government for the State, distributes the legislative, judicial, and executive functions, and sets forth the powers of the Legislature, the courts, the Governor, and his associates; while statutes are enacted to fill in the details not covered by the Constitution, to erect and prescribe the powers of municipal, religious, charitable and other corporations, to regulate the relations of individuals to one another, the making of contracts, the settlement of estates, and the like, and to provide for the punishment of offenses against the community. A statute has the same force and effect while it exists that a provision of the Constitution has. It is easy to be understood that a constitutional provision for the punishment of murder would not be in the least more likely to prevent the commission of that crime than a statute to the same effect. How, then, can it be expected that the recent adoption of a constitutional amendment in Maine is going to have any effect in the prevention of the sale of intoxicating liquors? Such sale has been forbidden in that State for more than thirty years. Prohibition has been the law of the State for all that time just as much as it will be now, and, if it has failed in the past to produce the result intended, so will it in the future.

I have said that offenses against the law are not of frequent occurrence, and of course that is to say in comparison with the ordinary events of life. Not one man in a hundred, probably, has even violated the provisions of the law as to the sale of intoxicating liquor. But violations of the law are more frequent in some communities than in others. The same law against murder prevails throughout the city of New York, for instance, but in certain parts of that city murder is of common occurrence when compared with other parts. The law forbids murder in all the Southern States, yet certain kinds of murder, by comparison with the Northern States, are of frequent occurrence there and go unpunished; and this is true to such an extent as to be an occasion of reproach to the condition of public sentiment there. Dueling was forbidden and punishable for many years before public sentiment was such as to permit the enforcement of the law. Now the statutes against dueling have become of little consequence, because public opinion about dueling is a sufficient law. Laws do not make people virtuous, honest, or temperate, by their mere passage. When laws punishing crime, fraud, and intemperance are enforced, they do have an influence in their prevention. But for the enforcement of the law we need not only persons ready to set prosecutions on foot and officers ready to serve warrants of arrest, but we need also courts and juries ready to convict on sufficient evidence, and witnesses willing to testify. For all these we must have an overwhelming public sentiment in favor of the law, and this is true not only of large communities like States and counties, but of small communities like villages and hamlets. Neither murder nor any other crime can be punished if those who have knowledge of the facts connected with it will not tell what they know. This is especially true of any class of crimes in which all the participants are held equally guilty; in illustration of which is the notorious difficulty of obtaining convictions for offenses against the laws as to the relations of the sexes. It is also true of offenses against the laws now under consideration, not because both parties to a sale of intoxicating liquor are held equally guilty, but because both are participants in the act which constitutes the offense, and all manly feeling, of which even drunkards have a little, revolts at testifying in such a case.

But even with public sentiment in favor of the enforcement of prohibitory laws, they have no such influence as persuasion and education. Another mistake made by temperance agitators, and one which follows from that previously mentioned, is that they do not pursue methods calculated to bring them in contact with the persons whom they seek to benefit. If there were no liquor-buyers, there could be no liquor sellers. So long as there are persons disposed to be liquor-buyers, there will be liquor-sellers, in spite of all the statutes and constitutional provisions that ever have been or ever can be enacted. The liquor crusade (I intend to use the word in no offensive sense) is now directed toward the overthrow of the liquor-seller, and not to the rescue of the liquor-buyer. I could greatly regard and admire the temperance missionary who should seek out the drunkard at his home or in the grogshop, and endeavor to persuade him of the evil of his ways, of his power to reform, and of his capacity to become a respectable, respected, and useful member of society, and who makes the attempt to find such objects of interest for him as will make his home or some lounging-place as attractive to him as the grog-shop. Such missionaries are scarce, however. The usual temperance work consists in occasionally getting up meetings which respectable people, not drunkards, are solicited to attend, and at which some one holds forth on the evils of intemperance (which all are ready to admit), and dwells on the necessity for further legislation or a constitutional amendment. Not a suggestion is made that it is desirable to organize committees to solicit funds to pay for the time and services of such a missionary as aforesaid, or committees to aid him in such work. If by any chance the meeting is not devoted to a consideration of the law, and an effort has been made, or is made, to get hold of the drunkards and reform them, they are more than as likely as not to be put forward at once on their profession of reform, to tell how drunk they used to get, and to abuse persons who do not join the movement, do not believe in prohibition, and have never been drunk. Temperance work comes, too, in waves like our "cold snaps," and, after a season of intense excitement, dies away, leaving to be sure a residuum of good, but also furnishing a majority of backsliders among the reformed, to the regret of the judicious and the delight of the scoffers. What is needed is not more but different law, and sustained and unobtrusive, not spasmodic and demonstrative effort for the reform and rehabilitation of drunkards. When the history of temperance reform for the last fifty years is considered, the progress made seems astounding; but it must be remembered that the greater advance by far was made before and not since the enactment of prohibitory laws, and by persuasion, not by force.

Before going further I wish to say that I yield to no one in my appreciation of the fact that crime, wretchedness, poverty, and squalor, inevitably follow the excessive use of intoxicating drink, and that any use of intoxicants is dangerous on account of the liability that it may become excessive. I am also fully of the opinion that any law can be justified that will prevent such use of them, and, if I had the power, I would destroy every drop of alcoholic drink on the face of the earth. But I am not prepared to admit that all the intoxicating liquor used as a beverage, or even the greater part, becomes by such use injurious to the public, so as to give it a right to interfere by prohibiting its sale, so long as any other method can be found to relieve the public from the burdens which we undertake under our system of caring for our fellows when they are unable to take care of themselves.

I am not aware that any one has ever claimed for the public a right to prohibit an individual from doing anything that does not interfere with the rights of others. If the public has no such right, it is hard to see how drunkenness becomes punishable by law unless the drunken person offensively exhibits his drunkenness. I am not aware that any one has ever claimed that the act of drinking a glass of wine or of lager-beer is morally wrong, nor that any one has ever proposed to forbid it by law. If, as is said, the use of alcoholic tonics to a certain extent is beneficial to certain persons, then there is certainly not only nothing wrong in such use, but the contrary is true. And again, if there is nothing in the use of alcoholic drinks which the public has a right to forbid, it is hard to see how it acquires a right to interfere with their sale on moral grounds alone. In a recent article in the "North American Review" Neal Dow quotes with approval certain things said by a friend of his in a conversation had with James Stuart Mill, in which his friend admits that the public have no right to interfere with what a man may eat or drink, and then claims that it has a right to do indirectly what it has no right to do directly, and gives illustrations of restrictions similar to those imposed on the traffic in intoxicating liquor. These illustrations are taken up by Dio Lewis in the latter portion of the same article and disposed of, by showing that the other restrictions depend for their justification upon grounds not set up in the case of the liquor-traffic.

Are we, then, to have an unrestricted sale, and is there no middle ground between that and prohibition, save license? Must we admit on grounds of morality that if we can not prohibit we must keep our skirts clean by refusing to regulate? The views put forward in the remainder of this article are advanced with diffidence because they are believed to be both original and new, and are a wide departure from any method which has been publicly proposed for the mitigation or removal of the evils of intemperance. The principle of high license, and, in a different relationship, that involved in the civil-damage laws, come nearer to them than anything heretofore suggested.

The quarrel that the public have with the liquor-seller is not that he furnishes the liquor-buyer with the means of injuring himself or the community. If it were, the public would have the same quarrel with the hardware-dealer who sells an axe to one who may cut himself or commit a murder with it, and with the grocer who sells matches to one who may use them to set fire to a public building. Its quarrel with the liquor-seller is that he furnishes to the liquor-buyer the means of injuring himself and the public when he knows that it will be so used, and when he has reason to believe that it will be so used, not caring whether it is or not, and, further than this, that he does it for his own selfish gain. In short, the liquor-dealer sells his deleterious liquids for the purpose of profit with a full knowledge of their injurious tendency, and in utter carelessness as to the injury they may do. We find a recognition of the truth of this position in the provisions of the civil-damage laws, and in the restrictions placed upon licensees as to sales to minors and persons known to be drunkards.

Let us pursue this further by means of a couple of supposed instances, such as occur every day. John Smith has been, during the week, a capable and industrious workman, earning full wages every day. Saturday night he gets his pay and goes to the stores, where he falls in with boon companions and spends his week's wages at the grog-shop, standing treat and drinking himself until his money is gone. Late at night he is put out into the street drunk, the liquor-seller having got his money and being ready to close the shop. Result the first: The liquor-seller has received, say, twelve dollars, of which at least three quarters, or nine dollars, is profit. Result the second: Smith is arrested and put into the lock-up for the remainder of the night; in the morning he is brought before a magistrate and fined one dollar and costs amounting to at least five dollars, and usually more, for want of which he goes to jail for ten days. Result the third: Smith's family applies to the overseers of the poor for assistance, and they, being unable to refuse, are likely to expend five or six dollars. Total results, leaving out the moral deterioration of Smith and his family, nine dollars profit to the liquor-seller, costs of prosecution paid by the county, Smith and his family supported at the expense of the town and county for ten days, and Smith's productive labor for ten days lost to the community.

At the least calculation, in order that the liquor-seller may make his profit, the community has lost much more than an equal amount. In this instance I have supposed the liquor-buyer to spend a full week's wages, but the contrast is still greater if we suppose, as is more frequently the case, that the buyer has only money sufficient to buy liquor enough to cause his intoxication; that he is arrested and committed to jail for non-payment of fine and costs. The county then has the costs to pay, and the liquor-seller's profit is only a very small percentage of the expense he has caused the community. Let us attack his profit, wherever his trade is injurious to the public, and we shall be in a fair way to drive him out of the business altogether, or to oblige him to exercise such care in his management as to deprive it of its harm.

The first effect arising from the use of intoxicating liquor is drunkenness. It is proper that this offense against decency should be punished. Let the liquor-seller pay the expense of inflicting such punishment, not the county. The next effect, following from numerous repetitions of the offense of drunkenness, is that the habitual drinker becomes the common drunkard. Whenever he is proceeded against let the liquor-seller pay not only the costs of the prosecution, but also those charges for his detention and support which the place of his settlement, is now required to pay. As to the connection between crime and drunkenness as cause and effect I am not entirely certain. There is much to be said in favor of the view that the drunkard and the criminal are liable to be one and the same because the moral diathesis that tends to drunkenness also tends to crime; that intemperance and crime are coefficients, and that the criminal impulse is not the offspring of intemperance. There can be no doubt, however, that vastly the greater part of the abject poverty that requires the intervention of public assistance is the result of intemperance. For the purposes of the present discussion I claim that it all is. All such poverty the liquor-seller should be required to relieve.

There are, then, three classes of expenses thrown upon the community which arise as the direct result of the use of intoxicating liquor and indirectly from its sale: the expense of prosecuting simple drunkenness, the expense of prosecuting and maintaining common drunkards, and the expense of supporting the poor; and these expenses should be placed where they belong—on the liquor-seller.

The plan, then, would be to grant licenses for the sale of intoxicating liquors to all applicants who are able to furnish bonds in a sufficient sum to pay their respective shares of the expenses mentioned as assessed upon them at the close of the year for which the licenses are granted. Whenever a person is prosecuted for simple drunkenness and is unable to pay the fine, an effort should be made to induce him, by a remission of a portion of his term of imprisonment or otherwise, to disclose the person from whom he purchased his liquor. His disclosure should become of record in the case. Whenever a person is proceeded against as a common drunkard, the place to which he has habitually resorted should be ascertained in the same way, if possible. After the end of the year for which licenses have been granted, the apportionment of the sums to be paid by every liquor-seller should be referred to some tribunal, which should examine the record in all prosecutions named above, should ascertain the costs of such prosecutions, and the expenses of supporting the poor throughout the district over which it is given jurisdiction. It should have power to apportion the sums to which such costs and expenses amount among all the licensees in such parts as seem to them, after hearing the parties interested, justly proportioned to the expenses which they have severally occasioned. How this tribunal should be formed is not now a matter necessary to be discussed, but it should probably not have a less extended jurisdiction territorially than a county. It might be composed of the county commissioners and one or more of the police magistrates. Other ways of accumulating evidence, in addition to the disclosures of defendants, could be made use of, such, for instance, as recording the location of all arrests for drunkenness; and it might even be well to provide that, in the lack of other evidence, the costs of any arrest and the succeeding prosecution may be set to the nearest licensed place of sale.

It may be claimed that the tribunal to make the apportionment will have a very difficult and invidious task to perform. Difficult it will be, but no more so than the task imposed upon juries in most of the cases contested before them, and invidious so far as the persons liable to pay are concerned. But there are two things clearly ascertained at the start, to wit, the persons liable to be assessed, and the amount for which they are liable. It must be remembered, also, that the tribunal will have the assistance of all the defendants themselves, who will be the very best witnesses in the matter, for every one of them will be anxious to tell all he knows about the others, in order that his own assessment may be as light as possible. There can be no common defense. The army of liquor-sellers will be divided against itself, and no longer united against the public. Combinations for and against legislation and the employment of counsel to obstruct the administration of the law will become useless.

One of the stock arguments in favor of license is that the lincensees in the interests of their own business will be vigilant to prevent sales by unlicensed persons. Experience has shown, I think, that this expectation has not been confirmed by the facts. The licensed seller is given permission to carry on a profitable business, in which all others are forbidden to engage under severe penalties, and this business is so profitable and the penalties are so effectual that it is never worth while for him to go to the trouble and expense of attempting to suppress the unlicensed dealer. He is entirely content with what the public will do for him in this direction. Under the plan proposed the suppression of the unlicensed seller becomes vitally important to the licensed, for the latter will be obliged to undergo the expenses occasioned by the former, in the same manner that the public now sustains the expenses occasioned by them both.

To recapitulate, in short:

Prohibitory laws have never wholly prohibited in fact, and are objectionable to many persons favorable to the cause of temperance on grounds involving the fundamental principles of legislation.

Under license laws we have a privileged class protected by the public in the exclusive conduct of a business which leads to burdens and expenses, which the public assumes, in effect saying to the licensees, "Go, and for your profit do us all the injury you please or find convenient, and we will not only pay the bills, but we will take care that no one interferes with you."

Under the plan proposed, the burdens and expenses arising from the use of intoxicating liquor are placed where they belong—that is to say, on those who undertake to make a profit from supplying it; and they are under inducements to reduce such burdens and expenses to a minimum. It may be that no one will be willing to take the risk of engaging in the business with these liabilities, but for this I care not, for we should then have an unobjectionable form of prohibition.