Popular Science Monthly/Volume 37/May 1890/Sumptuary Laws and their Social Influence

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THERE are many persons who have what they conceive to be the good of their fellow-creatures so greatly at heart that, when they can not succeed in making them conform to a standard of right and wrong that they have set up for themselves, endeavor to accomplish their object by legal enactments. It is true they are very apt to do this under the fiction of insuring the public welfare; but it is none the less a fact, even if we admit the force of their alleged motive, that such laws as those to which I refer interfere with the personal liberty of those against whom they are aimed, and this to an extent incompatible with that degree of freedom of will and of action which is inseparable from the individual in all communities founded upon what we call liberty. Moreover, they are inquisitorial in their nature, and, what is perhaps a point of even still greater importance, they fail to accomplish the object in view; and being continually evaded on one pretext or another, tend to diminish that respect for the majesty of law which all well-ordered citizens should entertain.

The history of sumptuary laws, or laws tending to limit luxury and expense, shows how truly the remarks just made are founded on fact; and yet in all ages of the world such laws have been passed, to be disobeyed, held in contempt, remaining on the statute-book unenforced, and finally either passing into oblivion or being formally repealed. As we are apparently passing through a stage of our national existence in which sumptuary laws are making their appearance, it seemed to me that the Society for Medical Jurisprudence and State Medicine might very properly have its attention directed to the subject.

Among the first within our knowledge to provide by law for the regulation of the appetite, the taste, the affections, the dress, and the most minute details in the life of a citizen was Sparta, Sparta was a small country and its people were few; they were surrounded by powerful neighbors. The first principle instilled into the mind of every individual was, that the state had a claim upon him superior to that of parents or of any relational or social bond. He was from the very cradle trained for war; luxury, being regarded as incompatible with true manliness, was to be suppressed at all hazards. Foreigners, being liable to become a disturbing factor in the system of discipline enforced, were not allowed to enter Sparta; even the feeble children, as being unfit for war and liable to become burdens on the community, were put to death. Gold and silver were excluded, and the coinage was of iron. As far as possible the whole nation was fed alike. That the system was effectual in accomplishing the object that Lycurgus had in view, is probably true. It succeeded just as persecution succeeds when it is thorough and implacable. A half-hearted system of persecution not only fails in its object, but invariably advances the cause against which it is directed. If, for instance, we could kill all those who oppose us in our efforts to make matters accord with our own way of thinking, we should undoubtedly be triumphantly successful; but if we only killed a few of them, it would not be long before the number of the remainder would be so augmented that they would kill us.

Nowhere has the inefficacy of sumptuary laws been more thoroughly demonstrated than in Rome. There the dress, the food, the furniture of the houses, were attempted to be regulated by law after law, which were either openly or secretly disobeyed, and which eventually disappeared from the statute-books. The cost of entertainments was limited; the number of guests a person might have at his house was restricted. No woman was allowed to have more than half an ounce of gold, or to wear a dress of more than one color, or to ride in a carriage. In France, during the Celtic period, a law was passed that women should drink water only. In 1188 or thereabout no person was allowed to wear garments of vair, gray, zibeline, or scarlet color. No laced or slashed garments were allowed, and no one could have more than two courses at meals. In 1328 scarlet was only permitted to be worn by princes, knights, and women of high rank. The use of silver plate was prohibited except to certain high dignitaries; and women were frequently sent to prison in forties, fifties, and sixties at a time for wearing clothes above their rank. Even as late as the seventeenth century gold, as an ornament on carriages, buildings, and gloves, was prohibited.

In England, during the reign of Edward IV, cloth of gold or silk of a purple color was prohibited to all but members of the royal family. Lords were allowed to wear velvet, knights satin, and esquires and gentlemen camelet. None but noblemen were allowed to wear woolen clothes made out of England, or fur of sables, and no laborer, servant, or artificer might wear any cloth which cost more than two shillings a yard. In the year 1336 an act of Parliament was passed which I quote in full, as showing to what extremes law can go in the way of interfering with the interior life of the citizens:

"Whereas heretofore, through the excessive and over-many sorts of costly meats which the people of this Realm have used more than elsewhere, many mischiefs have happened to the people of this Realm: for the great men by these excesses have been sore grieved, and the lesser people who only endeavor to imitate the great ones in such sorts of meats are much impoverished, whereby they are not able to aid themselves nor their liege lord in time of need as they ought, and many other evils have happened as well to their souls as to their bodies, our Lord the King, desiring the common profit as well of the great men as of the common people of his Realm, and considering the evils, grievances, and mischiefs aforesaid, by the common assent of the prelates, earls, barons, and other nobles of his said Realm and of the commons of the said Realm, hath ordained and established that no man, of what state or condition soever he be, shall cause himself to be served in his house or elsewhere, at dinner-meal or supper, or at any other time, with more than two courses and each mess of two sorts of victuals at the utmost, be it of flesh or fish, with the common sort of pottages without sauce or any other sort of victuals. And if any man choose to have sauce for his mess he may, provided it be not made at great cost; and if flesh or fish be to be mixed therein it shall be of two sorts only at the utmost, either flesh or fish, and shall stand instead of a mess except only on the principal feasts of the year, on which days every man may be served with three courses at the utmost, after the manner aforesaid."

But laws and proclamations were of no avail, though they continued to be issued and passed down to the reign of Queen Elizabeth; and in the reign of James I all sumptuary laws were repealed. Since then the people of England have been allowed to wear, to eat, and to drink what they pleased.

In our own country the experiment has been tried with as much thoroughness and with practically as little result as has attended the attempt by other nations. As early as the year 1639 we have the prototype of that curious law enacted a few years ago in the State of Iowa, which prohibits one person from inviting another to take a drink, or treating, as it is called.

In the records of the colony of Massachusetts for the year mentioned we find as follows:

"Forasmuch as it is evident unto this Court that the common custom of drinking one to another is a mere useless ceremony, and draweth on that abominable practice of drinking healths, and is also an occasion of much waste to the good creatures and of many other sins," such things are declared to be a reproach to a Christian commonwealth and are not to be tolerated. However, invectives of the council appear to have been of little effect, notwithstanding the severity of the punishments which were meted out to those who infringed the laws. Drunkenness, which is at most only a vice, was made a crime; and in 1636 one Peter Bussaker was condemned for drunkenness to be whipped with twenty stripes well laid on. Robert Coles, for drunkenness committed at Roxbury, was condemned to be disfranchised, and to wear about his neck so that it would hang upon his outward garment a letter D, made of red cloth, and set upon white, to continue this for a year, and not to leave it off at any time in public, under penalty of forty shillings for the first offense and five pounds for the second. Severity of punishments appeared only to aggravate the evil against which they were directed, for in 1648 the Court was forced to declare that "it is found by experience that a great quantity of wine is spent and much thereof is abused to excess of drinking and unto drunkenness itself, notwithstanding all the wholesome laws provided and published for the preventing thereof." It therefore orders, with a blind perversity which is a remarkable instance of the fatuity which actuates people when they endeavor to accomplish the impossible, that those who are authorized to sell wine and beer shall not harbor a drunkard in their houses, but shall forthwith give him up to be dealt with by the proper officer, under penalty of five pounds for disobedience.

Tobacco, for some cause or other, was especially obnoxious to the early colonial authorities of Massachusetts. The trade in the weed was only allowed to the old planters, but the sale or use of it was absolutely forbidden unless upon urgent occasion for the benefit of health and taken privately. It was also ordered that victualers or keepers of an ordinary shall not suffer any tobacco to be taken into their houses, under penalty of five shillings for every offense, to be paid by the victualer, and twelvepence by the person who takes it. Further, it was ordered that no person should take tobacco publicly, under the penalty of two shillings sixpence, nor privately in his own house or in the house of another before strangers; and that two or more shall not take it together anywhere, under the aforesaid penalty for every offense.

It is true these laws against the use of tobacco are not so severe as some that have been enacted in other countries, but they were equally inefficacious. Thus, a Sultan of Turkey issued an edict to the effect that any one of his subjects detected in the act of smoking should for the first offense have his cheeks bored and transfixed by his pipe; for the second offense he was to have his nose cut off; and for the third he was to lose his head. Fines in the case of the New-Englanders, and mutilation and death in the case of the Turks, have not in the slightest degree prevented the use of tobacco; and that some recent laws to which I shall presently draw attention will prove equally futile there can be. no doubt.

In all these instances of sumptuary laws the ground has been taken that not only was the individual to be benefited, but that society as a whole was to be improved. Prohibitory laws relative to the manufacture and sale of alcoholic liquors which have been enacted in this country in our own times are based upon this assumption, but the arguments that have been used by those advocating such laws show that this is not the only motive by which they are governed. It has been and still is repeatedly asserted in the speeches and writings of these people that those who indulge in alcoholic liquors or in the use of tobacco spend money which could otherwise be more profitably used, and that indulgence in the habit of drinking or smoking directly conduces to idleness and luxurious habits. These assertions are probably true, and the laws against which the practices in question are directed are essentially sumptuary laws.

The laws which several States have enacted relative to the manufacture and sale of alcoholic liquors are true sumptuary laws, notwithstanding the fact that it is claimed by their adherents that they are measures which every independent State having a regard for the welfare of society is in duty bound to enforce. On that ground there are many other acknowledged evils against which the law-making power might very properly direct its energies, and which would interfere scarcely less with personal rights. One chief difficulty with such laws is that if thoroughly enforced, they do harm to those who never under any circumstances drink intoxicating liquors to excess, and yet who are benefited by their moderate use. As a matter of fact they never are enforced equally upon all classes of the community. In the most severe of all the States it is perfectly practicable for any person with pecuniary means to import as much alcoholic liquor for his own use and that of his family and friends as he chooses. The poor man, to whom a glass of beer or of wine taken decently and in order might not only do no harm, but might supply a positive want of his system, has to go without, or else resort to all kinds of deceit and subterfuge to get what he wants. States exceed their legitimate powers when they undertake to prevent a person doing that which is beneficial to him, and which does no harm to any one else. Moreover, as I have already said, such laws, being in this age of the world impossible of enforcement, tend to bring all law into contempt. It is not necessary for me to go into detail on this point; every one who hears me knows how the prohibitory liquor laws of the various States that have passed them are disregarded and ridiculed. Every now and then we hear of some instance where an offender is arrested and punished, but for every one brought before the courts a thousand go unnoticed. In the States of Maine, Vermont, and Rhode Island I know from my own personal experience that, notwithstanding the stringent liquor laws that exist, it is just as easy for a person to get any kind of liquor he wants as it is in the city of New York.

Upon one occasion, at a prominent hotel in the State of Rhode Island, while at the dinner-table, I asked the waiter to bring me a bottle of champagne. He departed, but returned in a few minutes with the information that I could not have it without a medical prescription. I took his wine-card and writing the mystic symbol "," followed it with the words "vini campaniæ, ℥ xxxij–Sig.: To be taken p.r.m."–signing my name to it. In a few minutes he returned with the bottle, and I could have had as many more as I wanted on the same terms.

Several of the States, as we know, have recently receded from their advanced position on prohibition, and the State of Rhode Island has by its Legislature recently resubmitted the question to the people.

In the State of Iowa, not only is there a stringent prohibitory law, but it is made a penal offense for one person to ask another to take a drink. Of course, as I learn from reliable information, the law is almost a dead letter. It can be evaded in a hundred different ways. For instance, one man invites another into his house, takes him to the sideboard, and, perhaps in the presence of a dozen witnesses, pours out two glasses of whisky, drinks one himself, looks away for a moment, and his friend drinks the other. He has not disregarded the letter of the law. Are not such laws as this the height of human folly?

The State of Minnesota has quite recently struck out still further in the same direction, and has to a still greater extent interfered with the personal liberty of the individual. A law framed, as we are told, by Senator Schaeffer, has recently gone into effect in that State, and which is designed to punish drunkenness. It provides for a fine of from ten to forty dollars for the first offense, from forty to sixty dollars for the second offense, and ninety days in the workhouse for the third. When asked what effect the law would have on the Minneapolis municipal court, Judge Maloney said:

"It will not materially change the order of things with us. Our custom in treating drunkenness is much the same as provided in the new law. There is, however, one feature of the law that differs from the ordinance under which we formerly worked. According to the ordinance, the offense was not punishable unless committed in some public place, while the statute covers drunkenness in secret as well as in the public street. I am glad this bill passed the Legislature. It makes it a crime now in our State to drink to excess, and it is an expression of the public condemnation of drunkenness. I think it will result in doing a great deal of good. For the reasons I have cited, the new law has created no unusual features in the pastime of drunkenness in this city as yet. Its eventual effect will, of course, depend greatly upon the leniency or strictness of the authorities."

Now, that drunkenness is both a vice and a sin is not to be questioned; but, if the law-making power sets out to punish vices and sins, it will have its hands full, and will attempt an impossible task. The world has tried this experiment in almost all ages, and uniformly without success. Not very many years ago the ordinances of the Church were in some countries enforced by law; and even now some nations, and, I am sorry to say, some of the States of this very Union of ours, inflict severe punishments upon profane swearers and blasphemers, thus again punishing sins and vices as though they were crimes. A sin or a vice does not necessarily inflict injury upon others, whereas a crime does. Drunkenness is not of itself, properly speaking, a crime; but if a person through his drunkenness creates disorder in the streets, or is offensive in any respect to those with whom he comes in contact, he ought to be punished to just that extent that his disorderly or offensive conduct requires. It is almost impossible for a person to be drunk in the public streets without being in some degree disorderly and offensive, and he is very properly arrested and fined or imprisoned.

But if any law can be more ridiculous, more outrageous in its influence upon the liberty of the citizen, it is this one which the State of Minnesota has recently enacted. A man, for instance, in the sanctity of his own house gets quietly drunk and goes to bed. He has injured no living being but himself, and he has a right to injure himself if he is such a fool. He has a legal right to cut off his hand, or to knock out his teeth, or to punch out his eye, even though by these acts he does inflict injury indirectly upon those who are dependent upon him. He has a natural right to take his own life, and though the State of New York (the only community, to my knowledge, that has such a law upon its statute-book) makes the attempt at self-destruction a crime, the law is so absurd that no one yet has been punished under it.

Moreover, the Minnesota law against drunkenness is almost impossible of enforcement, unless under such a system of espionage and domiciliary visiting as would render it intolerable to any people having a spark of manliness or independence in their character. Think of a police officer armed with a warrant entering a man's house, finding him in bed and in an apparent state of insensibility. He applies the only test known to the average policeman, and smells the breath of his potential victim. He detects the odor of alcohol, and straightway drags the supposed offender before a magistrate. The man may have had a headache, and have taken a glass of wine or of some other liquor; he is naturally indignant at being treated in so outrageous a manner, and utters his protest in no measured language; his conduct only serves to convince his captors that the charge based upon the odor of alcohol is well founded, and he is mulcted in forty or sixty dollars, or sent to the workhouse for ninety days, as the case may be. No one is safe under such a law; it is often a very difficult matter to determine whether a person is drunk or sober, and frequently it is impossible even by the most minute examination. Again, some people become intoxicated from a single glass of champagne, while others will drink two or more bottles with impunity. It is manifestly unjust to allow an individual peculiarity like this to establish the guilt or innocence of an accused person.

As I have said, why stop at making drunkenness a crime when there are other vices far more immoral and more destructive to the character of the perpetrator? Why not enact a law against lying? There are laws against slander, which injures the one against whom it is directed, and they are well enough, for to injure another is a crime. But lying in the abstract remains unnoticed by the penal statutes, though a more degrading vice in the eyes of all civilized mankind than mere drunkenness.

On the first of June of the year 1889 a statute went into effect in the State of New York which prohibits, under severe penalties, the selling of cigarettes to minors under the age of sixteen; and the State of Michigan has recently not only enacted a similar law, but goes farther, and interdicts the manufacture of cigarettes within the limits of the State. Is it to be supposed for one moment that minors under the age of sixteen in either State smoke fewer cigarettes than they did before these laws were passed? How is the vender to know in many cases whether the applicant for cigarettes is over sixteen or not? And is there any difficulty for any minor to get a companion who is undoubtedly over sixteen, or some one else, to buy cigarettes for him? Legislatures that pass such laws, and governors that sign them, are apparently ignorant of the first principles of jurisprudence. I venture to say that even now, although not two weeks have elapsed since the act went into effect, it is practically a dead letter in the city of New York and throughout the State generally, and I am quite sure that not a single conviction will ever be obtained under its provisions. I am not certain that our society did its full duty in not protesting against the statute-books being encumbered with such rubbish. Cigarette-smoking by minors is an evil to be suppressed by proper instruction and by the intervention of parents and guardians. If these latter can not prevent it, it is quite certain that all the policemen in the State, backed by all the majesty of this particular law, will have their labor for their pains.

  1. Read before the New York Society for Medical Jurisprudence and State Medicine, June 3, 1889.