Popular Science Monthly/Volume 37/October 1890/Liquor Laws Not Sumptuary

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1195000Popular Science Monthly Volume 37 October 1890 — Liquor Laws Not Sumptuary1890George F. Magoun




THE recent article[1] of William A. Hammond, M. D., on Sumptuary Laws and their Social Influence consists of two parts—

(1) an attempt to confound laws prohibiting the common sale of alcoholic beverages with obsolete "sumptuary" legislation, and (2) certain criticisms in the same strain upon such laws in Iowa and Minnesota, and upon the New York and Michigan laws against the selling of cigarettes to minors. As no pretense is made of showing that the latter are "sumptuary," or that it is a tendency to luxury and expense which makes them a dead letter in the city of New York and elsewhere, they may be at once dismissed from consideration.[2] A long-time resident of Iowa has something to say in defense of the stigmatized statutes of his adopted State.

The sweeping assertion of Dr. Hammond is in the following terms:

"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." The first example given to sustain this is a law of Iowa, referred to (after descriptions of the sumptuary laws proper of Sparta, Rome, and England) thus:

"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" [i. e., to forbid the people "to wear, to eat, and to drink what they please"]. "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."

A citation is then made from the records of the colony of Massachusetts of a statute for which four reasons are alleged, one of them being "much waste to the good creatures." This, and this alone, is a sumptuary reason. But the law cited—if it be one—is not simply and distinctively sumptuary, though such laws were passed by that and other colonies. For example, Virginia, in 1662, enacted the following:

"An Act[3] prohibiting the importation of unnecessary Commodities. Whereas, the low price of tobacco will hardly supply the urging and pressing necessities of the country, etc., . . . Be it enacted that no strong drink of what sort soever, nor silke stuffe in garments or in peeces (except for whoods and scarf es), nor silver or gold lace, nor bone lace of silk or thread, nor ribbands wrought with silver or gold in them, shall be brought into this country to sell, after the first of February next; under penalty of confiscation," etc.

So Massachusetts enacted in 1634 as follows:

"The Court, taking into consideration the greate, superfluous, and unnecessary expences occasioned by reason of some newe and immodest fashions, as also the ordinary weareing of silver, golde, and silke laces, girdles, hatbands, etc., hath therefore ordered that noe person, either man or woman, shall hereafter make or buy any apparell, either woollen, silke, or linnen, with any lace on it, silver, golde, silke or threed, under the penalty of forfeiture," etc. Subsequent provisions forbid any one to make "slashed cloathes," but allowed men and women "to weare out such apparell as they are nowe provided of (except the immoderate greate sleeves, rayles, longe-wings, etc.)." In 1636 a law was passed against making or selling any bone lace. In 1641 the General Court, noting excesses prevailing against enactment, ordered the constables of every town to see to its enforcement.[4]

Upon the face of them these are characteristically, simply, and only sumptuary prohibitions. Their one, immediate, and sole object is the prevention of private waste and expense. So Dr. Johnson, a century and a half ago, defined this class of statutes: "Sumptuary [sumptuarius, Lat.]: Relating to expense; regulating the cost of life." He quotes Bacon, a century earlier, on "removing want and poverty" through. "the repressing of waste and excess by sumptuary laws." The definition has never changed down to our day. (Cf. Webster, Worcester, and others.) So Skeat's Etymological Dictionary—"relating to expenses (L.). It is rather Englished from Latin, sumptuarius, belonging to expenses, than borrowed from the French. Formed from crude form of sumptus, expense, cost" [so "sumptuous"]. It is therefore simply evidence of lack of discrimination to call any law a sumptuary one whose object is not the prevention of cost, expense, and waste. One might as correctly pronounce the proclamations in the colony of New York against any but the Dutch Reformed worship (1656, 1662), or those of Virginia against absence from the Episcopal service (1623, 1652), or those of Maryland against blasphemy and denying the Trinity, and using anything in public worship save the Book of Common Prayer (1649, 1700), sumptuary laws as those of to-day against the traffic in intoxicating beverages. They have nothing in common. The colony of Maryland provided that "every ordinary keeper that shall demand or take above 10 lbs. of tobacco for a gallon of small beer, 20 lbs. of tobacco for a gallon of strong beer, 4 lbs. for a lodging, 12 lbs. for a peck of Indian corn or oats, 6 lbs. for a night's grass for a horse, 10 lbs. for a night's hay or straw, shall forfeit for every such offense 500 lbs. of tobacco." It would be an unnecessary blunder to assert that this had nothing to do with restraining what was deemed undue cost of living and traveling. But Maryland enacted the same year (1699) that "No inhabitant of this Province shall sell without license any cider, quince drink, or other strong liquor, to be drunk in his or her house, upon penalty of 1,000 lbs. of tobacco for every conviction." Is the reason and principle of this the same with the reason and principle of measures adopted to keep down prices, such as several colonies adopted—e. g., that just cited, restraining innkeepers from overcharges? Both are prohibitory. But is the restraint of unlicensed liquor-selling fitted to lower the prices of intoxicating drinks, or—other things being equal—does the cost of a license to sell tend to raise prices? If, then, this latter Maryland law could not have been sumptuary, has not the free sale of intoxicants been repressed, whether by license or prohibition, for other reasons r-viz., those of public policy—that is to say, the duty of "every independent State" to have "a regard for the welfare of society"? But this is just what Dr. Hammond takes it upon himself to say has not influenced the legislation of certain great commonwealths, East and West, forbidding the sale and manufacture of alcoholic beverages. Is it quite sure that he knows their ends and motives better than they know them themselves?

The point will be made still clearer—if this is possible—by noting the ancient colonial legislation against liquor-selling, and judgments against drunkenness. 1630, Massachusetts: "It is ordered that all Rich: Cloughe's strong water shall presently be seazed upon, for his selling greate quantytie thereof to severall men's servants, which tvas the occasion of much disorder, drunckenes, and misdemeanour." If we are to believe Dr. Hammond, "the Massachusetts Court of Assistants and General Court," who passed this order, either did not know why they passed it, or deliberately falsify the record, giving certain fictitious reasons for their action in place of the one constant, true one for all such action, known to Dr. Hammond now, but absent from the history of the case. This is reconstructing history with a vengeance. For our own part, we prefer to believe the Massachusetts actors and witnesses themselves. 1632: "It is ordered that the remainder of Mr. Allen's stronge water, being estimated about two gallands, shall be delivered into the hands of the deacons of Dorchester, for the benefit of the poore there, for his selling of it dyvers tymes to such as were drunke with it, hee knowing thereof." Neither the recording officer, nor the Dorchester deacons, nor the General Court, seem to have known that the real reason here was that those who made themselves drunk could not afford the expense!

Dr. Hammond gives a couple of instances of colonial punishment of drunkenness. Here are others. 1633. Massachusetts: Robert Coles fined £10 for "abusing himself shamefully with drink," and enjoined to stand with "A Drunkard" in great letters on a white sheet on his back, "soe longe as the Court thinks meete." [The penalties for repetition next year—disfranchisement, etc.—referred to by Dr. Hammond, were remitted, May, 1634, on submission and testimony of good behavior.] T. Hawkins and John Vauhan fined 20s for a similar offense and selling "strong water, contrary to an order of Court." In 1643 and 1650 the colony made the harboring of drunkards penal. But there is not the slightest evidence that the proceedings in these cases were for sumptuary reasons. 1639: Wm. C——  was fined 40s. "for misdemeanor in drinking, and corporal punishment remitted upon his promise to avoid such occasions." The same year, in New Haven, John Jenner, "accused of being drunk, was acquitted, it appearing to be of infirmity, and occasioned by the extremity of the cold." "Mr. Molenour, accused, but not clearly proved, was respited." It could hardly have been the object in these cases to prevent the expenditure for the liquor, or to dictate what the persons concerned should or should not drink! Nor when Thomas Frankland was punished "for drinking strong liquors to excess and entertaining disorderly persons into his cellar to drinking meetings." The First Code of Connecticut, 1650, mentions "divers abuses that fall out by several persons that sell wine and strong water, as well in vessels on the river as also in several houses"; and the Orders of the General Court of Massachusetts, 1643, forbidding continuance "above half an hour at a time in any common victualinghouse" for the purpose of tippling, justifies this "for the preventing that great abuse which is creeping in by excess in wine and strong waters." Were these bodies entirely mistaken in supposing they were actuated by "a regard for the welfare of society M instead of sumptuary considerations? On the other hand, in 1637 the record" it hath appeared unto this Court (Mass.), upon many sad complaints, that much drunkenness, waste of the good creatures of God, mispence of precious time, and other disorders have frequently fallen out in the inns and common victualing-houses, "includes sumptuary considerations, with others (as did the prohibition two years later, cited by Dr. Hammond), as reasons for regulating the price of liquors and meals at inns.[5] Need any one confound this with laws simply to prevent drunkenness? Perhaps the confounding of these two different things has arisen from the mendacious forgery of Peters (Blue Laws, 26). "A drunkard shall have a master appointed by the selectmen, who are to debar him from the liberty of buying and selling" (published in 1781). Under the head of "Innkeepers," etc., the New Haven Laws and the First Connecticut Code provide penalties, ten shillings or less, for drunken behavior, etc., at inns, and for the "disorder, quarreling, or disturbance" resulting. And here the colonies—the Northern ones, for those of the South seem to have laid no such restriction—followed the laws of England; for example (4 James I, ch. 5) "Every person convicted of drunkenness shall forfeit, for every such offense, five shillings; and if unable to pay, shall be set in the stocks six hours." The law of Minnesota against drunkenness may be more severe in amount of penalty—"from ten to forty dollars for the first offense"—but is no more "sumptuary" than the old statute of James I—no more so than the French and German military prohibition of tobacco. Is it the expenditure made by the soldiers for cigars or cigarettes that these army orders are intended to prevent, or the unfitting of their nerves and muscles for military service? What an absurd bugbear the word "sumptuary" is, to be sure!

We can now readily see that the law of Iowa, twice referred to by Dr. Hammond, is not a sumptuary law at all; did not have for its prototype the partly sumptuary colonial enactment of Massachusetts of 1639, or the previous one of 1636; and is intemperately stigmatized as "the height of human folly." One would think from his description—"it is-made a penal offense for one person to ask another to take a drink"—that even in the "castle" of one's own home one can not do this in any circumstances—so eager are the Iow a law-makers to forbid the people "to wear, to eat, and to drink what they please." Passing the flippant tone in which it is asserted that a man who, "in the sanctity of his own house, gets quietly drunk and goes to bed," "has injured no living being but himself," it is to be said that there is nothing whatever in the penal features of the prohibitory statutes of Iowa that has anything to do with the "sideboard" in a private house.

It strikes one rather oddly, on the score of logical concinnity, that the prevention of a man's being "treated" to liquors, without any expense to himself, should be argued against as a "sumptuary" measure, whether the giving away of the liquors is done in a saloon or a parlor. A prejudice in favor of the free use and sale of intoxicants may indeed prevent one from seeing a ludicrous fallacy here.

A prohibition of giving away liquors to Indians, minors, and persons who are already intoxicated is quite an old affair in the Code of Iowa. It stands under the title "Offenses against Public Policy." To persons who have lived in States or Territories where Indians still linger it will be very clear at once what "public policy" has to do with it, and that the sumptuary question has nothing. A general provision years since against evasions required courts and juries to construe the whole chapter concerning intoxicating liquors "so as to cover the act of giving as well as selling by persons not authorized." Is not this according to public policy, anyway? Artful sales by pharmacists for other purposes than medicine were carefully provided against. Selling to voters within a mile of the polls during an election was forbidden, and the purity of elections further protected by forbidding to give them any intoxicants, including ale, wine, and beer. Is this any more sumptuary than making the sale unlawful within three miles of the State Agricultural College (save for sacramental, mechanical, medical, or culinary purposes), or within a hundred and sixty rods of any agricultural fair? On the other hand, all this was so far from interfering with the right of the people to drink what they please that the Iowa Supreme Court had decided that the act of giving is not in itself unlawful, that the keeping of liquors without intent to sell unlawfully is not affected, nor the character of liquors as property. "The statute," said Judge Beck, of the Supreme Court, in one case, "does not forbid the simple act of giving when no consideration, reward, or payment was given or promised, and none expected, and which was not intended as a subterfuge to conceal unlawful sales and evade the penalties of the law." These things are recited to show the spirit of the legislators and judiciary of a prominent prohibition State. On these principles later enactments are founded.

But evasions of the law and the making of drunkards thereby, continuing to be found in a state of intoxication (in the presence of others, of course, not quietly sleeping off a debauch alone "in the sanctity of [one's] own house"), was more recently made a misdemeanor, punishable with ten dollars fine or thirty days in the county jail. That the object was not to prevent the drunken person's loss ("injuring no living being but himself"—were this in ordinary cases possible)—is evident from the remission of the penalty on his informing against the vender who has defied law and injured the welfare of society; so little concern has the prohibition for cost or waste on the part of the person buying and getting drunk. To prevent another evasion, it was also in recent years made a misdemeanor to keep a club-room "in which intoxicating liquors are received or kept for the purpose of use, gift, barter, or for distribution or division among the members of any club or association by any means whatever." The object of this must be clearly beyond the power of any one ever so prejudiced to misrepresent. In keeping with this, the buying by a third person to treat an intoxicated person made the seller, not the third person who met the expense, liable at law.* Also, the interpretation of the law was made to cover "alcohol, ale, wine, beer, spirituous, vinous, and malt liquors, and all intoxicating liquors whatever," their evil effects—and not their cost, or the waste of money upon them—being alone in view. Still later, in 1888, the Iowa General Assembly, to prevent other evasions still practiced with perverse ingenuity and against the weal of the commonwealth, enacted what, I suppose, has called out the effort of Dr. Hammond to stigmatize all our prohibitory legislation as sumptuary. It was this:

"After this act takes effect no person shall manufacture for

  • Some anti-prohibitionists, for example, the present Democratic anti-prohibition Governor of Iowa—the only State officer of this description, and the first one elected for about a generation—favor summary, or even severe, dealing with drunken persons. Prohibitionists agree with them in this substantially, and in not interfering with their personal right to buy, while they differ with them as to repressing the sale by others openly, which is the chief source of drunkenness.

The public prints within a few days contain the following, which an experienced army surgeon will hardly pronounce "sumptuary"!

"The military commission of the Austrian army have established a law that the offense of intoxication should be punished the first time by a public reprimand. The second offense by several days' imprisonment in the guard-house. The third offense is evidence that tho victim is suffering from a chronic disease, and he is placed under constant surveillance. His pay is taken out of his hands, and every means used to prevent him from getting money to secure spirits." sale, give away, exchange, barter, or dispense any intoxicating liquor for any purpose whatever, otherwise than as provided in this act. Persons holding permits as herein provided shall be authorized to sell and dispense intoxicating liquors for pharmaceutical and medicinal purposes, and wine for sacramental purposes, but for no other purposes whatever."

I hope the terms of this statute make it sufficiently evident that the men who made and passed it were absolutely in downright earnest to suppress the wretched traffic in drunkard-making beverages, and I have not a word of apology to offer for them. This measure, to use Cromwellian phraseology, is one of "root-and-branch" extermination of a sore and fearful evil. But along with it should go the statement that this is but half of their legislation on the subject, the other half—known as the "Pharmacy Act"—being permissive of the sale of the same intoxicants, for the lawful purposes above named, by pharmacists, under restrictions. Some of these were by the last General Assembly relaxed, with no effect, however, upon the other half of the law, prohibiting sales of beverages by other persons. Step by step that has been allowed by law and that forbidden which long and disastrous experience showed might or must be. I am authorized to declare that neither this nor any other statute of Iowa is "sumptuary" in character or intent. I do not claim that all of them are perfect for their ends, but only that—a simple fact—this is in no instance among their ends. The giving away of means of intoxication included in the last recited statute (22 Gen. Assembly, chap. 71, § 1) is forbidden simply and solely to prevent evasions. Doubtless it will be condemned by those who are willing the risk of promoting drunkenness should be incurred by a liquor traffic more or less free; but, after this patient exhibition of authoritative facts, it should be forever impossible for any intelligent and candid man to stigmatize it as "sumptuary."[6]

After this refutation of its main contention, minor points, made in the same spirit in the article here criticised, hardly require notice. That "no one is safe under such a law" as that of Minnesota from arrest and penalty on the charge of his being drunk, will call out a smile among the sober people of that good State. That every law of this tenor is quite or "almost a dead letter" is—within the ordinary and daily observation of citizens in States where they are in force—absolutely contrary to fact. At the time of this writing the retail of drinks manufactured in other States is suddenly and notoriously increasing under the "original packages" decision of the Supreme Court of the United States. This unhappy change is proof plenary of the wide departure from truth, among other things, of assertions that sales were all the while going on, which have been suppressed and only now resumed. Such assertions have come chiefly from persons residing elsewhere, in the face of the testimony officially given by the Governor of Iowa, judges, and other State officers. That there are other offenses against society unpunished and unforbidden is nothing to. the purpose as to why liquor-selling is forbidden. If advocates of temperance argue, in the way of philanthropic moral suasion, that "those who indulge in alcoholic liquors or tobacco spend money which could otherwise be more profitably used," it is just what they should do; but in not even the smallest measure does it go to prove that laws devised for other objects were intended, after all, though their authors do not know it, to prevent this spending of money. If they have this effect incidentally, so much the better for the money spenders and no worse for the law. Any good "social influence" of a Code of Criminal Procedure which provides penalties for such "Offences against Public Policy" Dr. Hammond is precluded from recognizing by his assertion that they are null and void. What, then—should such offenses go scot free? "What crimes, then, should be punished at all? His boast of evading the law of Rhode Island" at a prominent hotel n by a trick—be it professional or unprofessional—with impunity[7] is certainly very good evidence that the law did not prohibit the private act of drinking, but the public act of selling. Does any law anywhere interfere with liberty of buying, save in the harangues of Personal Liberty Leagues? Prohibitionists everywhere disclaim such interference, but claim the right of "every independent State" to suppress the common and public sale of anything deemed detrimental to "the welfare of society." Any argument against this has little weight, save with those who subordinate this "welfare" to personal convenience, and, moreover, goes too far in that it sanctions the open sale of powder and dynamite by anybody who sets up his "personal liberty" in this regard. The real objection of the free-sale advocates is to the actual obstacle "to get any kind of liquor a person wants" in any kind of "packages," and "as many more on the same terms," i. e., by some unlawful evasion—which obstacle is denied in the same breath to exist! One horn or the other of the dilemma the advocates of free sale should now choose, after so long playing pendulum between the one and the other.

It is not a little surprising that under the head of "social influence" a stronger denial than this self-contradictory one is not made. It is here suggested gratuitously to the liquor interest. When its advocates assert that those who are determined to have intoxicating beverages will get them, by hook and by crook, spite of all safeguards with which the public weal surrounds itself (an assertion equally strong against powder and dynamite laws, etc., and equally weak), they almost say, but not quite, that those are least prevented from buying who most need to be. This is quite true; but it is an inevitable incident, not of law, but of universal human perversity. There is no help for it save by making men perfect at once. In a prohibition State moderate drinkers will refrain from buying, while abandoned drunkards will buy through the unmanliest, the meanest, and basest expedients. So much the better for the moderate drinkers, anyway and at least, and no worse for the law. A multitude of such persons in Iowa and Kansas to-day praise the laws that protect them from their lower selves. Even our German fellow-citizens, with habits and prejudices brought from "Fatherland," very numerously do the same. But this alone is not the extent of public good secured. Hardened criminals of any sort, whom no law can reach, would soon disappear from natural causes were not their ranks replenished. The drunkards who will lie and cheat, and generally degrade themselves for the means to get drunk, in like manner would soon die out if not reformed. But they are replaced by new recruits from the moderate drinkers alone; and if these largely respect prohibitory laws, though the unhappy beings whom they are on the way to join do not, there will ere long be few to break these laws at all. Unwittingly, the assertion of liquor men that such laws are a "dead letter," so far as it is true—and this is far less than is asserted—only suggests another defense of these laws from their widely experienced "social influence."

One sometimes wonders why license laws, as well as prohibitory ones, are not denounced as "sumptuary"! The fact is, that their natural tendency is to increase the expense of both intemperance and moderate drinking—the liquor-vender charging more for what he sells to cover his expense for a license. This might in some small measure lessen buying, and expense with it, on the part of those who can least afford to buy. Would any one pretend that this is the object of license laws, rather than to balance the notorious injury done by the traffic to the State, by putting the license fees into its treasury? There is one obvious and nearer reason for not misrepresenting license laws as "sumptuary," viz., that however thoroughly enforced they may be, the means of securing the effects of intoxicating drinks, moderate or immoderate, are openly obtainable. Under prohibition, as well enforced, they are not.

It is to be noted that, if the Iowa Legislature had not provided by further legislation against evasions of its statutes (through such subterfuges as club-room arrangements, treating, exchange, barter, etc.), there might be some pretense that it is expense to the drinker which the Iowa law originally intended to prevent. But this can not be the object when the drinker is at no expense. And so the very statute preventing evasions assailed by Dr. Hammond goes to overthrow his contention, since the reason for preventing them can not be "sumptuary." There is an old saying about hoisting one's self with "his own petard."

  1. Popular Science Monthly for May, pp. 33-40.
  2. The following is credited in the public journals to Science: "In an experimental observation of thirty-eight boys, of all classes of society and of average health, who had been using tobacco for a period ranging from two months to two years, twenty seven showed severe injury to the constitution and insufficient growth; thirty-two showed the existence of irregularity of the heart's action, disordered stomachs, coughs, and a craving for alcohol; thirteen had intermittency of the pulse, and one had consumption. After they had abandoned the use of tobacco, within six months' time one half were free from all their former symptoms, and the remainder had recovered by the end of the year."

    It is certainly supposable that intelligent law-makers could enact a statute to prevent the sale of tobacco to boys from a humane and public-spirited motive without thinking of the pennies saved to the boys; and if the enforcement of the law saved their pennies, so much the better for the boys and no worse for the law. Any good citizen is therefore at liberty to hope for such a law and such enforcement as prevents the sale. As to these and a more recent law in New York, it might be instructive to know from the legislators whether they really enacted them from "sumptuary" considerations.
  3. Dr. J. Hammond Trumbull says: "This law is crossed with a pen on the MS. record: Jefferson ' conjectured it was negatived by the Governor.'"
  4. That notorious liar, Rev. Samuel Peters, in his Blue Laws declares the penalty in Connecticut for wearing lace was "at £300 estate"—about as true history as the rest of his writings.
  5. In an age when prices, wages, and expenses were regulated frequently by law, mixed regulations of this kind would naturally at times be passed; at present, when we have nothing of the kind, they would not be, and those of a totally different character can not be made such by construction or assertion. Cf. Maryland law, 1699, above.
  6. No laws against the evasion of a statute can possibly be "sumptuary," unless the original statute is such, which in this case is not, as we have shown at large.
  7. Popular Science Monthly, May, p. 38.