Popular Science Monthly/Volume 44/March 1894/Abolish All Prohibitive Liquor Laws
|ABOLISH ALL PROHIBITIVE LIQUOR LAWS.|
By APPLETON MORGAN.
THE creation of crimes by means of statutes providing for their punishment has generally proved itself bad policy. In the days of Henry VIII it was the maxim that "a tinker was a rogue by statute"; and in Queen Elizabeth's time actors and "stage-players" were put into the same category as tinkers. But it came in time to be understood that the soldering of tin kettles was not a crime because a tinker here and there had robbed a hen-roost, and that the profession which had produced a Shakespeare was not, by any salutary public policy, a criminal profession.
The absolute, unqualified, and distinguished failure of all laws for the abolishment of the traffic in liquors is speedily convincing even the most sanguine prohibitionist of the expediency of wiping them from every statute-book in the land. Their failure has not been so much a protest against interference with the personal liberty of the citizen as an illustration of the venerable maxim that no law can exist without, or can survive, a reason for its existence. These laws, indeed, never had any adequate or logical reason for existing at all. They have had their origins always and without exception in sparsely settled communities where personal liberty was so absolute and unquestioned that it became irksome, where liquor was almost unknown and the user of it a curiosity, and where the only knowledge of the horrors of intoxication the village possessed was derived from itinerant temperance orators who dilated upon the terrible consequences of the rum habit to a roomful of tearful old women, none of whom knew the taste of liquor or of anything stronger than green tea. The early Puritans of New England, who enacted the most ferocious of blue 578 THE POPULAR SCIENCE MONTHLY.
laws, who would not let a man step over a stone in his path or kiss not his neighbor's, but his own wife on a seventh day, no more thought of prohibiting the drinking of liquor than of prohib- iting the preaching of eight and ten hours' sermons. When they settled a town, they built, first of all, a meeting house and, next to it, a jail. The jail was for those who did not want to go to the meeting house. But the pint of " new " rum per laborer in the hayfield was as much a matter of course as the minister's madeira or sherry, or the magistrate's metheglin or eggnog or toddy. In the wainscoting around every fireplace was the sunken toddy-shelf to be drawn out of evenings, and when a meeting house was to be raised, the community were expected to drink as freely as Heaven had blessed them in good things or the means to pay for them. So lately as 1804, when the frame of the new meeting house in Brim- field, Mass., was to be raised, the town voted $121.32 for "rum, sugar, brandy, lemons, and wine " for the occasion. And there are but few towns in Massachusetts that are smaller than Brim- field. The Puritans, in their courts of justice, cited edicts and precedents, not from the reporters, but from the Pentateuch, and sent men to the jail or to the gibbet according to the laws of Reho- boam or Jeroboam. But, because the sons of Rechab drank no wine or strong drink, it no more occurred to them to forego wine and strong drink themselves than it did to forsake their substan- tial frame dwellings and camp out because these same Rechabites had forsworn houses and lived in tents on the plains of Arabia thirty centuries previously!
Liquor is legitimately and logically a subject of excise, and ex- cise laws, which may operate in rem that is, against the thing itself are proper and constitutional. But it would puzzle writers upon constitutional law to find an origin for laws prohibiting the manufacture or purchase or sale of an article of commerce, though laws regulating all three are neither unconstitutional nor improper. Besides unwritten and written or statute law, there is also what is called the " police power " of a state or a community, that is, the power of keeping the public peace. All three of these jurisdictions may deal with the individual out of whom too much liquor may have made a law-breaker. That is to say, the drunk- ard has fractured the unwritten or moral law by breaking the rule of temperance in all things. He has broken the written law by becoming a public nuisance or a public charge, and the police power of the State may lay hands upon him and lock him up for being disorderly, or for lying drunk and so blocking up the public streets that orderly persons may not pass and repass. But in what manner or form the commodity we call liquor has broken or come under the penal force of any one of these three jurisdictions, it is difficult to imagine ; and, therefore, because this is a hard ques-
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tion to answer, it is difficult to find a legal or logical origin for a prohibitory liquor law. Publicists assure us that all salutary laws and statutes which, have proved to be for the general good are found to have invariably come from a demand for protection, or for warrant from an individual or a class asking either for pro- tection or for franchise to benefit the state and himself by carry- ing on some useful business, art, or trade ; or they have been en- acted for the raising of revenue, or (as I have said above) for the conservation of the public peace. But not of such have been the origins of the various statutes against the selling of liquor which are borne on the statute-books of a great many, indeed of most of, our American States. These laws, when not copied verhatim or adopted substantially from other States as the Kansas law was copied from the Maine law have originated, not with a class of citizens who asked for protection, but with a class who proposed to protect some other class against its will. I fancy it would be difficult to find a prohibitive liquor law which was not in the first instance proposed by one who was himself either a teetotaler by preference, or one without himself any taste for anything stronger than water, and therefore without the slightest practical experience of the evils of intoxication ; or by one whose knowledge of the terrors of liquor-drinking came at second hand from the description of the itinerant " temperance " orator ; or possibly by witnessing the effects of the abuse of liquor upon some weaker- minded brother. In other words, it was exactly as if all the per- sons who preferred to go to bed at nine o'clock should revive the old law of curfew and get it back upon the statute-books ; or, as if all those who loved to go to Sunday school should legislate to make it criminal not to go to Sunday school. So far as the records go (and I consult only those published by the prohibitionists themselves), not one single proposition for the policy of prohibit- ing the sales of liquor has originated from a demand for protec- tion, or from cause of necessity, or even of expediency ; or in a locality where the evils of such sales were apparent or largely ex- perienced, or indeed experienced at all. In a rural community, however, absolutely without amusements, where personal liberty resembles, as somebody has well said, " the desolate freedom of the wild ass," and so becomes absolutely irksome where a man with a theory or a crank with a hobby is welcome as a diversion it is necessary to burrow in unusual paths for a relaxation. In such a precinct as this, a proposition to forbid somebody something, to prohibit something it might be the wearing of crinoline or of birds in ladies' hats, or card playing, round dancing, Sunday news- papers, or the eating of animal food anything, so long as it is something any one enjoys will become fortuitously popular. Any one of the above would furnish a topic for conversation, a
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call for a conference in the meeting house after singing school, might appear in the choice of a selectman, or in the election for the Assembly member, and so speedily become "practical poli- tics,^' especially in a State where a Governor is chosen every year, and so which lives in a state of perpetual gubernatorial canvass! If laws preventing the sale of liquors should be demanded in a petition of those who used and habitually purchased liquor, but who desired to be relieved from the temptation of purchasing it, a wise public policy might have decreed that the petition prevail. Or, if the best sense of the most enlightened citizens of a com- munity (and it is usually its most enlightened citizens who best appreciate the value and understand the judicious use of liquor) had felt the need of a law prohibiting the sale of cheap and poisonous adulterations of liquor to those who were unable to buy the pure article and whose healths were being deteriorated thereby in any one of these cases these laws might have wisely been forthcoming, under a general pursuit of the greatest good for the greatest number. But for the non-users and non-pur- chasers of liquor, finding themselves in a majority, to resolve on their own motion that the minority of their fellow-citizens needed a protection, for which they had not asked, from temptations against which they had not protested, but which were not temp- tations to the majority, savors rather more of what old Butler characterized as " compounding sins one had a mind to by damn- ing those ones not inclined to," than of legislation for the greatest good of the greatest number ; of paternal rather than of popular government!
Once originated, however, the history of the paternal prohib- itive liquor law is invariable namely, its appearance in local politics, then in State politics, and so on, up to the dignity of a balance of power, where the numerical insignificance of the sup- porters became a tower of strength, and the supporters themselves grew to have fat things at their disposal. The earliest liquor law I can find, for example, grew out of some letters begin- ning on February 15, 1832, in a local newspaper* in Essex County, Massachusetts ; certainly at that time one of the soberest, most law-abiding and church-going communities in the world ; whence it was carried by one of the letter-writers, who became a member of the Maine Legislature, into that learned and economic body. If there was a State in our Union of States, at that date almost Arcadian in its innocence, where the foot of the tempter and the setter of snares, or the sybarite, or the debauchee were unknown, that State was Maine! And yet from the immaculate vicinage of Essex County, Massachusetts, to the virtuous State of
- The Salem Gazette.
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Maine, the policy of prohibiting that whicli did not exist, of pro- tecting the few from temptations which had no attractions to the many, flew on the wings of oratory and became fixed by the edicts of legislation. Into the older community, Essex County, it may be feared that Satan has entered! But the sovereign citizen of the State of Maine still lives on, in comic slavery to its prohibitory liquor law a law indeed marvelous to behold, and a sight for the nations of the earth ; alternately sending its citizens to jail for being free men, and rewarding them for becoming slaves! Under the malign influences of the Essex reform the State of Maine has introduced into its economy a new industry, that of the " smeller." Its extraordinary courts and constables and special magistrates, its bailiffs and petty ofiicers who earn salaries on the pretense of enforcing laws which none of themselves, and prob- ably no ofiicers of the State or of its courts, from chief justice to tipstaff, thinks of observing, are legion. Of the published volumes of its reports the bulk are ponderous decisions on and ex- pounding of its peculiar blue laws, which read between the lines like statutes of the Grand Duchy of Gerolstein! And for all this the intelligent citizens of Maine pay the bills and dodge the laws as well as they can! Sixty years or so ago, when the Essex law crawled into Maine, surely, as I have said, it was a virtuous and an Arcadian State. At present, whether it is more temperate than any of its sister States, whether there is less immorality, drunkenness, and crime therein than in any other State in the Union, the citizens of Maine are not fond of expressing an opinion, and doubtless the less said the better! It is to be added, more- over, that the Essex County letter-writers who thus builded better, or worse, than they knew, did not themselves propose a total prohibition from the sale of wines, ales, and other vinous or malt liquor, but one solely from the sale of ardent spirits, and of this only a mild restriction (a sort of "jug law") that is, that spirits should be sold only to prevent the public drinking in rum- shops and bar-rooms, and the public spectacle of intoxication and brawling which so often resulted (and that what they sought is desirable to-day, as desirable as then, nobody can deny). But the idea that a gentleman who desired to use ardent spirits could not first purchase them, it is simple justice to the writers of the let- ters to say, did not present itself to them at all. When the mat- ter got into the Maine Legislature, however, whether because the distinction between wines and liquors was too subtle or from other causes, that distinction disappeared. As the pure and simple prohibition of the sale of any liquor, even of domestic manufac- tured cider, it became a law ; the prohibition has since been writ- ten into the Constitution of Maine itself, until that State has be- come a Commonwealth of law-breakers not only but of constitu-
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tion-breakers, for the law against selling lias become a law against manufacturing, and so against purchasing. And all these laws have been written in the Constitution of the State itself, and the citizens go on buying, selling, and purchasing, with a pretense of surreptitiousness that, comic as it all is, keeps buyer, seller, retailer, and purchaser alike in breach of the statutes in scRcula scecu- lorum!
But, from whatever source or sources ingrafted upon a long- suffering community, no honest student of these laws can deny that they have had one of three effects, if not all three of them namely, (1) to increase the demand for, while deteriorating the quality of, the supply of liquors ; (2) to stimulate the inge- nuity of the subject in evading the law itself, if not to produce the appetite for liquor drinking where it existed not before ; or (3) to give to the visionary or " crank " class in a community polit- ical balance of power that is, an absolute even if a temporary power. In other words, prohibitory liquor laws are dangerous to the physical, moral, and political health of a community : to the physical health, by inducing venders who can not afford to sell pure liquor at the risk of the penalty, but who can not well resist the temptation in view of the enormous profits of selling cheap and vile mixtures at the enhanced prices for pure liquor, to keep their poisons on sale ; to the moral health, by making honest men law-breakers (with the dangerous tendency of the law-breaker in petto toward law-breaking in extenso, which the writers of moral poetry, from Dr. Watts up, have versified about until the memory of man runneth not to the contrary) ; and to the political health, by putting power into the hands of dangerous classes, the theo- rists, the "cranks," and the people with "missions" and visions as to reforming the world! (It might be added, perhaps, that these laws offend the religious sense, for in some States, as in Maine and in Kansas, the use of wine for the sacrament has been held a violation of law. But this aspect we are not at present discussing.) And all this in addition to the fact that prohibitory liquor laws are, always and everywhere, an infringement of the liberty of the subject, in opposition to the inalienable rights of life, liberty, and the pursuit of happiness which it is the business of constitutions to decree and of States to secure.
Drunkenness is a crime in itself and the fruitful mother of other crimes, and with it the criminal law should deal. But no commercial law or municipal law, no form of civil (as distin- guished from criminal) law has anything to do with crimes- The legal maxim, as old as civilization, that one must so use his own as not to injure his neighbor, takes ample care of the liquor- seller who sells liquor to one who he knows will do violence or wrong under its influence. Let the criminal law, then, attend to
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the case of the drunkard and of the rumseller who will knowingly naake his feeble or hereditarily weak fellow-man a drunkard. But as there is no commandment in the decalogue, " Thou shalt not sell liquor/' it is not in the unwritten law, and so can not justly, equitably, or legally be put into written law. That it is ever put there means some ulterior object, or if not an ulterior object al- ways, certainly always it means, because it always has, an ulterior effect.
But prohibitory liquor laws have still another and ulterior ef- fect, to wit : They beget an exaggerated oratory and an appetite for sweeping statements which, by the cultivation of false statis- tics, becomes absolute dishonesty, and so a burden upon and a re- proach to public morals. For it is quite as heinous a sin, in the court of conscience, to lie about the number of persons who have died from using liquor as it is to lie about the amount of one's collections for charity, as did Ananias, or about the value of one's farm to the autumnal assessor. And yet another, more of an eco- nomical than a moral consequence, perhaps, might be catalogued. It has become in some communities practically impossible to dis- cuss certain important questions. For example, it is to-day prac- tically impossible in many quarters of this fair land to discuss so important a question as the effect of alcoholic liquors upon the human system. Impossible, I say, for no sooner is such a question broached than the most tropical statements, backed by the glassy fascination of enormous round numbers, would be hurled at the general public until the modest man of science, and science itself, are put to rout. This writer himself heard, in the Columbian year and from a Columbian orator, the following masterpiece of statement, to wit: "The champions of slavery, having declared their purpose to shatter the Union, withdrew from Washington and opened fire from without. Not so the liquor power. It plants its cannon, charged with hell's dynamite (enough of them to stretch in a line from this spot to the homes, the churches, the schools of the people) ; and there, sheltered and protected by the strong arm of the Government, the work of destruction goes mightily on among Americans ; every five years there is an array of dead as a consequence equal in number to those killed on both sides in the civil war." By a coincidence, these words were ut- tered at a time when the courts of the State of New York had been several months, and at an expense of several hundred thou- sand dollars' worth of high-priced expert testimony, trying to as- certain whether Mrs. Carlyle Harris died of morphine poisoning, and was beginning to make an equal outlay to find if Mrs. Dr. Buchanan had died from the effect of morphine or atropine. And yet, here and meanwhile, this glowing orator announced that not one more nor one less than a million human beings had, in the
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five years past, perished from "being poisoned by liquor by alco- hol, an extremely mild toxicant that in some form or other chem- ists tell us exists in almost all our food, solid or liquid! Did it not, perhaps, occur to the orator, or possibly to another of his au- dience besides the present writer, that in the million of cases as- sured, say in two or three, even in one of them, a latent or contrib- uting cause might possibly have mitigated the responsibility of this murderous alcohol ; that one of those million of men may have been, perhaps, indiscreet in something else besides drinking beer, or had somewhere latent in his system some congenital or local contributive cause ; or perhaps had met with some accidental incident to his alleged untimely taking off ?
But this is a single sample only of the intemperance, not to say the voluptuous dalliance with tropical statistics, of the pro- hibition orator, who asserts that liquor has slain more than wild beasts, than wars, pestilences, famines and even deluges and Johnstown floods (which latter, by the way, were bursts of water and not of alcohol, which therefore has not, even in the mouths of prohibition orators, achieved the record of water, which certainly did wreck Johnstown, and which, according to Holy "Writ, in one case did actually destroy the whole world). Indeed, nothing is more common upon their lips than the maxim " Liquor destroys both body and soul." But if the annual deaths actually and beyond question traceable to liquor were arrayed against the annual mortality (which is said to be a con- stant figure indifferently as to wars, famines, tidal waves, and the like cataclysma), it might be disputed as above if liquor always destroys the body, while as to the soul what mortal can depose and say ? The danger of the tropical statement which appears to be inseparable from prohibition politics, however, is a very great one. Falsehood is falsehood and lying is lying, even in the mouths of lecturers and reformers ; and temperance is a cardinal virtue in speech as well as in liquor drinking. Were such opulent misrepresentation and dishonesty confined only to the so-called " temperance " orators or " reformers," it would be bad enough, as teaching looseness and unreliability of statement and an irresponsibility of language, which would be and is dan- gerous to any community at large. But not only the tramp and the circulating itinerant, but eminent men, men of brains and personal worth, whose influence for good in their own neighbor- hood might be very large, are often so warped in their very fiber by this sort of misfortune as to become incapable of see- ing things as they are dealers in untruth, wrapped in untruth as in a garment. I have in mind one eminent gentleman, a man of large affairs and of otherwise unblemished integrity, who has the misfortune of being a prohibitionist leader, and
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the author and supporter of many prohibitionist statutes. As the standing chairman of a committee in the Legislature of a certain State to report annually as to the value and the opera- tion of these statutes, his reports are invariably enthusiastic as to their great value, as to their effect in closing liquor stores, and in making drunkenness almost unknown. And this in the teeth of the facts, which everybody else admits, that these stat- utes are stupendous failures, that they have multiplied the number of liquor shops, and added to whatever harm they are capable of by disguising them as " pharmacies," " groceries," or other sorts of shops, and that they have enormously increased^ almost squared, the number of inebriates reported before their passage! Nobody impeaches or dreams of impeaching the state- ments of this dear old gentleman, nameless here for evermore, who, foolish and fond and lovingly proud of his statutes, can see noth- ing but utility and salvation in them! But, all the same, it is an actual wrong, and in time it will be surely an actual damage to the Commonwealth that its intelligent citizens can so deliberately misstate facts. If its best citizens can not tell the truth on public matters, what can the Commonwealth expect of its masses ?
But everybody knows that drunkenness is a curse, and if we abolish all prohibitive liquor laws how shall the curse be removed ? To enact a law compelling every man, woman, and child to drink a pint of whisky or its equivalent in other spirits, or in vinous, or malt liquors daily, might indeed do it. But such a law would probably be impossible to propose in a legislative body cer- tainly impossible to pass to a final reading. The question can not probably be answered at present. Most things, however, have their limit of value. And it might be a question whether even the soul of a drunkard were worth saving at the expense of the liberty, the morals, and the health of an entire community. But something very near to an answer can, I think, be approxi- mated. Let us enforce the common law we have, and make it " common " indeed ; and forbear to pass statutes against which the sense of justice of the enlightened community rebels, and which can not be enforced, or whose enforcement is only, and can in the nature of things be only, a sham. Let us wipe out forever from every statute-book in America those prohibitive liquor laws which an experience of sixty years has proved to be worse than worthless, and even worse than useless, because they not only can not be enforced, but enlarge, by stimulating, the alleged evils they pretend to abolish! These laws emphatically have not lessened the manufacture, sale, or consumption of liquor. There are not to-day ten times as many people in the country as there were on January 15, 1832. But, unless figures are as unreliable as the temperance orators themselves, there are many hundred times as
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many liquor stores and shops for the public drinking of liquor in our fair land as there were upon that date. Various causes have doubtless operated to produce this enormous increase. But one cause which may have done its contributive share toward the result, perhaps, is that, under rigid statutes, any moral obligation not to use liquor which may have existed on January 15, 1832, has become a sort of moral obligation to use it as a sort of Declaration of Independence of laws which interfere with the personal liberty of the subject ; which exist not by consent of those whom those laws govern, but by the consent of those whom they do not gov- ern, and who never come within their operation ; whose prosecu- tion, since it can only be achieved by recourse to the services of the spy, the informer, and the " smeller," is persecution, and tends to bring all law into contempt and into public disgust.
That these laws do exist by reason of the judgments of appel- late courts (even the Supreme Court of the United States having affirmed their " constitutionality ") is not to militate against their injustice or their inconvenience. Those decisions are not as to the expediency, but only as to the technicality, of these statutes ; all that those decisions amount to is that as between the individual the citizen in their breach, and the State, the State has a right to enact the law under its special (State) Constitution, and that the question of internal traffic so long as it is not interstate traf- fic is not one with which the Federal jurisdiction concerns itself. Legally a State has a right to do what it will within its own boundaries, so long as it does not interfere with the rights of its neighboring States or violate the Federal Constitution. And however absurd its local statutes may be, once legally enacted they must be reviewed at the polls, not in the Federal courts. But there is a question beyond the polls.
Laws are for the greatest good of the greatest number, at least in republics, where the paternal jurisdiction of States is not invited and will not be tolerated. Granting everything that can be said as to the bad effect of liquor itself, every logician will admit that if it can be proved that in a single instance or class of instances the effect of liquor is salutary, that it cures as well as kills (as, for example, in a case of partial drowning or of rattlesnake bite), then to prevent its sale is not only illogical but oppressive. A law can not be judged as be- nign or harmful accordingly as it is negatively inoffensive. If in a single instance it refuses to save life, then it has ceased to operate benignly and has commenced to operate fatally. No law can exist without a reason for its existence, and when the reason for it fails the law disappears. But when a law operates not only unreasonably but fatally, there should not be much hesitation as to its doom. It is illegal. And this is another case where liquor
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laws are dangerous to the community namely, they might pre- vent the purchase of enough liquor to save a human life. As it is, there are rural communities, not a thousand miles from the metropolis of New England, where the apothecary will refuse (and in my own experience has refused) to sell the mother of a sick child enough alcohol to light a spirit lamp to warm the little sufferer's sustenance on a summer night at a strange hotel, where no other artificial heat could be procured! This same apothecary could sell Paris green by the pound for the destruction of alleged potato bugs, or morphine, or arsenic, or any other poison on pres- entation of a scrap of paper beginning with an " IjL ," and signed by any scrawl which the writer might choose to affix, and call it the signature of a physician. Our apothecary that night was illogical and dangerous to the community, not by instinct or by choice, but by the virtue of the laws of his State by the laws, as it happened in the case I have in mind, of the noble old Common- wealth of Massachusetts!
But we have not closed the catalogue yet; there is still an- other, and this by no means a slight, evil, which is caused to the community by prohibitive liquor laws, which might be called, perhaps, the intellectual evil which they work. This is the begetting of the very general horror of wines, spirits, malt liquors, and other drinkables of more or less vinous character, which is allowed to prevail, not only, but is sedulously and per- petually cultivated in certain communities, until very young people are apt to consider themselves as virtuous paragons sur- rounded by alcoholic demons seeking their destruction, whose fault, and not their own, it will be if they tumble. This idea and sentiment are enormously prevalent, thanks to those industrious people the " temperance " reformers (though they insult one of the cardinal virtues by so calling themselves). I can indeed in- stance no severer proof of it than to narrate that, having been so fortunate, in the case of some special investigation then on hand, as to unearth the diary kept by an officer of the Revolution dur- ing the march of Arnold's and Wooster's commands through the snows of the terrible winter of 1775-76 to relieve the army in Canada, and the subsequent retreat in rags, hunger, freezing, and wretchedness, I intrusted its copying to a worthy lady, a de- scendant of the officer who kept the diary. In due time she returned the copy, but wrote me, " I have omitted all references to brandy and eggnog, as not part of our country's history." And yet to me, and I fancy most of us, it was " history "ay, and the " history of our country " too! How those patriots lived through and managed to survive at all the terrors of that winter, certainly was history ; and I for one am thankful that, at least, if there was no food betimes, there were brandy, and an occasional egg-
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nog, for those sturdy and starving patriots! But this worthy lady lived in rural New England, and had been taught from her youth of the terrors and misery that lay hidden not for fools only, but for everybody in a bottle! And she could not see that God's gifts to men sometimes have come to his perishing creatures in the liquor form. The public inconvenience of this belief is not inconsiderable. Not only are its citizens deprived of the sanitary potency of liquor in emergencies (for I have heard apparently sane persons, in a village not a thousand miles from the city of New York, declare that they would rather die than have their lives saved by a glass of liquor), but the youths are taught, not to be virtuous and sober, and to shun drunkenness, but to perse- cute liquor sellers and to waste liquor by emptying it into the gutters : that the unfortunate who drinks himself into imbecility, or into becoming a public nuisance, is not a criminal or a law- breaker, but an example of the wickedness of the hotel keeper and so not the sinner but the sinned against! Not he to be dis- ciplined or chided, but the innocent liquor is to be cursed, and the liquor dealer to be deprived of his property! It would appear to most of us that to preach a little less about the holy horror of rum, and a little more about the political obligation of the citizen to keep himself from drunkenness to notify him that the law locks up the wretched drunkard, not because he is not a citizen who can not drink if he please, and not because liquor is a sinful thing, or because his neighbor has no right to invest his capital, if so pleased, in hogsheads of liquor and to retail it by the glass or spoonful, but because he is drunk, and because a drunkard is a nuisance and a threat to the community would be an experi- ment worth the trying. Another experiment would be to rely upon such an administration of what laws we have as will en- courage temperance by punishing the drunkard, not the liquor which he drinks or the manufacturer or the seller of it, nor yet the community whose misfortune and for whose sins it is that the drunkard is a part of it. We can not reclaim our wayward youth by sending their parents to Sunday school; we can not rid the community of drunkards by refusing to sell liquor to the sober man. But it requires no statute to refuse to sell it to the debau- chee. This land of ours is ruled by law. The trend of progress is toward a larger and a more enlightened, not a lesser and more ignorant liberty; and civilizations move not backward. In the calm eye of the law, the owner of jjipes of liquor is as much entitled to his own as is the owner of a " temperance " newspaper, as long as he injures not his neighbor. He of the wine pipes must not sell to the habitual drunkard, or to the hereditary victim of alcoholism who works damage in his cups; neither shall he of the printing press libel in words him of the wine pipes, or invite
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his fellow-citizens to violence against him or destruction of his worldly goods. For over one and all is the law of the land. Let our youth learn this, and not that others have obligations and stand at their peril, while he alone is free, if he only will sign a pledge and wear a blue ribbon!
In still another way the prohibitive liquor laws have worked, and are still working, hardship to our people. The liquor-drink- ing habit in large and metropolitan cities is palpably on the de- cline. Here the ever-increasing complexity of affairs, the im- mense demand of competition, the necessity of care and vigilance lest one be outrun in the race for success, and the strain of busi- ness methods, render it injudicious to drink much wine or liquor ; large corporations exact a rigid temperance, often total absti- nence, from their officials and employees. Either because edicts of fashion for once have followed the demands of business, or for some other cause it appears to be absolutely no longer fashionable in cities to drink deep or long at table. In the natural course there is reason to believe that this fashion might reach the inte- rior, to prevail there. But, in the towns and cities of the liquor- law-ridden States, the more stringent the ordinances, and the more important and bustling the " smeller," it more and more be- comes a point of self-respect, almost of honor, between man and man, to drink much and often, and liquor drinking increases daily. Even lads of tender years, clubbing together, buying a demijohn of what purports to be something of which they have heard their elders speak, and hiding in some cellar or bedroom, experience all the fearful joys of dissipation! In other interior precincts where there never was much liquor drinking, but where the itinerant reformer stands in lieu of lyceum or theater or as- sembly, the liquor habit will remain about the same, not increas- ing, but not allowed by the reformers to die out and their occu- pation be gone. So the maxim of Horace Greeley, that a habit- ual drunkard is quite as useful a member of society as a tem- perance reformer, remains unerringly true, not only, but he is positively a retarder of public progress. But once let every liquor law be expunged from the statute-books of our American States and the temperance reformer would disappear, the benign influences of the city would spread to the country, liquor drink- ing being no longer a matter of courtesy or self-respect, but an indifferent matter of taste, would decrease, as it always has de- creased in the civilized communities when let alone and to itself. The horror of liquor would disappear, and only the horror of the drunkard would remain. And the enormous gain would not only be the salvage of the money wasted in pretending to enforce in- competent and disrespected laws, but in behalf of public morality, because with no sumi)tuary laws to break, there would be no
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decent and honorable citizens turned into law-breakers ; no per- sonal and paternal statutes to evade^ and so no statute evaders.
But until we wipe out all these present restrictive liquor laws we can not hate the drunkard. We must be charitable with him, even cherish as well as pity him ; we must even respect him as a man who is upholding the liberty of the subject at the expense of his health ; as a sort of public martyr. We must reverse many a popular maxim in his behalf. Instead of " Drunkenness leads to poverty/' or " Drunkenness leads to wretchedness/' we must read it " Poverty leads to drunkenness/' " Wretchedness leads to drunk- enness." Instead of worrying lest the horrible inebriate go home and brain his family and smash his furniture, we must cry, " Poor man, he is out of employment," " Poor man, he has an unhappy home, a shrewish wife and bad children, and there was nothing left him but drink/' " It is not his fault, it is the fault of that horrid liquor seller." And so on, as if the selling of liquor and not the besotting of one's self with liquor, were the crime ; as if the seller and not the drinker were the criminal ; as if one who would not drink could be made a drunkard by the selling of liquor ; or as if the fruits of the earth expressed or distilled were unholy and abhorred, when in any other form they were God's best gifts to man.
Like most admirable servants, liquor is apt to be a bad master if allowed the upper hand or permitted to get into politics. But there are many persons, not habitual drunkards themselves, who actually believe that malarious and impure water is a circulator of disease, but can be disarmed and rendered safe by the dilution with whisky. The boards of health of cities (New York city, for example), in their printed directions to the public for the preven- tion of cholera, advise that the water given to infants and very young children in the heated season be diluted with a few drops of whisky. But liquor laws are legislation, not against sick babies, but against the few drops of whisky which might save their little lives, and if the poor parents can not afford to pay a physician for a slip of paper giving the Latin name of whisky, the poor baby must die, or run the risk of death, by drinking ma- larious water. If there is any such thing as a salutary liquor law, not derived from excise or police jurisdiction, it would be per- haps a statute insuring the purity of liquor ; reviving that old English functionary, the " ale-taster," with his care over all drink- ables publicly offered for sale. This would be a legitimate and a constitutional law, as providing for the public safety (which is, after all is said, the origin and the summit of all laws). There is no greater charm to the tourist in rural England than the cer- tainty that, no matter how small the village through which he passes, he will find at the inn refreshment and comfort, " eatable
�� � ABOLISH ALL PROHIBITIVE LIQUOR LAWS. 591
things to eat and drinkable things to drink." Indeed, the ale- taster was once a public benefactor and more important than the mayor, and such was his benign influence that old Harrison, writ- ing in the sixteenth century, declared that the glory of England was her inns. The roads might be rough and full of highway- men, but at any inn the traveler could take his ease and be sure he would not be poisoned. For four hundred years it has been possible to enter an inn in the smallest and most insignificant rural hamlet in England and get a thimbleful of liquor without peril to one's stomach or to one's self-respect. How is it in those of the United States which prohibit the sale of liquor ? As to one's stomach, I merely copy an item from a local newspaper printed in one of those States (suppressing the localities only) :
" Some recent cases of poisoning hereabouts have brought out the statement that poor whisky is abundant in this city. It is sold principally in the kitchen dives and in places on the outskirts. Some of the whisky, it is said, has been so poor that wholesale dealers have disclaimed all knowledge of having sold it. Some of the unlicensed dealers have been selling ' whisky,' but where obtained it has been one of the mysteries that are impossible to explain. With the poisoning of the three men on Sunday night and the investigations which have followed, some light has been shed upon the subject."
"It was stated in these columns on Monday that there had been a man about selling a receipt for making whisky. Investigation proves that this is so, but it is impossible to tind a liquor dealer who will say he purchased it for five dollars the price asked. This receipt as near as can be ascertained is as follows: One drachm of oil of vitriol or sulphuric acid, six drachms of spirits of turpentine, three drachms of spirits of juniper, six drachms of oil of almonds, and a quart of elderberry wine ; a seductive decoction indeed. These fluids diluted with twenty- four gallons of water will make about twenty-five gallons of whisky, and cost in the neighborhood of one dollar and twenty-five cents, while the same quantity of distilled whisky would cost from forty to seventy-five dollars. Just how much
of a business this man has conducted in is not known, but that he has
been favored with a fairly good trade is not doubted by the regular wholesale
liquor dealers. He has been all through the villages in the and has also
been to ."
So much for the visitor's stomach ; now for his self-respect! As a native of the State most strenuous in its policy of prohibit- ing the sales of liquor, I have been now and again a curious col- lector of the divers and sundry ruses resorted to in evasion of the statutes by its best citizens, and I am able to note the latest as experienced during the present summer. At a certain watering- place hotel within its paternal jurisdiction, guests who desired wine at dinner, or stimulants at other times, were invited to pur- chase a keg of an interesting compound known as root beer. A price for this alleged keg was charged to them on their hotel bill, and they were at liberty to visit the wine room, or to order from the waiters any liquors desired, until this price was exhausted.
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when another keg of root beer was charged to them, and so on! This, of course, is only one of hundreds of such devices, which are the rule and not the exception in the liquor-prohibiting States. And I beg to ask, what respect a State can expect its citizens to have for its laws, or for themselves, when forced to habitually re- sort to a deceit which deceives nobody, in order to live as they see fit and as they have an inalienable right to live ?
Liquor has always properly been, and always properly will be, a subject of revenue, or, as it is called, excise, and this excise is most conveniently levied in the shape of licenses. Of licenses, high and low, high license is doubtless the best for all concerned, as providing cleaner and more sumptuously appointed drinking places, with that modulation and betterment of manners and of speech to which elegance of surroundings will always conduce. But prohibitive liquor laws should be discontinued, because sixty years of certainly faithful trial have shown them to be failures, dangerous to the public peace, the public health, and the public morals ; against public policy as tending to bring all reasonable laws into bad repute, and against absolute right as an interfer- ence of the law merchant with the jurisdiction of the criminal law ; enacted, as criminal laws are enacted, by those who are not supposed to come under their operation.
Much of what has been said of prohibitory liquor laws in this paper might also be said of the usury laws,* which are of the family of crime-creating statutes, which are always readily evaded and which interfere with the market value of the commodity protected. But there is this difference, that usury laws are de- manded by the protected class, while prohibitive liquor laws are not, and never can be.
Admitting freely all that can be said about the horrors which liquor can work, sociologists as well as Samaritans know that no public evil can be dealt with abstractly dragged up by the roots and exterminated in a single swoop of virtue. Sinful as the liquor industry may be, its absolute and sudden annihilation would throw millions out of employment, and put starvation into the room of competence in countless homes, to remain until, by the slow labor of economists and publicists, capital and labor had readjusted themselves to the new condition. And the literal in- terpretation of statutes at present upon the statute-books of cer- tain American States would send fathers of families to State prisons to serve out terms of sixty or a hundred years under cumulative sentences which more than cover the natural lives of men. Fortunately, however, the drinking of liquor does not de-
- In Queen Elizabeth's time the analogy was still more perfect, for the price of liquor
was regulated as the price of money now is sought to be by usury laws by statute.
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stroy either the body or the soul. The hest evidence obtainable by medical industry intimates that, while, as everybody knows, the temperate outlive all other classes, even the habitually intoxi- cated man may, and does, outlive the rigid and inexorable total abstainer who refuses to his organism the stimulant which over- worked or overstrung human systems sometimes insist upon.*
I do not know what evidence can be subpoenaed as to the loss of souls. But, admitting the occasional loss of a soul, the question might arise as to whether a soul could not be saved at too high a price. Should an entire community like the State of Vermont, or of Maine, or of Kansas, or like Boston, or the city of New York, for example, imperil its sanitary existence to save any one given human soul ? Or how large or how small a community should be allotted to peril per soul ? It requires a strong stomach and a tranquil nervous system to absorb ice water, and dyspeptics and excitable persons are not always deserving of death at the hands of the State.
I know that the easy-going humanitarian answer to this is, that all prohibitive liquor policies carry within themselves the seeds of their own dissolution, since they are only agitated in sparsely settled localities, from which, as populations thicken there, they gently disappear. f But, meantime, if the traffic in liquor is dangerous, these policies are working an enormous harm to the communities where they are tolerated. All history proves that there is no institution or system in the world which it has ever been attempted to stifle by legislation which is not to-day as fixed and immutable as the hills. The efforts of the English Puritans to abolish the theater made theatrical performances parcel of English civilization. The attempts of the middle ages, the Inquisition, and the Index, to destroy the printing press made the printing press a necessity of life everywhere. If liquor is dangerous to the United States of America, philanthropists and patriots should be careful how they pass laws against it!
��* I believe the figures are claimed to be as follows : Out of 4,234 cases of mortality from ordinary causes, the lengths of life were :
Temperate livers 62-13 years.
Careless drinkers 59'67
Free drinkers 57-59 "
Habitually intemperate 52-03
Total abstainers 51-22 "
According to a recent report of the British Medical Association, in their journal in the year 1891.
f The little town of Westfield, N. J., has two or three active prohibition societies, and I am told that all the churches (except the Roman Catholic and the Episcopal) preach pro- hibition from their pulpits. Ten years ago, with a population of two thousand, the town cast three hundred prohibition votes ; last year, with a population of thirty-seven hundred, as I am informed, it cast just fourtsf n! VOL. XLIV. 45