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" The justest laws are the truest." — Epictetus. 
 
 " Civil liberty is the not being restrained by any law, but 
 which conduces in a greater degree to the public welfare." — 
 Paley. 
 
 " Good and stable government is simply or nearly impossible, 
 unless the fundamentals of political science be known hy the 
 bulk of the people." — Hobbes. 
 
THE MORALITY 
 
 OF 
 
 Prohibitory Liquor Laws. 
 
 ^.n..|500a2. 
 
 BY y 
 
 1^ 
 
 WILLIAM B. WEEDEN. 
 
 BOSTON: 
 
 ROBERTS BROTHERS. 
 1875. 
 
H V 5 o ^ c^ 
 
 Entered according to Act of Congress, in the year 1875, by 
 
 ROBERTS BROTHERS, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Cambridge ; 
 Press of John Wilson &= Son. 
 
PREFACE. 
 
 'T^HE matter of these pages was suggested in 
 a paper read to the Unitarian National 
 Conference at Saratoga. A prominent politician, 
 a sincere and eminent advocate of prohibition, 
 said to the writer directly, " This is an old 
 story of yours ; it is worn threadbare." Inas- 
 much as several able members of that capable 
 association, men versed in the literature of law 
 and social science, had said that the argument, 
 whatever its merits, was novel and original, 
 the remark of the politician set the writer into 
 a train of thinking. The able men knew more 
 of the philosophy of law, but the politician 
 represented more people. It is perhaps this 
 stolid indifference among persons holding high 
 public trusts to the causes, the underlying 
 principles, and the results of their own action, 
 which has led the writer to develop his theme 
 and bring it before the whole public. The 
 
6 PREFACE. 
 
 subject is so important in all its bearings, that 
 any sincere study of it can do no harm, and must 
 be welcomed by all thoughtful persons. 
 
 The writer believes that the whole fabric of 
 our legal and political action has been strained 
 and injured by the institution and administra- 
 tion of these liquor laws. He believes that 
 one of the first and most important steps in the 
 much talked about reform of civil government 
 must be, to turn the humane temperance im- 
 pulse away from its abnormal action in law and 
 in the state, and to give it natural play in the 
 ethical improvement of the individual man and 
 of society. If these pages contain any facts, or 
 show any reasons which may help to forward 
 this issue, his labor has not been in vain. 
 
 W. B. W. 
 
 Providence, K.I., January, 1875. 
 
CONTENTS. 
 
 Page 
 
 Introductory 9 
 
 Temperance and Abstinence 31 
 
 The Working of Prohibition 56 
 
 The Grounds of Prohibition 99 
 
 Prohibition and Regulation 121 
 
 Another System 158 
 
 Immoral Law-Making 179 
 
INTRODUCTOEY. 
 
 'T^HIS is not an argument for or against total 
 abstinence. The movement for temperance^ 
 reform within the present century has divided 
 the American people into three classes : those 
 who refuse, those who use, and those who 
 abuse liquors ; or, to characterize them in the 
 briefest terms, abstinents, temperates, and in- 
 temperates. The distinction between absti- 
 nence and temperance is pure matter of fact, 
 which the words embody in themselves. Tem- 
 perance and intemperance in the use of liquors 
 are as old as the vine itself. Americans, with 
 their natural love of association and organized 
 action, formed societies rather more than fifty 
 years ago to withstand intemperance. ^ 
 
 "As soon as several of the inhabitants of the 
 United States have taken up an opinion or a feeling 
 1* 
 
10 INTRO D UCTOR K 
 
 which they wish to promote in the world, they look 
 out for mutual assistance ; and as soon as they have 
 found each other out, they combine. From that 
 moment they are no longer isolated men, but a 
 power seen from afar, whose actions serve for an 
 example, and whose language is listened to. The 
 first time I heard in the United States that a hun- 
 dred thousand men had bound themselves publicly 
 to abstain from spirituous liquors, it appeared to me 
 more like a joke than a serious engagement; and I 
 did not at once perceive why these temperate citi- 
 zens could not content themselves with drinking 
 water by their own firesides. I at last understood 
 that these hundred thousand Americans, alarmed by 
 the progress of drunkenness around them, had made 
 up their minds to patronize temperance. They 
 acted just in the same way as a man of high rank 
 who should dress very plainly, in order to inspire 
 the humbler orders with a contempt of luxury." — 
 Democracy in America, By De Tocqueville. Bow- 
 en's Trans. Vol. ii. 133. 
 
 This power of association is natural and 
 healthful in our country. As the reform pro- 
 gressed, the term " temperance," together with 
 the idea of temperance, as it is applied to all 
 other appetites, fell into abeyance. Total ab- 
 
INTRODUCTORY. 11 
 
 'stinence and teetotalism became the watch- 
 words of the reformers. 
 
 This distinction between temperance and 
 abstinence is now well ingrained in mature 
 individnals. The writer accepts this social fact 
 as he finds it, and proposes no direct argu- 
 ment on this issue. He would not touch it 
 indirectly, if the main question did not some- 
 times demand it. The enthusiasm of the 
 abstinents, in its personal and legitimate ex- 
 pression, is not to be trifled with, nor even 
 argued with. It is a noble passion, ever ele- 
 vating, though semetimes narrowing the man, 
 and is entitled to respect and affectionate re- 
 gard from all of us. The man or woman 
 who deliberately abandons liquors is generally 
 moved from the depths of the soul. Those 
 who have suffered, not in themselves, but in 
 the wasted lives of their friends, cherish a 
 passion for abstinence, which is beyond and 
 above criticism. We say again, that we honor 
 this emotion as one of the grand forces of 
 humanity. 
 
12 INTRODUCTORY. 
 
 The moral influence of abstinents should 
 likewise have the fullest play. The personal 
 power of one who refuses an indulgence is the 
 strongest motive to influence the self-indul- 
 gent. Society should favor this power of the 
 individual by every means possible. 
 
 It is the civic attitude — using this term in 
 the lack of a better — of the abstinents which 
 the writer would call into the discussion. We 
 would ask all abstinents to consider carefully 
 their bearing toward society in its forms of law 
 and civil government. 
 
 By as much as we exalt and dignify the moral 
 power of the abstinents, by so much do we 
 dread its waste or misuse in the struggle to 
 maintain laws faulty in conception, impossible in 
 execution. We do not expect to convince the 
 old teetotal war-horses, who started in youth 
 determined to force law into total abstinence. 
 These men, made morbid by their horror of 
 drink and by years of contest with reckless rum- 
 sellers, have lost the sense of justice which keeps 
 freedom alive. An old mechanic, whose thumb 
 
INTRO D UCTOR Y. 13 
 
 is made callous by long use of his tool, no longer 
 guides it by the quick and supple sense which 
 controlled it in his youth ; he moves it by an 
 old instinct ; so these teetotalers, blunted in 
 the struggle, fail to find tyranny in any law 
 against rum, or moral perversion in any legal 
 wrong which aims at right. A younger genera- 
 tion is coming forward, who see the fearful 
 strain upon law which our national life-struggle 
 and our material prosperity have brought upon 
 us. We would ask of them to consider from 
 their own point of view their attitude toward 
 law, — not any particular statute, but those 
 great principles of government which hold so- 
 ciety together. 
 
 The civic attitude of the abstinents may be 
 briefly stated thus. Liquor is a poison : always 
 dangerous, it is positively bad for healthy 
 people. To use it is to incur a fearful risk for 
 ourselves, to injure others, to injure the state ; 
 let us stop the use of it. We are aware that not 
 all abstinents claim that liquor is a poison, but 
 tliis is the attitude of the party as a whole. Soci- 
 
14 INTRODUCTORY. 
 
 ety in mass never would say outright that liquor 
 was a poison, and was always bad. Its course 
 was curiously inconsistent. Thirty to forty 
 years ago New England was greatly shaken by 
 the total abstinence movement. The imagina- 
 tion of the people was powerfully moved, and 
 their moral sense was quickened into new ac- 
 tion. Public sentiment was so strong that absti- 
 nence became common and temperance almost 
 universal in the villages. In cities the current 
 was in the same direction, though less decided, 
 and the intemperate drinkers became few. The 
 reformers then cherished the hope that a new 
 generation, educated under the abstinence prin- 
 ciple, would further strengthen public senti- 
 ment ; that the use of liquors would almost or 
 quite cease among decent people ; and that the 
 whole moral force of the better disposed ele- 
 ments of society would restrain the few who 
 could not control their passions, or the intem- 
 perates. 
 
 This was too slow a process for the more 
 ardent of the abstinents. They determined to 
 
INTRODUCTORY. 15 
 
 turn the force already acquired into a new chan- 
 nel, and to bring the whole power of society, 
 through the administration of law, to bear on 
 the use of liquors. This system culminated in 
 the Maine Law, so called, which, in its various 
 forms of prohibition and execution by state con- 
 stabularies, has dragged its way through legis- 
 latures and courts for more than twenty years. 
 
 How were these laws made, and how ad-' 
 ministered ? The abstinents in New England, 
 where these laws have developed most strongly, 
 were never a majority.^ The main body of the 
 
 1 We seldom realize how small a number of voters actu- 
 ally believe in prohibitory law. We cite from the " New York 
 Evening Post " : — 
 
 " One of the points in political discussion seems to have been 
 pretty well settled by the recent elections ; namely, that the 
 people do not approve of sumptuary laws, and that no party 
 of any consequence can be organized upon the policy of prohib- 
 iting instead of regulating the sale of intoxicating liquors. We 
 have not yet the full returns of the vote in this State, but from 
 the indications we judge that the prohibitory vote amounted 
 to only a few thousands, although tlie prohibitory candidate 
 for governor, Mr. Myron H. Clark, was formerly an influential 
 politician and once held the governor's office. In Massachu- 
 setts Mr. Talbot was defeated, although the rest of the Kepub- 
 lican State ticket received substantial majorities of the popular 
 vote, because he is an uncompromising prohibitionist, and 
 would have stood in the way of modifying the present prohib- 
 
16 INTRODUCTORY. 
 
 people were temperates, and we mean to include 
 in this class every one who uses and does not 
 abuse liquors, whether by the teaspoonf ul or by 
 the glass. After the first excitement of the 
 Washingtonian reform was over, the moderate 
 men would not admit in fact that the use of 
 liquors was always bad. They would not even 
 submit to strict medical rule. In conduct each 
 man should be his own physician, and prescribe 
 when the little for the stomach's sake was nec- 
 essary. This was a freeman's privilege, and 
 they would keep it. We are not speaking of 
 social drinkers nor tippling convalescents, but 
 of the great body of sober, discreet citizens, who 
 were neither abstinents nor intemperates. Their 
 votes have decided all the prohibitory issues. 
 These men seemed to move in a sort of intellect- 
 ual stupor, brought on by the moral enthusiasm 
 of the abstinents and their own contemplation 
 
 itory law. In Ohio, with the aid of the women's temperance 
 crusade, the prohibitory vote was less than ten thousand. And, 
 last and least of the instances we now recall, in Illinois, where 
 the total vote for State officers was more than three hundred 
 thousand, the highest vote for a candidate of the proliibition- 
 ists was 1,446, or less than half of one per cent." 
 
INTRODUCTORY. 17 
 
 of tlie horrors of intemperance. Any thing to 
 stop traffic in the accursed stuff, the abstinents 
 cried out. Law after law was enacted in differ- 
 ent States ; the temperates bhndly voting what- 
 ever was wanted. Lawyers shook their heads, 
 and physicians doubted, but the current moved 
 on. Possibly the legal outlet afforded a rehef 
 from the excitement of the moral impulse under 
 which the community labored. To put one 
 moral reform under control of government and 
 get it out of the daily duty of the individual, 
 seemed a gain to some short-sighted persons. 
 Nevertheless, steady-minded people could not 
 vote it a poison. The statutes were all arranged 
 with contrivances to allow the use under one 
 and another sort of fiction. The contrivances 
 and evasions passed into ordinary customs, while 
 the statutes were constantly growing more strin- 
 gent technically. 
 
 The abstinents, in their civic attitude, as we 
 term it, took nearly the same ground which 
 of old the church held in its administration of 
 theology through its relation with the state. It 
 
18 INTRODUCTORY. 
 
 was evil to hold a wrong opinion in theology, a 
 heresy; it injured the holder, it injured his 
 neighbor, injured the state. It seemed good to 
 authority in the olden time to restrain, imprison, 
 even to kill the heretic. Modern liberty would 
 say, the bad opinion, the heresy, will work itself 
 out sooner if let alone by authority. We are 
 aware some abstinents would say they mean to 
 restrain the individual not in his own rights of 
 liberty, but in his power to injure others, when 
 they make a prohibitory statute. We hope to 
 show farther on, that they must begin by tyr- 
 anny over the individual, and we assume that 
 position now. No teetotaler ever viewed the 
 drunkard or the drinking corruption with greater 
 horror than Loyola and Torquemada saw the 
 heretic and the sinful results of heresy. To 
 them, any use of power any force which we 
 call tyranny, was better than the suJfferance of 
 wrong belief, which would carry souls to hell. 
 It is only latel}^ that civil government has aban- 
 doned that control over the opinions of the in- 
 dividual. The principle was not confined to 
 
INTRODUCTORY. 19 
 
 any form of government ; it belonged to human 
 society, and dwelt alike in theocracy, papacy, 
 and constitutionally-established church. Our 
 puritan fathers did their full share of this sort 
 of legal compulsion for moral ends. The right 
 to drink or not drink liquors is an individual 
 right, just as much as eating is individual, though 
 the whole population should hover between dys- 
 pepsy and apoplexy. 
 
 However unwise the abstinents might be as 
 citizens, they were at least consistent with their 
 own moral purpose and intention toward the 
 state. If every one had thought just as they 
 thought, a statute of prohibition might have 
 been maintained. If a very large majority had 
 sincerely held the abstinent view, and had 
 effectively abstained from any use of liquors, 
 the law could have been administered as well as 
 other laws on which the whole community agree. 
 The law against killing, for example, is not per- 
 fect ; but it is maintained, and even the classes 
 restrained would hardly think of repealing it. 
 
 There was no majority either for abstinence 
 
20 INTRODUCTORY, 
 
 or for abusing drink. There were small mi- 
 norities at either end of the moral and social 
 scale ; these classes knew their own mind. 
 The abstinents said, in the old Mosaic spirit, 
 " Thou shalt not drink," ^ and enforced the pre- 
 cept by their own example. The intemperates 
 said, " Drink, we will." Either of these classes, 
 generally speaking, cared more for their own will 
 in this question than for any other issue of 
 politics. It was a political motive to them, 
 because the consciousness of each individual 
 was so much excited in opposite directions : one 
 toward drink, the other toward abstinence. 
 The question never came to a square issue as 
 other political topics have done in our history. 
 Between the two minorities was an overwhelm- 
 ing majority of temperates. This majority made 
 the main bulk of the political parties, — Whig, 
 Anti-slavery, Democrat, or Republican. The 
 
 1 There is no essential reason why the word "drink" or 
 "drinking habits" should be referred to alcoholic liquors 
 rather than to other liquids. This use is so well estabUslied, 
 and will save so much circumlocution, that the writer will 
 accept it, though it is vulgar. 
 
INTRODUCTORY. 21 
 
 compact body of abstinence voters brought a 
 terrible pressure to bear on this great mass of 
 citizens always moving at half-tide on the moral 
 question of temperance or abstinence. These 
 temperates had political motives strong in them- 
 selves and in their kind. The Whig desired his 
 measures, the Democrat wanted his, the Repub- 
 lican would prohibit slavery, the Conservative 
 would save the Union, and all were working 
 through that common machinery of parties and 
 political agitation which must always work out 
 pohtico-moral issues. Between these vari- 
 ous and fiery political passions, the earnest ab- 
 stinents played about, log-rolling hither and 
 thither. When there was no state-movement 
 there wouldbe small " pipe-laying "in the towns ; 
 combinations with a fraction of either party for 
 or against an individual candidate ; voting tick- 
 ets split in such a manner as to refract a shade 
 of one partisan against a bit of the shadow of 
 another aspirant, until the political vision of a 
 plain man was shaken into all the colors of the 
 kaleidoscope. 
 
22 INTRODUCTORY. 
 
 It is not too much to say that for a generation 
 every decent politician, clear-headed enough to 
 see the results of politics, has lived in mortal 
 fear of '' temperance " and liquor-dealing pol- 
 icy. Any disinterested party leader will say, 
 as numbers have told the writer, that politics 
 were corrupted and dragged into the mire by 
 these COD ten ding agitators. It is well for mor- 
 alists to remember, that while we cry out for 
 statesmen, and censure mere politicians, it is by 
 politicians only that state movements are worked 
 out. Statesmen are rare in any country and 
 any time, and they reach the citizen and voter 
 only by the help of politicians. If Abraham 
 Lincoln had not been an adroit politician, as 
 well as a far-seeing statesman, he never would 
 have led the American people through a strug- 
 gle as great in its moral issues as it was in its 
 political results. 
 
 Abstinents could not see this principle, — 
 would not see it : they were intent on a great 
 moral purpose. What mattered a little more or 
 little less corruption, where all was corrupt? 
 
INTRODUCTORY. ^16 
 
 Your transcendental moralist, breathing the 
 eternal ether of goodness, sees no practical dif- 
 ference between gold alloyed with silver and 
 gold alloyed with lead ; they are all one in the 
 market where all metals are as dross. The 
 fierce abstinent said to the temperate, Whatever 
 you claim for your own individual right, do you 
 believe the state has a right to make drunkards, 
 to make paupers and criminals, to license in- 
 iquity ? It was decent to answer. No. Politically 
 stupid as it was, legally illogical and dogmatic 
 as it was, it became respectable for the average 
 voter to answer, No. '' Then vote prohibition," 
 the men who were in earnest said, and as ear- 
 nestness always carries force, they had their 
 way. The men who should have known better 
 had then' minds filled by other and natural 
 political interests, so they never actually grap- 
 pled with this legislative liquor agitation as 
 its importance demanded. Besides, there were 
 many motives combining to bewilder the tem- 
 perance voter. If he did not like the political 
 issue offered by the abstinent, he liked still less 
 
24 INTRODUCTORY. 
 
 to be classed with the liquor-dealing, liquor- 
 guzzling interest. If not quite harmonizing 
 with the one, he could not, consistently with his 
 own average action, go with the other. Then, 
 as mentioned above, there was a sort of bewil- 
 dered laissez-faire morality in putting the dread- 
 ful question away from the individual. To 
 consolidate the lazy, half-hearted emotion which 
 was excited by the appeals of abstinents and 
 abstaining inebriates into some sort of law, 
 which the state should be responsible for, and 
 which society might possibly work out, was to 
 get rid of an ugly question within. 
 
 Thus statute after statute was invented or 
 evolved ; broken, tinkered, and refitted ; dam- 
 aged, whetted, and repaired, through a sicken- 
 ing cycle of political history. 
 
 No one changed his habits by reason of his 
 vote for a liquor law. There was no moral 
 responsibility for the rank and file in voting at 
 the polls. A voted for Jones because he was 
 " sound on the goose," and Jones was commit- 
 ted to a small caucus of abstinence managers. 
 
INTRODUCTORY. 25 
 
 B voted for Jones because it was respectable, 
 and our church generally supported him. Thus 
 Jones, and more Joneses, big and little, went 
 up to the legislature, politically drugged ; sense- 
 less under an anaesthetic worse than opium or 
 brandy. To corrupt a citizen is bad enough ; 
 to corrupt a legislature is to spoil the chief 
 source of citizens, — the laws under which they 
 develop. 
 
 There was no strict moral accountability in it 
 all. Neither A nor B changed his habits be- 
 cause he had voted for Jones, nor did Jones 
 change his. Each ordered his case of wine or 
 bought his bottle of whiskey just as coolly as if 
 he had not stood for the principle of absolute 
 prohibition at the polls. ' If the laws meant any 
 thing, if there was any thing under the prohibi- 
 tion talk, the meaning was that the traffic should 
 be stopped. Perhaps the voter went to his 
 apothecary's and certified to a constructive lie, 
 that he wanted a bottle of liquor " for medici- 
 nal or mechanical use," and piously thanked 
 heaven he was not like the vagabond seller or 
 
26 INTRODUCTORY. 
 
 drinker, who broke the law at the corner. Yet 
 A and B knew, Jones knew ; Jones knew that 
 A and B knew when they voted that, they never 
 meant to execute the statute as they enforced 
 the laws against stealing. Suppose Jones had 
 been caught breaking a bank vault, after legislat- 
 ing on robbery, would any sane voter think of 
 sending him to make laws again ? 
 
 It is this befogging of the political intellect, 
 this stupefaction of the moral consciousness by 
 drugging it with political impossibility ; it is 
 these things that the writer would ask candid 
 and thoughtful persons to consider. We hold 
 that the abstinents, inspired by a noble and 
 passionate emotion, capable of enormous moral 
 influence, have prostituted it in chasing an ignis 
 fatuus through the mire of politics. We hold 
 that the temperates, halting in their opinions, 
 inconstant in moral purpose, bewildered in po- 
 litical sense, have vainly tried to impose a des- 
 potism upon citizens equal before the law. We 
 lay down the following propositions; — 
 
INTRODUCTORY. 27 
 
 I. Temperance and abstinence in regard to 
 liquors are not similar nor convertible terms. 
 They represent two distinct principles of living, 
 however the}^ may be named. These two prin- 
 ciples should be equal before the law of the 
 state. 
 
 II. The true province of legislation lies in 
 the abuse of liquors, or in the abnse of the 
 drinker. The use of liquors belongs to the 
 individual, and lies beyond legislation. 
 
 III. Prohibition is based on the theory that 
 all use of liquors, except for medicinal, mechani- 
 cal, chemical, or artistic purposes, is wrong. 
 This theory cannot be established either by 
 science 1 or in the facts of the living of the 
 people. A law so badly conceived cannot be 
 executed. 
 
 lY. Prohibition refuses to recognize the natu- 
 ral laws, stated above in L, and it has failed. 
 The statutes are not executed in any fair sense, 
 or as other penal laws are executed. 
 
 1 See Appendix. We have not exhausted a topic which 
 would require a volume ; but the reader will find ample proofs 
 of this position, drawn from unquestioned scientific authorities. 
 
28 INTRODUCTORY. 
 
 V. Laws ill grounded and ill executed cause 
 the worst immorality in the state. 
 
 The writer would gladly have treated the 
 subject in the order of the foregoing analysis. 
 To his mind, the reasons which obtain against 
 prohibition are inherent, growing out of the 
 nature of the system itself. But long experi- 
 ence has established the truth, that the most 
 effective mode of discussion is to state the facts, 
 then the theories and expositions which those 
 facts suggest. 
 
 We shall, therefore, state the principles of 
 temperance and abstinence which issue in the 
 theories of license and prohibition; and give 
 some of the most essential facts of prohibitory 
 legislation as they have occurred. 
 
 We will then review the claims of prohibi- 
 tion from the stand-point of those who made 
 and sustain the laws ; and afterward consider 
 the principles of prohibition and regulation from 
 our own point of view. 
 
 We shall then detail a better system, or one 
 which, in our opinion, has a fair chance of suc- 
 cess. 
 
INTRODUCTORY. 29 
 
 Lastly, we shall examine the whole matter of 
 this legislation in the light of the harm it has 
 done, or from the ground of that morality 
 which is the basis of all law. 
 
TEMPERANCE AND ABSTINENCE. 
 
 'T^HE writer has been publicly censured for 
 his use of the word " temperance " as dis- 
 tinguished from '' abstinence." ^ The dispute 
 shows that the ideas embodied in the words are 
 ill-defined and not clearly established in the 
 minds of many who use them. We believe that 
 the moral state, or, as our French friends would 
 say, the morale of society, will be bettered when 
 all interested settle and define their own mean- 
 ing and their own ^actice regarding the use 
 of liquors. If society means temperance, let 
 it say so ; if it means abstinence, let it say so ; 
 nothing is to be gained by substituting the one 
 idea or word for the other. 
 
 Shakspeare always uses the word in the mean- 
 ing of the modern term, '•'- self-control," apply- 
 
32 PROHIBITORY LIQUOR LAW. 
 
 ing it sometimes to all the passions and again 
 to the appetites. 
 
 " What pleasure was he given to?" 
 
 "Rather rejoicing to see another merry than 
 merry at any thing which professed to make him 
 rejoice; a gentleman of all temperance^ ^ 
 
 Neither does the solid English of King James's 
 version of the Bible ever show any confusion of 
 these terms. 
 
 "And as he reasoned of righteousness, temperance^ 
 and judgment to come, Felix trembled."^ 
 
 "But the fruit of the spirit is love, joy, peace, 
 long-suffering, gentleness, goodness, faith, meekness, 
 tem.perance ; against such there is no law."^ 
 
 And from the opposite direction, St. Peter 
 indicates his notion of temperance. 
 
 "For the time past of our life may suffice us to 
 have wrought the will of the Gentiles, when we 
 walked in lasciviousness, lusts, excess of wine." ^ . . . 
 
 The following citations indicate the drift of 
 the word, which, from the control of all the 
 passions, was rather limited to the three master- 
 
 i Measure for Measure, iii. 3. ^ Acts, xxiv. 25. 
 
 3 Gal. V. 23. 4 1 Peter, iv. 3. 
 
 \ 
 
TEMPERANCE AND ABSTINENCE. 33 
 
 ing appetites of the flesh, and gradually was 
 
 applied to the desires of eating and drinldng 
 
 almost entirely : — 
 
 " But when strong passion or "weake fleshlinesse 
 Would from the right way seeke to draw him wide, 
 He would through temperance and stedfastnesse, 
 Teach him the weak to strengthen, and the strong 
 suppress." 
 
 Spenser, F«ne Queene, II. c. 4. 
 
 "This blessed company of virtues, in this wise 
 assembled, followeth temperance., as a sad and dis- 
 creet matron and reverent governess, awaiting dili- 
 gently, that in any wise voluptie or concupiscence 
 have no pre-eminence in the soul of man." — Sir T. 
 Elyot, The Governor. 
 
 "For virtue (quoth Ariston the Chian), which 
 concerneth and considereth what we ought either 
 to do or not to do, beareth the name of prudence ; 
 when it ruleth and ordereth our lust or concupis- 
 cence, limiting out a certain measure and lawful 
 proportion of time unto pleasures, it is called tem- 
 perance.^'' — Holland's Plutarch. 
 
 *' Drink not the third glass, which thou canst not tame, 
 When once it is within thee ; but before 
 Mayst rule it as thou list." 
 
 Geo. Hekbert : The Church Porch. 
 
 " Temperance permits us to take meat and drink 
 not only as physic for hunger and thirst, but also 
 2* c 
 
*> 
 
 34 PROHIBITORY LIQUOR LAW. 
 
 as an innocent cordial and fortifier against the evils 
 of life, or even sometimes, reason not refusing that 
 liberty, merely as a matter of pleasure." —=- Wollas- 
 TON, Religion of Nature. 
 
 *' But knowledge is as food, and needs no less 
 Her temperance over appetite, to know 
 In measure what the mind may well contain." 
 
 Faradise Lost. 
 
 Addison is discoursing upon eating and drink- 
 ing when he says : — 
 
 "It is impossible to lay down any determinate 
 rule for temperance^ because what is luxury in one 
 may be temj^erance in another."^ 
 
 Hardly any of us would accept Addison for 
 a guide in this direction ; but his literary sense 
 is always sure and safe. 
 
 Old Elyot defines abstinence so severely, that 
 it would deprive our total abstinence friends of 
 the virtue of their abnegation while a prohibit- 
 ory law is in force. 
 
 ^'Abstinence is whereby a man refraineth from 
 any thing which he may lawfully take." 
 
 Cowper, in more modern thought, expresses 
 1 Spectator, 195. 
 
TEMPERANCE AND ABSTINENCE. 35 
 
 the plain sense of the word as it prevails in our 
 daily use : — 
 
 *' Caird to the temple of impure delight, 
 He that abstains, and he alone, does right." 
 
 This is the common sense of Christianity at 
 this moment. If a thing is bad in itself, let it 
 alone ; if a thing is necessary in reasonable liv- 
 ing, then it is not bad. The contrast between 
 the two words is sharply drawn by Gibbon in 
 his portrait of the philosopher and ascetic em- 
 peror, Julian ; — 
 
 " The temperance which adorned the severe man- 
 ners of the soldier and philosopher was connected 
 with some strict and frivolous rules of religious 
 abstinence^ and it was in honor of Pan . . . that 
 Jidian, on particular days, denied himself the use 
 of some particular food." 
 
 If there is any other use of the words in 
 standard writers previous to this century, or 
 before the abstinence reform began, the writer 
 in diligent search has been unable to find it. 
 The two principles are different, and the re- 
 formers were wise when they abandoned the 
 
36 PROHIBITORY LIQUOR LAW. 
 
 great word " temperance," which is general, and 
 laid their demands on the limited virtue of 
 "abstinence," which is more easily defined and 
 capable of stricter enforcement. But having 
 changed the basis of the regimen, it is impossi- 
 ble to claim both words for the one system. 
 Else why was " abstinence " substituted, and 
 riveted down by the binding adjective total? 
 
 Abstinence is a sound virtue, but restricted ; 
 it is in itself a passion, a strong, narrow motive, 
 limited, from the nature of the case. To put 
 it into the place of temperance, which controls 
 all the passions as well as appetites, is like put- 
 ting a shrivelled and ascetic monk into the 
 form of the wide-natured Bayard or Sidney. 
 These exclusive and dogmatic traits beget a 
 certain arrogance in the abstinent party, which 
 it behooves all true men to repel, and to force 
 back into the region of impertinence, where it 
 belongs. 
 
 When the writer read his paper at Sara- 
 toga, directed against prohibitory laws, but not 
 against temperance or abstinence, on coming 
 
TEMPERANCE AND ABSTINENCE. 37 
 
 back to the floor of the convention, a person in 
 the next seat said to him, " You mean to kick 
 up a row, I suppose. You've no principle 
 about it." The man was a stranger, and judg- 
 ing from appearance, decent enough in the 
 ordinary relations of life. There was nothing 
 in the character of the essay, and the writer's 
 wife assures, him there is nothing in his per- 
 sonal make-up, which should lead a stranger to 
 suppose that he was an unprincipled man in 
 any relation, however mistaken he might be. 
 If he had offered a bank-note at the United 
 States Hotel, and had argued it was good, even 
 though it should finally have been proven to be 
 bad, strangers would liardl}^ have thought it 
 necessarv to assume that he was utterino- coun- 
 terfeit money without principle. This worthy 
 stranger had schooled himself into the notion 
 that one virtue was all virtue, and that any 
 person differing must, in consequence, be a bad 
 man, whatever his life might be. That is ex- 
 actly what abstinence is not, by any ride of 
 philosophy ever invented. It is the result of a 
 
38 PROHIBITORY LIQUOR LAW. 
 
 powerful feeling, the reaction from one dan- 
 gerous appetite ; it is not an Aaron's rod which 
 shall swallow up every other power in human 
 nature. 
 
 We are not striving to make points against 
 abstinence. The writer thoroughly believes 
 that good morals will be advanced when wor- 
 thy men clarify their ideas and bring their 
 principles to the bar of common reason. We, 
 who hold to the doctrine of temperance, are 
 entitled to decent respect from the abstinents 
 in the discussion, and we will have it. The 
 burden of proof is not yet removed from the 
 abstinents ; they have never yet reformed a so- 
 ciety and brought it into such practical accord 
 with their system that they can claim that 
 system to be the only rule of life, and then 
 abuse every person who differs from their 
 opinion. 
 
 Much has been accomplished by the total 
 abstinence reform in New England; whether 
 some similar results could not have been 
 brought about by simpler means is matter of 
 
TEMPERANCE AND ABSTINENCE. 39 
 
 doubt. We do not mean to argue by implica- 
 tion against the system ; we only suggest that 
 it is not the only method of temperance, and 
 should at least be modest until it shows a 
 society reasonably reformed, and not held in 
 the grip of a tyrannical law, under which it 
 writhes and shrinks. Plenty of facts illustrate 
 this individual and exceptional character of the 
 abstinence system. It has no social force ex- 
 cept through tyranny, as we shall prove farther 
 on. If abstinence were the best living, then its 
 votaries should live by themselves. Accord- 
 ingly they tried '' temperance hotels." They 
 all failed. If abstinence were the safest living, 
 then a life insurance association on that basis 
 ought to be the best. The Phoenix Company 
 of Hartford attempted to found its business on 
 totally abstinent lives. It was ably managed, 
 but languished. The same managers changed 
 the basis to " temperate " lives, and achieved a 
 great success. We can learn of no other ex- 
 periment where any company confined itself to 
 insuring abstinents. 
 
40 PROHIBITORY LIQUOR LAW, 
 
 No greater reform than the change made in 
 the drinking habits of the upper classes of 
 England, has ever been perfected. It is not 
 necessary to go back to Fielding, with his 
 Squire Westerns and drinking chaplains. Take 
 the testimony of one whose life reached over 
 into our own time. Lord Brougham is writing 
 of the scenes at the funeral of his maternal 
 grandfather. These persons were the better 
 sort of people in northern England and south- 
 ern Scotland. Brougham's mother was the sis- 
 ter of the historian Robertson : — 
 
 " The Duke of Norfolk began the toasts at the 
 funeral. Many toasts followed. The guests drank 
 long and deeply. The funeral then proceeded on 
 its way to the parish church . . . the roacl winding 
 along the steep banks of the river Eamont. Ar- 
 rived at the church, the hearse was met by the 
 rector, but the coffin had disappeared. The shock 
 was enough to sober the merry mourners. On 
 searching back, the coffin was discovered in the 
 river, into which it had fallen, pitched down the 
 steep bank. . , . The shock and the scandal pro- 
 duced by all this had the effect not only of sobering 
 everybody, but of putting an end to such disgrace- 
 
TEMPERANCE AND ABSTINENCE. 41 
 
 ful orgies in the county for the future." — X(/e and 
 Times of Lord Brougham., by himself. I. 19. 
 
 An Irish wake and funeral had a similar 
 accident in the suburbs of Providence not 
 long since, except that they were lucky euough 
 to land the dead subject on a hard turnpike 
 road, and not at the bottom of a river. 
 
 Take Brougham's own experience when yacht- 
 insc amonsr the Western Islands about the be- 
 ginning of this century : — 
 
 " Every morning we shoot grouse, hares, snipes, 
 and deer, till five o'clock, then eat the most lux- 
 urious dinners of game and fish, drinking claret, 
 champagne, hermitage, and hock ; at night we are 
 uniformly and universally dead (drunk). Your 
 humble servant being in the chair {ex officio)., 
 does his best, and, having a good capacity enough 
 for wine, does odd enough things. Yesterday our 
 mess fell off; Campbell and I and two natives set 
 into it, and among four had twelve port bottles; 
 the natives and Bob being stowed away, I fin- 
 ished another bottle and a half of port with an 
 old exciseman, major of the volunteers. This 
 morning I found all Stornaway in full tongue at 
 my astonishing feat; went to the moors, walked 
 
42 PROHIBITORY LIQUOR LAW. - 
 
 it off, and killed a brace of hares at one dis- 
 charge. 
 
 (Signed) Hei^ry Brougham." 
 
 Life and Times, I., 85. 
 
 In England, to-day, the nobles, gentry, com- 
 mercial, professional, and upper classes gen- 
 erally, with the better sort of workingmen, 
 are as temperate as any equal number of 
 people in any country ; we should ourselves 
 think they are more temperate. They use 
 liquors socially ; but the abuse is rare. It is 
 not decent now for a gentleman to be drunk, 
 — and by gentleman we mean a dignified 
 man ; a little man or a workingman may be a 
 man of dignity ; but one hundred years since, 
 as Brougham's letter to his friends at home, 
 as well as all literature, shows, it was a very 
 respectable thing for a young man to exhibit 
 the powers of his body in a struggle with the 
 bottle, or such a number of bottles as he was 
 equal to. Prohibitory laws have not changed 
 these people; nor has the feeling of total ab- 
 stinence worked the change in the habits and 
 
TEMPERANCE AND ABSTINENCE. 43 
 
 tone of the aristocracy. The whole bearing 
 of society has changed ; and temperance in 
 every appetite has become the practice as well 
 as the aspiration of those persons whose social 
 position makes them a law unto themselves. 
 Compare the sovereigns of the Teutonic 
 races two centuries ago with those of this 
 time. In this case kings are types of their 
 times. New vices have been developed in 
 modern times ; but the strength of many 
 old ones has been subdued. Material wealth 
 and comfort have increased so rapidly, and 
 diffused themselves so much, that excess of 
 appetite is not now the main desire of man, 
 as it often was in a coarser time. To con- 
 trol the appetites in every direction, to practise 
 a balanced temperance, is the aspiration of 
 large classes of society ; and in England it 
 has become the practice of those we have 
 mentioned. 
 
 Arthur Arnold, in the "Fortnightly," shows 
 that England is much more temperate than 
 she was a century since : — 
 
44 PROHIBITORY LIQUOR LAW. 
 
 " We do not, in the reign of Queen Victoria, con- 
 sume one-half as much beer as we did in that of 
 Queen Anne. The average consumption of malt 
 per head of the population was — it will be seen 
 from the following table, taken from authentic rec- 
 ords — considerably more than twice as great in the 
 middle of the eighteenth century as in that of the 
 nineteenth. From 1740 to 1790 it was: — 
 
 \ 
 
 1740 . . 3.78 1760 . 
 1750 . . 4.85 1770 . 
 
 . 4.29 
 . 3.38 
 
 1780 
 1790 
 
 . . 3.94 
 . . 2.57 
 
 "From 1801 to 1871 it was: — 
 
 
 
 1801 . . . 1.20 
 1811 . . . 1.60 
 1821 . . . 1.38 
 1831 . . . 1.63 
 
 1841 
 1851 
 1861 
 1871 
 
 . . . 
 
 1.35 
 1.50 
 1.61 
 1.72 
 
 "John Barleycorn is therefore far less powerful 
 in the nineteenth than in the preceding century, — 
 and why ? He was partially upset by John China- 
 man. I think the fact is indisputable. In the time 
 of the Tudors beer was drunk at every meal ; there 
 was a steady drinking from breakfast to supper. 
 As compared with that time, the draught of malt 
 liquor has declined more than one-half, otherwise 
 there could not have been the enormous consump- 
 tion of tea. The British people now consume very 
 nearly four pounds of tea per head per annum, — 
 an amount which has steadily progressed while the 
 consumption per head of malt has been all but sta- 
 
TEMPERANCE AND ABSTINENCE. 45 
 
 tionary. This fact is interesting, if only because it 
 shows that it is possible, by the introduction of new 
 drinks and by legislation, to change the bibulous 
 habits of a people." 
 
 We beg our abstinence friends to consider 
 the signs of the times. Look at the course 
 of New England in regard to social amuse- 
 ments. It is not toward severity and asceti- 
 cism, but toward liberty and well-regulated use 
 of social pleasures. This does not indicate a 
 popular mood which will bear too much pres- 
 sure from the ascetic side. Least of all, if we 
 are in earnest in trying to restrain drunken- 
 ness, should the abstinent party repel and 
 censure that portion of society which, while 
 using liquors, would have strong influence in 
 controlling their abuse, if that influence could 
 be fairly exerted. 
 
 Many good people choose their course in this 
 matter not according to their own wish or con- 
 viction, but according to the supposed effect 
 that course may produce on others. Persons 
 who are not convinced of the wrong in drink- 
 
46 PROHIBITORY LIQUOR LAW. 
 
 ing, yet avoid it because of the effect their 
 example may have on other and weaker ones. 
 In so far as this is a genuine affection for ab- 
 stinence, it carries some weight and has some 
 social influence ; but when it is a mere fashion 
 of morals, adopted not for its own excellence 
 but for its external effect, it is either useless 
 or injurious, as we hope to show. 
 
 There are two kinds of example one nega- 
 tive, as when we say with Othello, in his pas- 
 sionate condemnation of Cassio, " I'll make 
 thee an example ; " or the positive sort, when we 
 " propound to ourselves some exemplar saint." 
 The abstinent exemplars do not adopt either 
 kind. We form ourselves on a good man be- 
 cause we admire his virtues, and strive to 
 model the same traits in our own character. 
 Of course this process, if successful, carries us 
 into the essence of the saint, into the secret 
 of his being. No one ever created virtue 
 from the outside, or by imitating its effects ; 
 if he prevails over it, he seizes it in the germ ; 
 and having become fired by the same causes 
 
TEMPERANCE AND ABSTINENCE. 47 
 
 which inspired the saint, he puts forth equal 
 effects. This theory of perfunctory example 
 attempts to bring people to abstinence, not 
 through a serious conviction in those who 
 practise it, but through the form and external 
 custom which that practice has put on. It 
 fails, and it deserves failure. The parsimoni- 
 ous, wealthy parent, who limits his own expen- 
 diture to make a model for his son's imitation, 
 generally comes out with a spendthrift heir. 
 In his heart the boy despises the father because 
 he is playing a part before him. If the boy is 
 not capable in his more ardent and generous 
 nature of the same passion for money which the 
 parent feels, he cannot cultivate it by imita- 
 tion. The real object of the father is ava- 
 rice ; the object he represents to the boy is 
 prudence and economy. The boy, generally 
 speaking, is not capable of avarice, and the 
 artificial pressure intended to create prudence 
 recoils into extravagance. The theory fails 
 and, we say, deserves to fail, for it begins by 
 confounding definite and important principles. 
 
48 PROHIBITORY LIQUOR LAW. 
 
 Ethical truths cannot be divided and twisted, and 
 spun into new threads of truth by any expert 
 exercise of diplomatic art. Men may get prop- 
 erty, or get on in life, according to Mr. Disraeli, 
 and states may be governed, by other forces be- 
 sides moral ones. This involves other questions 
 not properly belonging here. But in moral in- 
 fluences we have a new and simple creation in 
 every act. The individual takes close hold of 
 his neighbor, and there is hand-to-hand work. 
 The highest and lowest intelligences are equal 
 here. Take up the most ignorant rustic, and 
 he knows whether you mean just Avhat the 
 words you tell him would indicate. If de- 
 ceived by circumstance the first time, he will 
 detect you in the second instance. Every man 
 is his own mirror, and this revealing of the 
 individual is all that can be done in example. 
 If you reveal something else, and send forth an 
 image which does not proceed from your cen- 
 tral and deepest conviction, then you create a 
 bad example, though your intention may be 
 good apparently. You can sustain but one ideal 
 
TEMPERANCE AND ABSTINENCE, 49 
 
 at a time, and are fortunate if you haye moral 
 energy enough for that. It must be the best 
 you have ; and the best you can do for another 
 is the very best you can do for yourself. No 
 constructive ideal, made from several nicely- 
 balanced motives, will affect your neighbor, or, 
 if it affects him at all, the effect will be bad. 
 Bear in mind this is not hypocrisy, it is not a 
 deception of others, but the much more subtle 
 deceiving of ourselves. The cynic Rochefou- 
 cauld said : " It is as easy to deceive one's self 
 without perceiving it, as it is difficult to deceive 
 others without their perceiving it." 
 
 If a man looks over his consciousness, and 
 finds that he has no fixed principles of absti- 
 nence, then, looking to the interests of society, 
 he had better practise temperance, and leave 
 abstinence to those persons who, believe in it, 
 and would die for it, if necessary. That is the 
 best example which exhibits whatever he would 
 sustain with all his might. In actual fact, a man 
 says feebly : " This is not wrong, but I may be 
 misunderstood, and it is better for me to deny 
 
 3 D 
 
50 PROHIBITORY LIQUOR LAW. 
 
 myself than to make others offend." The mis- 
 understanding begins with himself, and grows 
 larger the farther it extends. The motive be- 
 hind the self-denial is not the motive which 
 impelled St. Paul, but is the nerveless lack of 
 courage which will not let a man work out his 
 own convictions. It is this sort of example 
 which grinds the individuality out of us. It 
 examples the aquiline nose into a Grecian, the 
 Roman into a pug, and soon would leave not a 
 nose on our socially smooth faces. 
 
 In another view of this subject, example de- 
 feats itself. Truth-speaking is a good example, 
 but any thing spoken for an example is not the 
 truth. Ti'uth is imperial, and compels the in- 
 dividual to follow her behest with no reference 
 to consequence or the needs of any other indi- 
 vidual. In the same manner, good morals are 
 impelled by the good sense and wisdom of the 
 individual working his whole nature from its 
 own centre : else the sense becomes folly, and 
 the morals become false and vicious in their 
 effects. If we are told, this is hard for the weak 
 
 1 
 
TEMPERANCE AND ABSTINENCE. 51 
 
 ones who follow examples mechanically, and, by 
 exceeding the example of temperance, fall into 
 drunkenness, we answer, that we cannot help it. 
 Yon cannot aid a fool by taking up folly, or by 
 denying an appetite in order to keep him from 
 abusing that appetite. If the appetite is un- 
 lawful in itself, that is another question, which 
 this argument does not include. South says : 
 " One thing receives another, not according to 
 the full latitude of the object, but according to 
 the scanty model of its own capacity." Exces- 
 sive drinking, from one point of view, is an 
 insanity of the appetite. To treat the appetites 
 of all individuals as if they were insane, brings 
 on the same confusion that we should have if 
 we adapted our common living to the needs of 
 persons mentally insane. We should then make 
 ourselves crazy, without helping the few insane 
 who require a special treatment. 
 
 All this confusion arises from the effort to 
 put the test of our moral conduct in the wrong 
 I^lace. 
 
 " As a true balance is neither set right by a true 
 
52 PROHIBITORY LIQUOR LAW. 
 
 one, nor judged by a fjilse one ; so likewise a just 
 person has neither to be set right by just persons, nor 
 to be judged by unjust ones." — Epictetus (Higgin- 
 son's Trans., p. 414). 
 
 Our example is not the main test and stand- 
 ard of our lives : it is a mere index, which shows 
 what our living is. It must be true, so far 
 as it goes ; but the proper interpretation of the 
 index is not a social matter for the public ; it is 
 an individual matter for ourselves. The test — 
 the great plummet and plumb-line of our living 
 — is in our interior relation with God ; not 
 conscience alone, but all the faculties of which 
 cdhscience is the expositor. When this great 
 test is straight and satisfied, then example will 
 take care of itself, and other persons will receive 
 no harm from it. For even if the example be 
 one which others ought not to follow, it will be 
 thoroughly sincere, and something which carries 
 conviction or repulsion with it. Then one with 
 the meanest comprehension can follow, or take 
 warning and avoid; for he will understand, as 
 we instanced in the case of our rustic, who 
 knows our truth or falsehood at once. 
 
TEMPERANCE AND ABSTINENCE. 53 
 
 Physical illustrations never wholly fit, but 
 there is a close analogy to the sailing of a ship 
 in this conduct of the individual. In steering a 
 ship, there are three main elements, — the rud- 
 der, the compass, and the course chosen or indi- 
 cated. The winds and resisting currents enter 
 also, but in this connection we treat them as 
 a part of the rudder or steering process. The 
 captain compares information, adjusts observa- 
 tions, and cultivates good fellowship with other 
 vessels ; but he never changes his own course a 
 point on account of others. If they need aid, 
 he assists, but never links his own craft to one 
 water-logged, nor carries more or less sail for 
 the benefit of another. The moment he should 
 divert his course for the bearing it may have on 
 another, he would become a silly man as well as 
 a poor navigator. To do otherwise would be 
 putting his own compass, or course of sailing, 
 as it might be, on board another vessel. The 
 individual sails by his conscience, which is the 
 best index of right and wrong, and qaickest 
 brings the ship to her due bearings. But his 
 
54 PROHIBITORY LIQUOR LAW. 
 
 course is adjusted through other faculties, as 
 we said before, forming a great ocean in the 
 soul of mankind, through which from day to 
 day the individual works his way. Justice, 
 reverence, truth, fortitude, patience, temper- 
 ance, and a hundred other moral virtues, enter 
 into the course of living, and influence it now 
 this way and now that. The man gathers in- 
 formation wherever he can, takes his observa- 
 tions warily and sincerely, but he must take 
 them for himself, and adjust his own course by 
 the compass of his conscience and the great test 
 of righteous living, which brings him near, and 
 keeps him in harmony with God, the Father of 
 his soul; When he puts this test, this plummet 
 of his own righteousness, into somebody else's 
 ship, into an external form of example, then he 
 has lost his own positive course in life without 
 aiding or changing the course of others. 
 
 It was necessary to make this apparent di- 
 gression, for the principle lies near the core of 
 our main topic. Temperance or abstinence in 
 respect to liquors are principles strictly within 
 
TEMPERANCE AND ABSTINENCE. 55 
 
 the domain of each, individual. Each man has 
 a right — - morally, so long as no law of God is 
 broken, which we show in another chapter ; 
 socially, as we have proved in the foregoing — 
 to choose for himself whether he will use or 
 refuse liquors. The abuse of liquors at once 
 carries the individual beyond himself, and cre- 
 ates the right of social interference. Conse- 
 quentl}^, the use or non-use of liquors should 
 be equal before the law ; and there is no just 
 reason for interfering by legislation or legal pro- 
 cess with either practice. 
 
6Q PROHIBITORY LIQUOR LAW. 
 
 THE WORKING OF PROHIBITION. 
 
 ^ I ^HE abstinence reformers sincerely believed 
 that the law only lacked power ; if they 
 could have greater force at their command, then 
 they thought they could abolish the trafQc in 
 liquors. This feeling was general among them, 
 and it was not a new discovery, but a practical 
 application of this supposed principle, which 
 Neal Dow accomplished in the famous Maine 
 Law. This was introduced shortly into other 
 States, and became the political shibboleth of 
 the abstinence party. It proceeded against the 
 property as well as the offender under the law, 
 and gave stringent power of seizure. This 
 statute was enacted in Rhode Island in 1852, 
 and it is interesting to review some of the argu- 
 ments which were used in obtaining it, because 
 they are the same in kind which prevail with 
 the whole party. 
 
THE WORKING OF PROHIBITION. 57 
 
 Amos C. Barstow led the reformers, and we 
 cite from his speech in the Rhode Island House 
 of Representatives, as reported in the " Provi- 
 dence Journal " : — 
 
 "We are acting on a petition of 25,000 persons, 
 of whom 11,500 are adult male citizens ; they em- 
 brace a large part of the moral worth of the State. 
 . . . These petitions bear the names of the learned 
 and excellent President of your University, of 
 ministers of religion, of your physicians, merchants. 
 . . . They represent the industry and the virtue of 
 the State. I beg gentlemen who ^are preparing 
 amendments to this bill to mark the prayer of 
 these petitions. They want a law to suppress the 
 rum traffic, — not to regulate., but to suppress. 
 They ask for nothing more, and will be content 
 with nothing less. ... I charge Ae evils of intem- 
 perance upon this traffic, — and for this reason, the 
 appetite is not 7iatwxtl but acquired., and acquired 
 through the temptations presented by this traffic. 
 The only way, therefore, to stop the demand is to 
 cut off the supply. 
 
 " Our present laws do not, and cannot, supj^ress 
 it, and for these reasons : — 
 
 " 1st. It requires more evidence to convict a man 
 under them«than would be sufficient to hang liim. 
 
 " 2cl. The penalties are inadequate. So true is this, 
 
58 PROHIBITORY LIQUOR LAW. 
 
 that, ill my opinion, the law is hardly worth enforc- 
 ing. It only serves, when enforced, to fret and 
 goad the rumseller, while it allows the traffic to go 
 on. He can pay its penalties, and grow rich in spite 
 of it. 
 
 " 3d. It allows towns to license the traffic. The 
 State thus, by giving this liberty, sanctions the 
 traffic, and becomes a party to the crime. . . . 
 
 "It is hoped that these (Is., provisions of new 
 statute) and other stringent provisions will secure the 
 desired end, — will suppress this traffic. The suc- 
 cess which has thus far attended the enaction of the 
 law in Maine warrants this hope." 
 
 After twenty-two years' experience of this 
 statute, during which time it has either slept 
 on the statute-book or been enforced in feverish 
 spells of energy, we are still hearing the same 
 arguments and the same promises, with the 
 demand for more power in the law. The only 
 new principle introduced into the prohibitory 
 statutes of Rhode Island or Massachusetts has 
 been in the appointment of a force of state 
 constables. These officers, it was claimed, hav- 
 ing no local associations, would enforce the law 
 more strictly. 
 
THE WORKING OF PROHIBITION. 59 
 
 The reader will observe the principles which 
 run through this argument. The state must 
 take control of the appetites of its citizens just 
 as a mother directs an infant. Then, these 
 appetites are not in the individual, but " ac- 
 quired^^ through the agency of the liquor-seller, 
 and the state must suppress the traffic in order 
 to cut off the appetite. Many promises made 
 by the abstinence advocates were even stronger 
 than those we have cited, which were tempered 
 by the opposition of debate. There was a 
 serious conviction among the majority that a 
 new era in the temperance reformation had 
 arrived, and that well-disposed persons, what- 
 ever their private desires, should lend a hand 
 to bring in the promised millennium. The '' in- 
 dustry and virtue " of the Maine LaAv people 
 was tacitly backed by the larger force of 
 " world's people," who, though not allowed the 
 sanctimonious crown of virtue, yet try to do 
 their duty toward their neighbors and the state. 
 Every assistance was rendered to the abstinence 
 managers after the law was enacted, and many 
 
60 PROHIBITORY LIQUOR LAW. 
 
 doubtful ones even voted for it, that the princi- 
 ple might be tried. Mr. Barstow, the ablest 
 executive in the abstinence party, was elected 
 major of the city of Providence, and a com- 
 plete staff of officers was made out, who should 
 in principle sympathize with the statute. The 
 " world's people " laid in demijohns of spirits 
 and cases of wine, until every other house was 
 not only a castle, but a castle supplied against 
 a siege. 
 
 The results did not justify the ample prepara- 
 tion made for the law. Illicit traffic among the 
 lower classes began at once, and defied the best 
 exertions of the officers. Clubs were formed 
 among well-to-do persons, and the drinking of 
 liquors kept on. All who have observed these 
 clubbing operations to avoid a law — abstinence 
 men as well as temperates — agree that they 
 are among the worst evils society ever brought 
 in upon itself. We give the testimony of a 
 thoroughly disinterested gentleman who is used 
 to the observation of facts, and knows how to 
 reduce them to a scientific verity. 
 
THE WORKING OF PROHIBITION. 61 
 
 "Pkovidence, Oct. 21, 1874, 
 " Wm. B. Weeden, Esq. : 
 
 "My Dear Sir, — In accordance with your re- 
 quest, I send you in writing the substance of the 
 statement made by me orally to you a few days ago. 
 
 "During the years 1854-5-6, I was living in one 
 of the 2:>rincipal cities of Connecticut, and was very 
 favorably situated to observe the workings of the 
 'Maine Law,' when first passed and enforced in 
 that State. The evils resulting from it were so seri- 
 ous, that those of its most ardent supporters who 
 were really in a position to see and feel the real 
 state of the case were quite willing to allow the law 
 — in that city at least — to become aTdead letter. 
 
 " On one occasion, I heard the prosecuting attor- 
 ney (who had been very earnest in working to 
 secure the passage of the law) state the following 
 facts in private conversation : — 
 
 " ' No sooner were the dram-shops closed than the 
 regular tipplers, uniting, formed various "clubs" or 
 " societies" ostensibly for social or literary j^urposes. 
 liooms were hired, fitted up in good style, and stocked 
 with an abundance of the " ardent," purchased at 
 wholesale prices in New York. The rooms, open at 
 all times to members, became their favorite resort at 
 night, and gambling soon became a marked feature 
 of their festive c^atherinsjs. Not satisfied with fleec- 
 ing one another, they soon began to draw in fresh 
 victims, — the more innocent the better. Young 
 
62 PROHIBITORY LIQUOR LAW. 
 
 men, who would have turned with disgust from a 
 dram-shop, were easily enticed into a "club-room," 
 and those who would never have consented to play 
 at cards in a public resort were more ready to join 
 in a game, " among friends, you know." The infec- 
 tion quietly spread, especially among employes of 
 the higher class, — clerks and others holding posi- 
 tions of trust, who had been considered above all 
 suspicion. At length the employers became aware 
 that things were going wrong, and soon discov- 
 ered the source of the evil. Urgent appeals were 
 made to the prosecuting attorney by many of the 
 best citizens — most of whom had been zealous and 
 influential friends of the Maine Law — to put an end 
 to the pressure which gave these " clubs " their being 
 and their vitality. The law soon ceased to be en- 
 forced, but its evil effects long survived, as the 
 " clubs," once organized, maintained themselves for 
 some time. Many a young man, armed at all points 
 against open temptations, succumbed to the insidi- 
 ous lure of a " secret society," with its promise of a 
 social circle of " good fellows." That these " clubs " 
 were really the result of the law, and that they owed 
 their vitality in great measure to its enforcement, is, 
 I think, capable of distinct proof. ' " 
 
 The experience of clubs of this sort has been 
 equally bad everywhere, though they have not 
 
THE WORKING OF PROHIBITION, 63 
 
 all tended so much toward gambling. A disin- 
 terested witness, who had an intimate knowledge 
 of the habits of the working people in Connec- 
 ticut at this time, assured the writer that many 
 persons and families bought supplies of whiskey 
 from carts which came in the night, who hardly 
 drank at all in ordinary seasons. The feehng 
 was rife among them that they were cut off 
 from a right, and must make it up from the first 
 ilhcit opportunity afforded. 
 
 The writer was then a clerk, and often at 
 work in different warehouses Avith the wharf 
 laborers. When the enforcement of the law was 
 most rigid, and a stranger might suppose there 
 was not even a dew-drop of whiskey accessible, 
 these men would leave their work, one at a 
 time, dive into some cavern or burrow, and 
 return in five minutes, their lips wet with the 
 hasty dram. These men had as little power to 
 evade tlie law as any class could have. It is 
 fair to infer that others of the same Idnd and 
 other classes attained the same privileges else- 
 wliere. All external evidence showed that JMr, 
 
64 PROHIBITORY LIQUOR LAW. 
 
 Barstow's argument should be reversed. Instead 
 of the supply of liquor being the cause of an 
 appetite, facts indicated that the appetite com- 
 manded its supply in spite of all the power the 
 city of Providence could bring to suppress it. 
 
 " As they (statesmen) descend from the state to a 
 province, from a province to a parish, and from a 
 parish to a private house, they go on accelerated in 
 their fall. They ought to know the different depart- 
 ments of things, — what belongs to laws, and what 
 manners alone can regulate. To these, great j)ohti- 
 cians may give a leaning, but they cannot give a 
 law." — Burke, Y. 210 (Rivingtons). 
 
 The results among the better conditioned peo- 
 ple were patent to every one. The abstinence 
 administration was turned out as a failure, and 
 matters drifted along in the old way. It might 
 be expected that the dangerous classes — those 
 who are directly amenable to the law, through 
 lack of character and settled place in life — 
 might be controlled more surely than the 
 wealthy, or those humble laborers whom we 
 have instanced above. That the system failed 
 here also, the testimony of Dr. Wayland shows. 
 
THE WORKING OF PROHIBITION. ^T:) 
 
 He became an abstinence man, on account of 
 the weight his character and public position 
 gave to his example. He afterward lent his 
 influence to prohibition, in the hope that it 
 might prevail ; he was a petitioner for the law, 
 as we have seen, though he always doubted its 
 final success. The writer is assured of this by 
 those who knew him well. 
 
 ~ The report of the State Prison Inspectors, 
 drawn in the handwriting of Dr. Wayland, — 
 he being chairman, — dated Jan. 14, 1853, con- 
 tains the following": — 
 
 "It will be seen, from the above statistics, that 
 the greater part of the expense to which the State is 
 at present subjected in maintaining tlie prison, arises 
 from the county jail. If this branch of the prison 
 could be made sufficiently productive, the conditiont 
 of the establishment would be much more satisfac- 
 tory. The reasons why the earnings of the county 
 jail are so small are twofold. In the first place, 
 those persons who are only detained for trial are 
 not subjected to labor, and hence there are no 
 means for reducing the expenses of their main- 
 tenance ; and, secondly, the sentences to the county 
 jail are, iii many cases, so short, that no time is 
 
 £ 
 
Q6 PROHIBITORY LIQUOR LAW. 
 
 allowed for teaching these convicts any profitable 
 labor. 
 
 "The bad effect of these short sentences is not 
 confined to its expense of maintenance. It is thus 
 rendered impossible to teach the convicts habits of 
 industry, or to overcome habits of intemperance; 
 and, still more, by returning the same convicts fre- 
 quently to prison, there is entailed upon the State 
 a large expense in the shape of fees of arrest, com- 
 mitment, and trial." (The state had just added a 
 wing to the state prison, containing eighty-eight 
 cells. The average number of prisoners was then 
 one hundred and fifteen, — forty-seven being state 
 and sixty-eight jail prisoners.) 
 
 " The Inspectors respectfully request that any 
 part of the State Prison may be used as a county 
 jail at the pleasure of the Board." — Acts and Re- 
 solves. Rhode Island, Jan., 1853, p. 332. 
 
 On the 31st of December, 1855, about three 
 and a half years after the Maine Law went into 
 operation, the State Prison Inspectors made 
 another report, which also bears the name of 
 Dr. VYayland. We extract : — 
 
 "By this mode of exercising criminal jurispru- 
 dence, no single object is attained; nothing is done 
 either to diminish the amount of crime or to im- 
 
THE WORKING OF PROHIBITION, 67 
 
 prove the individual criminal. The result may 
 therefore be set down as nothing. . . . This total 
 $6,306.49 is the cost in Providence county for in- 
 toxication, which is taken from the pockets of the 
 tax-payers. From these statistics it would seem, 
 then, that the amount paid by the county of Provi- 
 dence alone for imprisonment for intoxication, if 
 divided among the several towns of the State, 
 would furnish each one with about 8200 for the 
 purchase of a library. As at present expended, it 
 is impossible to discover that it attains a single val- 
 uable result. . . . The last report for the Albany 
 Penitentiary has been received. The experience of 
 that institution has been in every respect so nearly 
 identical with our own, that we beg the attention 
 of the Assembly to the following extract : — 
 
 " ' Albany Penitentiary Report. — Since the en- 
 actment of what is termed the "Prohibitory Law," a 
 new crime, denominated "public intoxication," punish- 
 able by ten days' imprisonment, has been instituted, the 
 practical effect of which has been detrimental to the 
 pecuniary interests of the penitentiary. With the law 
 itseK the Inspectors have nothing to do, whatever their 
 individual opinion of its merits or demerits may be. . . . 
 If our law-makers had intended to punish the tax-paj^er 
 instead of the drunkard, or, rather, if they had meant to 
 inflict a slight punishment on the latter at the expense 
 of the former class, the object could not have been more 
 effectually accomplished. Neither is its moral influence 
 in any degree salutary. In the opinion of the Inspect- 
 
68 PROHIBITORY LIQUOR LAW, 
 
 ors, the statute referred to should be so amended as to 
 lengthen the term of imprisonment, or things in this 
 respect restored to their original state, and offenders 
 treated as they were before the law existed.' 
 
 " Impressed with these convictions, the Board of 
 Inspectors ask leave to commend the laws relating 
 to imprisonment in the jail to the attention of the 
 General Assembly, fully convinced that they will, 
 in their wisdom, originate such enactments as will 
 more effectually and economically accomplish the 
 object of criminal jurisprudence," — Acts and Ke- 
 solves. Rhode Island Assembly, Jan., 1856. 
 
 A nuisance act was passed in 1856, which 
 supplemented the original law, and corrected 
 spme of its details which had been damaged 
 in the courts. But the practical results, after 
 all the legislative tinkering, were no better than 
 the old system before the Maine Law began. 
 Mr. Barstow's description of the old law — "it 
 only serves, when enforced, to fret and goad the 
 rumseller while it allows the traffic to go on ; 
 he can pay its penalties and grow rich in spite 
 of it " — applies equally well to the new or 
 Maine Law system. The liquor-dealers in Provi- 
 dence have acquired large fortunes, built solid 
 
THE WORKING OF PROHIBITION. 69 
 
 blocks of stores, and in everj way evinced a 
 prosperous traffic. The extra pressure of the 
 law has increased their margin of profit. It 
 might be said this increased price was an ad- 
 vantage to the drinker, in that it checks con- 
 sumption ; whicli would be true, were it not that 
 the quality of the article sold has deteriorated 
 so much from the same cause that the injury 
 done the drinker is aggravated in a double ratio. 
 
 The writer is assured, by a competent eye- 
 witness, one whose testimony would be weighty 
 in any affair, that the result was substantially 
 the same ^in Maine. Though the law main- 
 tamed itself in administration, yet its fruits 
 were not satisfactory. " After the first two 
 years the extreme measures disgusted all mod- 
 erate temperance men." 
 
 The writer supposed — every one supposes — 
 that it would be easy to set forth these facts 
 of the working of prohibition and of the hab- 
 its of the people in their use of liquors in sat- 
 isfactory statistics which should indicate the 
 consumption of liquors. Wherever we travel, 
 
70 PROHIBITORY LIQUOR LAW. 
 
 whether in Maine, Massachusetts, New York, 
 or Ohio, we see about the same evidences of 
 hquors and their consumption. Bar-rooms, sa- 
 loons, and retail shops prevail almost equally. 
 In large places, when new streets are opened, 
 we see about the same preparation for liquor- 
 selling, w^hether the location be in Massachu- 
 setts or New York. A village may show signs 
 of an especial abstinence from liquors, but the 
 next village will give equal evidence of a dif- 
 ferent habit, while both live under the same 
 prohibitory law. States having different sys- 
 tems, wdiether of license or prohibition, show 
 no marked difference in their drinking habits. 
 Go into their homes, and you find abstinence 
 prevailing among the ascetic temperaments, and 
 about the same tendency toward drinking in 
 different places among those who do not agree 
 with the ascetics. It is evident, at a glance, 
 that the law prevailing does not essentially ' 
 change the habits of the people, though they 
 may differ in degree. A notable proof of this 
 fact from the negative side is afforded in Vine- 
 
THE WORKING OF PROHIBITION. 71 
 
 land, New Jersey. Here a large village lias 
 grown up under a prohibitory system almost 
 absolute. The reason why the system has suc- 
 ceeded is because the people are different from 
 any common town organized by the usual laws 
 of settlement. The place was exceptionally 
 conceived, exceptionally settled, and is excep- 
 tionally governed. It drew together a group 
 of citizens tired of other places and desirous 
 of new ways of living. The administration 
 which may succeed there, is, in th^ nature of 
 the case, unfit for the country at large. There 
 could not be a whole country of Vinelands 
 unless there were more worlds to select from. 
 Whether the whole country would be better 
 if it were all Yineland, we are not discussing ; 
 it would require at least three generations of 
 people exceptionally selected and reared to 
 prove the superiority of the exceptional sys- 
 tem ; meanwhile, it is an open question. Laws 
 are made for the whole people, and not for any 
 fragment, whether that exceptional portion be 
 better or worse than the majority. 
 
72 PROHIBITORY LIQUOR LAW. 
 
 Determined to prove these plain facts, the 
 writer apphecl to one of the best statisticians 
 in Massachusetts, and drew out the following 
 reply : — 
 
 "I profess to have the means of getting at sorae 
 statistics; but a more preposterous request than 
 that you sent to me yesterday I never knew. Dr. 
 
 might tell you to a pint how much liquor was 
 
 used in the State in any given period, but he would 
 get at it in the same way the boy said the astron- 
 omers ascertained the distance to the sun, — guess 
 at half and multiply it by two. 
 
 " Ko, my dear Sir, there is no way you can find 
 out any thing of the kind in any trustworthy way. 
 Some of the wholesale liquor dealers may have 
 approximate statistics which would be useful for 
 comparison of one year with another, on the prin- 
 ciple that the blunders will balance, but not other- 
 wise, — nothing absolute. You might reckon that 
 all the liquor that comes into the State is used, as 
 there is a prohibitory law in Maine, and no liquor is 
 sold or used in that State. 
 
 " Don't be discouraged by my inability to answer 
 this question. Try me again. — Sincerely yours." 
 
 The writer then thought a search might be 
 made throuofh the records of the common car- 
 
THE WORKING OF PROHIBITION. 73 
 
 riers, on the great Imes at least, which should 
 show the amount of liquors carried into Boston, 
 for a term of years, and thus give us on paper 
 the relative consumption from season to season. 
 Such a statement would be interesting to all 
 who discuss this vexed question, whatever their 
 view of it. A gentleman much interested in 
 these issues, and so situated as to command all 
 these sources of information, replied as fol- 
 lows : "I have enquired both at the Provi- 
 dence offices and at the Boston and Albany, 
 to see if any such statistics as you desire are 
 accessible ; but I find nothing less than a 
 most disproportionate amount of labor and 
 research would accomplish even an approxima- 
 tion to what you require, and this would be 
 open to criticism." We have been thus par- 
 ticular in detaiUng this experience, because it 
 shows the method by which we have labored 
 in this work. There is not a single statement 
 made in this whole essay which is not the result 
 of conference with persons who know whereof 
 
T4 PROHIBITORY LIQUOR LAW. 
 
 they speak. The writer has no connection with 
 political party or politicians, and no connection 
 with the press. This freedom from the powers 
 that be, in these regions of sumptuary law, has 
 opened the mouths of many officers who could 
 not speak in a report, in a political convention, 
 or through the medium of the newspaper re- 
 porter. Many statements we make guardedly, 
 for the purpose of keeping the personality of 
 the witnesses secret. We have been received 
 in the fullest and freest confidence, and what- 
 ever the reader may think of our argument, he 
 may rely on the fact that the writer receives 
 and gives out no testimony which he would not 
 apply in his own affairs or his own family. 
 
 The present prohibitory law in Massachu- 
 setts was enacted in 1869. In principle it is 
 like all these statutes, and like the original 
 Maine Law; they only differ in details. 
 
THE WORKING OF PROHIBITION. 75 
 
 THE STATE APPOIXTS A COMMISSIOXEE OR STATE 
 AGEXT. 
 
 Chap. 415 — Sec. 17.^ "The selectmen of every 
 town containing less than 5,000 inhabitants may, 
 the mayor and aldermen of every city or selectmen 
 of every town containing more than 5,000 inhab- 
 itants shall, appoint one or more suitable persons as 
 agents of such place to purchase and sell at some 
 convenient places therein, spirituous or intoxi- 
 cating liquors to be used in the arts, or for 
 medicinal, chemical, and mechanical purposes, and 
 no other. . . ." 
 
 Sec. 24. "Whoever, purchasing spirituous or 
 intoxicating liquor of any agent, intentionally 
 makes a false statement reo^arding^ the nse to 
 which the liquor is intended to be applied, shall 
 pay a fine of not less than five nor more than 
 twenty dollars." 
 
 SALES SPECIALLY AUTHORIZED. 
 
 Sec. 27. "The importer of liquor of foreign pro- 
 duction may own, possess, keep, or sell the same in 
 the original packages, and in quantities not less 
 than the quantities in which the laws of the United 
 States require such liquors to be imported." 
 
 Sec. 28. " Druggists may sell, for medicinal pur- 
 
 i General Laws of Massachusetts, June, 1869. 
 
76 PROHIBITORY LIQUOR LAW. 
 
 pos^3s only, pure alcohol to other druggists, apoth- 
 ecaries, and physicians. 
 
 Sec. 29. "A chemist, artist, or manufacturer 
 may keep for use, not for sale. Any person may 
 manufacture or sell wine for sacramental purposes. 
 Any person may manufacture or sell cider, not sold 
 or kept with intent, at a public bar, to be drank on 
 the premises." 
 
 Sec. 32. " Whoever directly or indirectly ^ells 
 to another person spirituous or intoxicating liquor, 
 or mixed liquor, part of which is spirituous or intox- 
 icating, in violation of the provisions of this act, 
 shall, for one violation, pay ten dollars and be im- 
 prisoned in the house of correction not less than 
 twenty nor more than thirty days ; for a second 
 violation, shall pay twenty dollars and be impris- 
 oned in the house of correction not less than thirty 
 nor more than sixty days ; and for any subsequent 
 violation shall pay fifty dollars and be imprisoned 
 in the house of correction not less than three nor 
 more than six months." 
 
 Sec. 35. " In all cases under this act, delivery of 
 intoxicating liquor in or from any building or place, 
 other than a j^trivate dwelling-house or its depen- 
 dencies, or in such dwelling or dependencies, if part 
 of the same is a tavern, &c., shall be deemed prima 
 facie evidence of and punishable as a sale ; and a 
 delivery in or from a private dwelling-house, with 
 
THE WORKING OF PROHIBITION. 77 
 
 payment implied, shall be deemed priimd facie evi- 
 dence of and punishable as a sale." 
 
 Secs. 36, 37, 38, 39. " Whoever owns liquors with 
 intent to sell ; whoever receives the same to con- 
 vey to another intending to sell ; whoever receives 
 for a railroad; whoever brings into the Common- 
 wealth, or conveys from place to place within the 
 same," all these are fined or imprisoned, and a rail- 
 road is to be fined fifty dollars for each offence. 
 
 Sec. 62. "All intoxicating liquors kept for sale, 
 and the implements and vessels actually used in 
 selling and keeping the same, contrary to the pro- 
 visions of this act, are declared to be common 
 nuisances." 
 
 Chap. 442 — Sec. 1. "The word * constable,' 
 wherever it occurs in Chap. 415, shall be held and 
 construed to include within its meaning the con- 
 stable of the Commonwealth and his deputies." 
 
 This act was amended eleven times in four 
 years, or to 1873 inclusive. As the Chief of 
 the Boston Police says: — 
 
 " The law for the suppression of the sale of 
 intoxicating drinks is manifold in its provisions, 
 including the single sale, the second sale, common 
 sale, seizure, and common nuisance clauses, each 
 with its respective penalty. . . . The duties im- 
 posed on the new organization (^.e., the state 
 
78 PROHIBITORY LIQUOR LAW. 
 
 constabulary) were of no inconsiderable magni- 
 tude ; but it is reasonable to suppose that all officers 
 on whom the duty devolved, faithfully carried out 
 the policy of the authorities under whom they 
 served; certainly a great many prosecutions have 
 been made under all the provisions of the law by 
 both local and state officers ; hut yet drunkenness, 
 the evil, has not diminished.''''^ 
 
 According to the Police Report, in 1872, 
 there were in Boston 2,768 places for the sale 
 of liquors, or one shop for every 99 inhabitants. 
 Providence, which at the same time had a very- 
 loose license system, reports one shop for 223 
 inhabitants. According to Arnold, London 
 had 10,000 " public and beer houses," or one 
 to about 300 inhabitants. These figures are all 
 approximate, and the most accurate which 
 are to be had. They show that the traffic 
 which is cut off by prohibition in country- 
 towns is recompensed in Boston. "With our 
 abundant transportation, this transferred traffic 
 is easily carried on. 
 
 1 Report of Chief of Boston Police, 1872, p. 50. The italics 
 are ours. 
 
THE WORKING OF PROHIBITION. 79 
 
 The State Board of Health of Massachusetts 
 are equally positive in their conviction that 
 the prohibitory law has not practically suc- 
 ceeded. We cite : — 
 
 "For years pubhc sentiment in the Common- 
 wealth has fluctuated between the extremes of 
 action and reaction on this matter. Meanwhile, 
 it seems certain that while throughout the State 
 there is less drunkenness than formerly, it never 
 was more rampant than now in Boston and some 
 of the larger cities. This habit the Board believe 
 to be infinitely deleterious ' to the prosperity, hap- 
 piness, health, and lives of the citizens.' The 
 records of our courts, and the knowledge which 
 every one has of its effects in the private family, 
 assure us of this fact. The evil is enor?nons. How 
 to remedy it is the difficulty.-^ 
 
 In the small villages and country towns of 
 Massachusetts, as well as Rhode Island, the 
 law has proved more effective. Whether this 
 success is not superficial and dearly purchased, 
 is matter of doubt. When we dam a stream, 
 it is not stopped ; the current ceases as w^e 
 
 i Report of the State Board of Health, 1871, p. 11. 
 
80 PROHIBITORY LIQUOR LAW. 
 
 look upon it, but while the sources remain 
 the stream gathers new force, and cuts new 
 channels, made even more dangerous by the 
 dam we have interposed. 
 
 Laws in this country are born out of the 
 life of the people. In the world's history the 
 state has never distributed its sovereignty so 
 lavishly and freely as our American govern- 
 ment has done. The people have great power, 
 and their mood takes speedy effect in legisla- 
 tion, especially in the state organisms. Sov- 
 ereignty is absolute, and knows no moral right 
 or wrong after it has once uttered itself in a 
 statute. Hence a statute must either be in 
 such accord with our common living that it 
 works itself out easily, or it will remain a 
 dead letter, and be eddied by the popular cur- 
 rent passing by it. The people will hardly 
 resist it by means of the regular forms of legal 
 resistance, for they made it. A prohibitory 
 liquor statute carries injustice with it. The 
 man seeking to purchase is not a criminal un- 
 less he is drunk ; he finds a seller willing to 
 
THE WORKING OF PROHIBITION. 81 
 
 take the risk of the law, and the seller is 
 always supported by the public sentiment of 
 that part of the community he knows most 
 of. He is tacitly supported by the whole com- 
 munity ; for the people who give weight to 
 ordinary legal administration — what we term 
 the respectable part of society — take, and will 
 take, no practical action in liquor prosecutions. 
 No man hesitates to inform or testify ao'ainst 
 theft or against maltreating brutes, or any 
 other crime which common public sentiment 
 abhors. A citizen does not like to dabble with 
 liquor-selling; tha buyers will hardly testify; 
 hence the prosecutors resort to shifty tricks to 
 estabhsh their suits. The local officers are but 
 the executive arm of their communities ; they 
 are men of like passions to those among whom 
 they live. If it were an honorable and de- 
 sirable pursuit to follow liquor-selling through 
 its sinuous devices, they would seize upon the 
 honor. As it is, they generally decline the 
 opportunity. 
 
 For these reasons, the prohibitionists devised 
 
82 PROHIBITORY LIQUOR LAW. 
 
 the state constabulary, by means of which the 
 odium of executing the law should be removed 
 from the provinces of home rule and laid 
 upon a central force emanating from the state. 
 The pressure brought to bear on these imperial 
 officials by the Joneses we have described, and 
 the abstinence politicians should be sufficient 
 to keep the law in operation. In a measure 
 the system has succeeded, for it has brought 
 the power of the state to bear more readily 
 on the details of government than we have ever 
 known in our American experience. Carried 
 out, it would destroy town government, the cor- 
 ner-stone of our republic. A town not able to 
 administer its liquor laws wisely would soon 
 fail in other administration. A board of bridge- 
 builders, another of road-makers, another of 
 almshouse keepers, and another and another, 
 all under state control, might conduct their 
 first operations more wisely than the citizens 
 of a small and remote town might do the 
 same ; but, meanwhile, what would become 
 of the citizen on whom the town rests? what 
 
THE WORKING OF PROHIBITION. 83 
 
 of the town on which the state rests ? It 
 is the method of imperial Russia, it is the 
 method of France, which adapts itself equally 
 well to an ephemeral republic or to an empire. 
 It needs the virtues of a despotism as well 
 as its power to make it tolerable in admin- 
 istration. Mingle the powers of a despotism 
 with the vices of party politics, and the result 
 will not better the state, even though a few 
 liquor shops are closed in the process. It is 
 matter of common report in Massachusetts that 
 practices are instituted under this system which 
 should make all good citizens grieve, whether 
 they be temperate or abstinent in principle. 
 
 Both Rhode Island and Massachusetts have 
 good assay laws, which rest on the statute-book 
 with no practical results. The abstinence men 
 do not care to stop the sale of adulterated 
 liquors as such. The difference between the 
 good and the bad is to them, as Mr. Toots 
 would saj^, of •' no consequence." Their aim 
 is to suppress the whole traffic, and the further 
 this impossible goal is removed, the more ardent 
 
84 PROHIBITORY LIQUOR LAW. 
 
 becomes their pursuit of it. Any practicable 
 regulation to cut off present evils moves them to 
 tacit opposition, or, at best, to indifference. 
 
 In Rhode Island, the old Maine Law of 1852, 
 with its amendments, was allowed to sleep on 
 the statute-book, the legislature meanwhile 
 granting privileges for local license to the 
 towns and cities. In May, 187-1, the General 
 Assembly repealed all the license laws, re-estab- 
 lished the original seizure powers of the Neal 
 Dow law, with even more stringent provisions, 
 and appointed a force of state constables. In 
 July, with great fanfaronade, the work of pro- 
 hibiting the sale of intoxicating drinks began. 
 The reader who is not so fortunate as to live 
 within the bounds of our little but strong State 
 may suppose that this .law was the result of 
 some change in the opinions of the people of 
 Rhode Island ; some deep conviction which 
 gave an impulse to the legislators, and would 
 afford power to enforce and maintain it. A 
 prohibitory law is not made in that way. There 
 was a crisis in Rhode Island politics, worse than 
 
THE WORKING OF PROHIBITION. 85 
 
 the one which Thackeray so humorously por- 
 trays in the affairs of England. A senatorial 
 chair was to be vacated, and the aspirants dis- 
 puted for the prize. The contest was fierce, with 
 many ballotings. Mr. X couldn't, Mr. X 
 mustn't, and Mr. Z, the temperance leader, 
 wouldn't come in. The astute manasrers for 
 one of the candidates thought that by enacting 
 a constabulary and prohibitory statute they 
 could gain a move over their opponents. Mr. 
 Z, the temperance leader, was personally pop- 
 ular, and might have drawn sufficient support 
 from the other parties to elect him, but he 
 wouldn't accept, and in no event could a direct 
 prohibitionist be elected on that issue ; the gen- 
 eral government and the United States treasury 
 have never appreciated prohibition. Therefore 
 these calculating gentlemen foresaw a prohib- 
 itory measure might help their " slate " : thus it 
 was done. It is whispered about that the men 
 who actually made this law were not strongly 
 convinced in their own persons of the good of 
 total abstinence. It is even hinted that these 
 
86 PROHIBITORY LIQUOR LAW. 
 
 politicians do not hold themselves bound by the 
 State law, but remand their allegiance to that 
 higher law which sends taxes on whiskey into 
 the United States treasury, where they are 
 much needed. Besides, those who criticise 
 and carp at these patriots forget that there 
 is no statute in Rhode Island which forbids a 
 legislator or a political manager to drink. The 
 prohibition is upon the saZe. 
 
 The agitators set their machinery in motion 
 during the summer, and in the autumn a lot of 
 cases were under way. It is supposed there 
 are^ fiiHy five hundred suits instituted. It is 
 evident that, if law and litigation would ac- 
 complish the suppression of the traffic, there is 
 enough in process in Rhode Island. They made 
 loud noise, and one might suppose that no man 
 would dare to tap a cask. Still the know^ing 
 ones said that the sale was going on in different 
 form, but in as large quantity as ever. The 
 state constables bustled about and worked faith- 
 fully as they could ; there is no question of their 
 ^ In December, 1874. 
 
THE WORKING OF PROHIBITION. 87 
 
 integrity. They could not be entirely fair, as 
 politics are constituted. Where a dealer had 
 strong political influence, — and the shrewd ones 
 among them have this, owing to the inverse 
 working of these very laws, — the constables 
 found it convenient to pass him b}^ But they 
 seized many stocks of liquors, and large ones, to 
 await trial under the new statute. There is so 
 much good done, you will say ; to get any sub- 
 stantial quantity of liquors out of the shops is 
 a blessing. Innocent ! you do not understand 
 the plain ways of liquor laws. As soon as the 
 state constable attaches, the dealer puts his legal 
 machinery at work. The ownership of these 
 large stocks of liquors is in men who live in New 
 York. They at once sue, and the United States 
 marshal, one greater than the state constable, 
 takes possession. Well, tlie liquors are safe, 
 good women will say ; some good is done. Not 
 at all. The United States assumes no further 
 responsibility than it is obliged to, in any civil 
 suit, for any property interest. In this suit, it 
 only cares for the plaintiff, who wants his liquor, 
 
88 PROHIBITORY LIQUOR LAW. 
 
 therefore the marshal appoints a keeper who is 
 satisfactory to the plaintiff, and if he chooses he 
 appoints a clerk of the Rhode Island dealer. The 
 marshal has no other com^se open to him ; he 
 discharges his duty morally and legall}^ when 
 he satisfies the plaintiff. So the liquors have 
 rounded the circumlocution office, and passed 
 back into the virtual control of the dealer from 
 whom they started. The dealer then goes on 
 retailing with a small stock at risk of seizure, 
 but the bulk of his property is under the virtual 
 protection of the United States government. 
 The fault is not in any executive, it is in the 
 law itself, which starts in injustice and ends in 
 absurdity. If you say the same evasion might 
 follow any law of regulation, we answer no. 
 Any law which does not work out public senti- 
 ment will be evaded, if not by the above process, 
 by some other equally ingenious. But ingenuity 
 never saved a public offender where the public 
 were in earnest. The public mind assents to 
 the theory of regulation ; enthusiasts attempt to 
 turn that sentiment into prohibition ; the result 
 
THE WORKING OF PROHIBITION. 89 
 
 in practice is a mush which is neither prohibi- 
 tory nor regulative. 
 
 All this legal and governmental commotion 
 produced a corresponding effect on the public 
 mind. The newspapers were filled with noisy 
 assertions that liquor-dealing Avas crushed or 
 being crushed, and that prohibition was ex- 
 alting itself day by day in the estimation of 
 the citizens of Rhode Island. This expression 
 culminated in the testimony of Gov. Howard, 
 who is politically affiliated with the prohibition- 
 ists, at a convention of the Rhode Island Tem- 
 perance Union. He said : — 
 
 . . . "I stopped short without recommending par- 
 ticularly the prohibitory law. I did so because I was 
 not fully convinced that it was the best remedy to 
 be found ; but the law was adopted. After a long 
 time we succeeded in selecting such a force of men 
 as was needed to execute those laws; and now, 
 ladies and gentlemen, I am here to-night, especially 
 for the purpose of saying, not from the stand-point 
 of a temperance man, but as a public man with a 
 full sense of the responsibility which attaches to me 
 from my representative position, that to-day the 
 prohibitory laws of this State, if not a complete 
 
90 PROHIBITORY LIQUOR LAW. 
 
 success, are a success beyond the fondest anticipa- 
 tions of any friend of temperance, in my opinion. 
 Ladies and gentlemen, prohibitory legislation in 
 Rhode Island is a success to a niarvellous extent. 
 I have desired, I have felt it incumbent upon me to 
 make that declaration, and I desire that it shall go 
 abroad as my solemn assertion." ^ 
 
 This was on the eve of the 29th of October. 
 " The Union," the organ of the prohibitory- 
 party, on the 4th of December, in an article 
 entitled " The Future Outlook for Prohibition," 
 makes this statement : — 
 
 " What has been done to enforce the law, aside 
 from the labors performed by two or three of the 
 seven deputies?^ Wtiy? little or nothing at all. 
 The dealers in intoxicating liquors have made some 
 little changes in their mode of doing business, and 
 the business goes forv^ard ]\xs,t as defiantly as though 
 it were a virtue to trample the statutes of a little 
 State like Rhode Island under foot." 
 
 The piteous whine for the little State was 
 gratuitous, . for Massachusetts conflicts in the 
 same or similar processes of law with the gen- 
 
 1 Extract from report of speech in " Providence Journal." 
 
 2 i.e.. State constables. Tiie italics are ours. 
 
THE WORKING OF PROHIBITION. 91 
 
 eral government. The statement of the '' Union " 
 was correct, and confirmed by the common ob- 
 servation of all except the few whose brains 
 and ears were filled with prohibitory prejudice. ^ 
 If the law was a dead or dying failure on the 
 4th of December, it is obvious that it could not 
 have been '* a marvellous success " on the 29th 
 of October, only five weeks previous. Gov. 
 Howard is an honorable man, more unselfish 
 
 1 Since the above was in type, Mayor Doyle, of Provi- 
 dence, has published his annual report, and we cite : — 
 
 " The number of arrests during the past year has been less 
 than in the preceding year ; and this fact was to have been 
 expected from the depression of business, particularly in the 
 manufacturing branches. This result has been observed in 
 police experience heretofore. At such times the arrests for 
 drunkenness and small offences growing out of the use of in- 
 toxicating liquors decrease. The enactment of a prohibitory 
 liquor law has not reduced the number of places for the sale of 
 liquor in this city. At the present time, the number of places 
 where liquor can be obtained is larger than at any time here- 
 tofore. It has, however, changed the mode of seUing ; and, in 
 many of the places, instead of a variety of liquors being kept 
 on hand and in considerable quantity, a single kind and but a 
 small quantity is now kept where it can be found. There has 
 been considerable increase during the past few months in the 
 number of young men upon tlie streets under the influence of 
 liquor, and complaints of rowdyism from this class are becom- 
 ing very frequent, far more so than we have been accustomed 
 to receive." 
 
92 PROHIBITORY LIQUOR LA W. 
 
 than ordinary politicians. The facts prove the 
 political principles we stated in our introduc- 
 tion. An honest man, deluded by the noise of 
 zealots, is driven into a declaration which his 
 common sense would never have entertained, 
 if he could have allowed that wholesome moni- 
 tor to be heard. It is seldom the futility of 
 prohibition is proven in such dramatic experi- 
 ence, but the principle is the same everywhere. 
 Ehode Island is a small community, and inakes 
 history promptly, whether in the Dorr rebellion, 
 the Union struggle, or in the vagaries of pro- 
 hibition. The law works quickly, the reaction 
 is speedy, and these facts are thrown out upon 
 the surface, so that people mus^ recognize them. 
 The statute is the same as elsewhere, a little 
 more stringent perhaps, it being the latest con- 
 trivance ; the people are much the same in their 
 habits with those of other Eastern States. 
 
 The writer has enjoyed the freest confidence 
 of the officers of the law in almost every de- 
 partment of its administration. He has never 
 found one who believed the law has been or 
 
THE WORKING OF PROHIBITION. 93 
 
 can be executed in> such a way as to sensibly 
 
 lessen the traffic in intoxicating hquors. Many 
 
 interesting facts coming from their sources 
 
 have gathered in the writer's note-book while 
 
 he has been investigating this matter ; he has 
 
 space for but few of them. While the State 
 
 and the United States officers were trying their 
 
 strength over the liquor in the barrel, what 
 
 were the retailers about? To the ej^e, many 
 
 shops were dry ; ^ but on one street there were 
 
 fourteen dwellings which had meanwhile begun 
 
 to retail spirits. Imagine the consequences of 
 
 converting fourteen homes into drinkmg dens, 
 
 — this on one street, — then extend the picture 
 
 over a large city. These were the haunts of the 
 
 poorer classes. At the same time, one man had 
 
 upon his pocket-ring seven keys to as many 
 
 different club-rooms opened for the purpose of 
 
 drinking. The upper classes, as they are called, 
 
 organized these clubs in all quarters of the city ; 
 
 we have already cited evidence showing the 
 
 1 In other cases the sale kept on. There would be three 
 different seizures at one shop within two months. Yet the 
 daily sale would hardly be diminished. 
 
94 PROHIBITORY LIQUOR LAW. 
 
 effects of these illicit institutions. The positive 
 effect produced by the law was chiefly in cut- 
 ting off uses of liquors, which all but extremists 
 would agree Avere not harmful. This instance 
 occurred, and we give it in the words of one 
 of the parties concerned : — 
 
 "A German woman expecting to die desires the 
 communion in conformity with the usages of her 
 church. She sends for a clergyman, who has no 
 wine, in consequence of the prohibitory law. To 
 obtain the wine, the clergyman appUed without 
 success to a fellow-clergyman, and then, the matter 
 being urgent, he addressed a note to a respectable 
 druggist, who reluctantly furnishes a small amount 
 of vile stuff. Through a mistake, the wine was sent 
 to the clergyman's house, who could not conscien- 
 tiously convey this stuff to the patient, and destroyed 
 it. He applied to a leading druggist, knowing him 
 personally, for some pure wine. The druggist most 
 reluctantly furnished the article desired, which was 
 presently forwarded to the patient. The patient, 
 when it arrived, no longer needed the wine, or the 
 communion, or the pastor." 
 
 This pathetic story is an exceptional affair, 
 but it truly illustrates the cumbrous working of 
 
THE WORKING OF PROHIBITION. 95 
 
 that legal macliinery whicli, created to catch the 
 virtuous and vicious alike, allows the vicious to 
 slip through, and ensnares the few people whose 
 consciences would need no statute. 
 
 The writer was obliged to send to New York 
 at about this time for a jug of cooking wine. 
 He could not get it in Providence without 
 breaking the law,^ though it was notorious that 
 the law was being broken daily. 
 
 The number of persons who are habituall}^ or 
 often drunk, in proportion to the whole number 
 who drink liquors, is not as large as we generally 
 suppose. In the city of Providence, the popula- 
 tion of 1873 was, in round numbers, 85,000. 
 
 "During the year 1873, in the total number of 
 arrests there were 4,211 different persons, instead of 
 5,920 ; there being 1,040 persons previously arrested 
 for the same offence during the year from two to 
 twenty-three times, and is equal to 1,709 arrests ; the 
 number of non-residents arrested was 1,140. By 
 deducting these, we have but 3,071 persons arrested 
 for drunkenness that were actual residents of this 
 
 1 At that time a few dealers were selling on licenses not ex- 
 pired. But they were not of the class with whom the writer is 
 wont to deal. Neither the grocer nor apothecary could then 
 legally sell a gallon of cooking wine. 
 
96 PROHIBITORY LIQUOR LAW. 
 
 city, — the number of repeaters being equal to 29 
 per cent of the total arrests, and the number of non- 
 residents equal to 19 joer cent, — making the num- 
 ber of repeaters and non-residents equal to 48 per 
 cent of the whole number. The number of repeat- 
 ers has gradually decreased during the past four 
 years. This may, to a very great extent, be attrib- 
 uted to the good influences brought to bear through 
 the united labors of the various temperance organi- 
 zations in the city and state.^ 
 
 Respecting the non-residents, the report says 
 " tbey were employed in laying water-pipes for 
 the introduction of Pawtuxet water, in building 
 sewers and reservoirs, and in widening streets, 
 &c. I think I am safe in saying that eight-tenths 
 of this number were men of intemperate habits, 
 and a very large proportion of them are classed 
 among the repeaters for the last four years." 
 
 If the matter of drinking was confined to these 
 unfortunate wards of the police, it might per- 
 haps be more easily controlled. But look at the 
 facts. In 1872, the police report 22 drug stores 
 selling under license, and 358 other places of 
 sale, making 380. In 1873, there were about as 
 
 1 Eeport of the Chief of Providence Police, p. 15. 
 
THE WORKING OF PROHIBITION. 97 
 
 many ; it is not a question of strict prohibi- 
 tion ; the new act did not begin until July, 1874. 
 These 380 places would furnish a shop for every 
 12 of the above-named 4,211 common drunkards. 
 Twelve customers would hardly support a shop, 
 even if they drank without cessation. Besides, 
 no traffic was ever sustained by that class of per- 
 sons exclusively. A traffic so extensive as this 
 gets a portion of the wages of solid industry, 
 or it could never sustain its wide proportions. 
 
 The writer was able to investigate the drink- 
 ing habits of a group of 168 adult workingmen. 
 It was a picked force, common laborers, with a 
 fair proportion of skilled men. Of these, ^% were 
 abstinence men, and 100, or about 60 per cent, 
 drank alcoholic liquors more or less. None of 
 these were habitual drunkards, and very few 
 were occasionally intoxicated. These latter 
 were most affected by the Sunday drinking, 
 which is the worst form of intemperance. 
 Hardly any of these men were to be found 
 among the arrested, resident or non-resident. 
 A man of this class would lose caste among his 
 
 fellows should he be arrested. These are not 
 5 Q 
 
98 PROHIBITORY LIQUOR LAW. 
 
 "statistics," but actual facts, and other groups 
 of laborers v/ould doubtless afford similar re- 
 sults. The point at issue is not whether it is 
 wise or unwise for these men to drink liquors, 
 but whether society, as a whole, can absolutely 
 prohibit an appetite which fully one-half of the 
 respectable laboring people consider reasonable. 
 Of the habits of the so-called upper classes, the 
 reader can judge for himself. 
 
 It is acknowledged that while the legal meas- 
 ures are being pushed, the efforts of the Temples 
 of Honor and other voluntary temperance asso- 
 ciations in Rhode Island are lessened, and the 
 corresponding results are less. These associa- 
 tions and all methods of temperance reform need 
 a constant supply of personal enthusiasm, and it 
 is this vital influence which affects the drunkard 
 and forces him to change his habits. Naturally, 
 while the prohibitionists are praying to Hercu- 
 les, and trying to force the law into impossible 
 channels, the enthusiasm which would find a 
 legitimate exercise upon individuals is absorbed 
 and lost in grinding at the great government 
 
 mm. 
 
THE GROUNDS OF PROHIBITION. 99 
 
 THE GROUNDS OF PROHIBITION. 
 
 TT may be useful to look toward the grounds 
 on which the prohibitionists rest their argu- 
 ments, and to consider the subject from their 
 point of view. In 1866 and 1867 a strong peti- 
 tion was made to the Massachusetts legislature 
 for a license law, or for such change in the then 
 prohibitory statute as would recognize the sale 
 of liquors. This petition was supported by 
 Governor Andrew, and a joint special commit- 
 tee devoted long sessions to the hearing of tes- 
 timony on both sides. Numbers of leading 
 citizens, representing almost every vocation, 
 were examined by one party or the other. 
 ReA'. Dr. A. A. Miuer, a distinguished Univer- 
 salist divine, appeared for the Massachusetts 
 Temperance Alliance and the remonstrants, or 
 the supporters of the prohibitory statute. The 
 
100 PROHIBITORY LIQUOR LAW. 
 
 remonstrance was strong and weighty, repre- 
 senting generally the influence of " the active 
 friends of temperance, the tried and true co- 
 laborers," using the language of their own re- 
 port. The petition failed. 
 
 Dr. Miner's argument ^ lasted three and a 
 half hours, and fills a pamphlet of 122 pages. 
 As might be supposed, from the gravity of the 
 occasion, he gathered all the points relied on by 
 prohibitionists, and we shall quote freely from 
 his exposition. In one sense the argument, as a 
 whole, sujDports our main issue, for it is a total 
 abstinence plea addressed to a majority in a 
 legislature constituted in the manner we have 
 described. As we claim that legislation must 
 ground itself on the actual life of the whole 
 people, and not on the moral desires of a faction, 
 however worthy that desire may be, it is a strong 
 collateral proof of our position, that the prohibi- 
 tionists must argue teetotally and not generally. 
 
 To get the drift of the argument, we will 
 
 1 Argument on the Eight and Duty of Prohibition. A. A. 
 Miner. Boston : Wright & Potter, Printers. 
 
THE GROUNDS OF PROHIBITION. 101 
 
 state, briefly and clearly as we can, the points 
 which he makes, some by proof and some by 
 assertion, in the order in which they stand : — 
 
 — The agitation is a liquor-dealer's movement. 
 
 — Teetotalism is the only temjoerance — and bet- 
 ter than any use of liquors. 
 
 — A strong array of statistics, showing the ma- 
 terial cost and increase of disease by intemperance ; 
 also the indirect cost through crime. 
 
 — " Alcohol is classed as a poison."^ This asser- 
 tion is nowhere established. There is much contra- 
 dictory testimony discussed on respiratory food, 
 and especially whether "alcohol is assimilative, that 
 it does the office of food by arresting the disintegra- 
 tion of tissues." The weight of testimony cited by 
 the Doctor bears toward this latter view, but he 
 claims the opposite. He keeps to his direct state- 
 ment that it is poison, though he does not bring 
 sufficient proof ^ 
 
 — The general inutility of alcoholic beverages is 
 established through Dr. Carpenter. 
 
 1 Argument, p. 44. 
 
 2 Dr. Miner relies much on the statement of " the elder Dr. 
 Bigelow, that if intoxicating beverages had never been dis- 
 covered, the well-being of the race would have been promoted." 
 The writer respectfully suggests to both the reverend and the 
 medical gentlemen, that is one of the mysterious things " no 
 feller can find out." 
 
102 PROHIBITORY LIQUOR LAW. 
 
 — There is less drunkenness in Massachusetts 
 than in wine-drinking countries. 
 
 — " There is not the slightest evidence of the 
 Scriptures giving any countenance whatever to the 
 "use of fermented liquors." -^ " Paul was a total ab- 
 stainer, Timothy was a total abstainer." ^ 
 
 — Liquors may be useful as medicines, but not as 
 beverages; even if useful as beverages, social ex- 
 ample requires abstinence. 
 
 — Disputes Stuart Mill's position, that drinking 
 is a right of individual liberty; claiming that the 
 social right of restraint is equivalent to right to sup- 
 press obscene books, or to restrain truancy, and tax 
 for education of the truants. He shows no direct 
 argument for the legal right of prohibition, but 
 claims the right negatively.^ 
 
 — Answering an argument that the law is not 
 executed in Boston, he makes three points : — I. The 
 authorities are to blame therefor. II. It is executed. 
 
 1 Argument, p. 66. 
 
 2 Argument, p. 71. 
 
 3 We cite from page 82 : — " Few, if any, witnesses here 
 have pointedly denied the right of the government to maintain 
 a prohibitory law. Perhaps ex-Governor Clifford is an excep- 
 tion to this remark. When asked if such an enactment does 
 not transcend tlie legitimate authority of the State, he an- 
 swered, ' undoubtedly.' At the same time, he proceeded to 
 say that the State has a right to enact laws which, without 
 attempting the impossible, shall restrain the sale and use of in- 
 toxicating beverages." 
 
THE GROUNDS OF PROHIBITION. 108 
 
 III. The same amount of non-execution would exist 
 under a license law. 
 
 — Public opinion sustains prohibition. 
 
 — That under the state constabulary the traffic 
 and drunkenness in Boston both diminished in two 
 months. 
 
 — That club-rooms spring up, but they need 
 not. 
 
 — Desire for social excitement, claimed as inherent, 
 is actually promoted by drinking usages, and is arti- 
 ficial, to be cured by rearing several generations free 
 from drinking usage. 
 
 — Natural obstinacy excited by prohibitory law 
 " applies to every criminal law and to every criminal 
 act as well as to this." 
 
 — The grand democracy of om* institutions can 
 suppress the traffic, though the old world fails.^ 
 
 — Discretion should not be given towns nor cities. 
 License is a reversal of prohibition. " Everywhere 
 rich voluptuaries will combine with irabruted igno- 
 rance to bear down the sober industry of the com- 
 monwealth." ^ " If I were to define a license law, 
 stringent or otherwise, engrafted upon our present 
 law or standing alone, I would say that it is a legal 
 means of recruiting the army of drunkards with the 
 approbation of ex-governors of the commonwealth, 
 
 1 Argument, p. 104. 2 Argument, p. 107. 
 
104 PROHIBITORY LIQUOR LAW. 
 
 whiskey-drinking priests, and members of the Fac- 
 ulty of Harvard Medical College." ^ 
 
 — Kespectable traffic is impossible. " Massachu- 
 setts cannot enact a law that will make the selling 
 of liquors respectable. If the angel Gabriel should 
 come down to earth and sell liquors as beverages, he 
 would not lift the business up to heaven, but the 
 business would drag the angel down to hell." ^ 
 
 — Alleged duplicity of temperance men retorted 
 on " moderate indulgers." " Take the quantity and 
 the quality of the liquors adulterated ; take the ter- 
 giversations, subterfuges, and evasions of those who 
 say they will obey the law and do not ; take all 
 these into account, and we liave duplicity, and 
 enough of it. Kemeraber that here is a foe to be 
 watched, to be guarded ; and if you have a strong- 
 hold on this enemy, in the name of righteousness 
 and of good order, I exhort you not to let go that 
 hold." 3 
 
 The writer solemnly affirms, as the Friend 
 would say, that in drawing out this analysis he 
 did not mean to make the points turn against 
 the argument. Not every point made is quoted 
 in detail, — our space would not allow it, — but 
 
 1 Argument, p. 110. ^ Argument, p. 110. 
 
 8 Argument, p. 120. 
 
THE GROUNDS OF PROHIBITION. 105 
 
 every strong one is stated, and as fairly as we 
 are able. 
 
 Dr. Miner is an able contestant, and a man 
 of high moral standing. He would not use 
 these same arguments, and in the manner he 
 uses them, before the Supreme Court, nor before 
 a jury of his peers, men of intelligence equal to 
 his own ; he knows cause and effect too well. 
 He spoke representative!}' to the Joneses elected 
 as we indicated, to the galleries, and to the de- 
 voted but unreasoning pressure behind. He 
 knew their prejudices, and he carried his men 
 with him, defeating John A. Andrew, who was 
 one of the few American politicians with a 
 statesmanlike comprehension. N'o man yet ever 
 questioned the sincerity of his character. 
 
 There is no difference of opinion betwet-n 
 Andrew, Miner, or the writer on intemperance, 
 the evils of intemperance, and the desirability 
 of limiting drink and the facilities for drinking 
 to the lowest minimum society will undertake 
 in good faith and maintain effectually. The 
 difference is, that some of us think there is such 
 6* 
 
106 PROHIBITORY LIQUOR LAW. 
 
 a thing as temperance in the use of liquors ; that 
 the habits of society show this, and that it ought 
 to be recognized positively in the law ; that the 
 law should make legal what is a gross and open 
 matter of fact, that the illegality should be con- 
 fined to abuse in drinking, and to criminal abuse 
 of the drinker, by the seller or by anybody else. 
 Now these differences of opinion are based on 
 facts, or they are not. If they are difference 
 of fact, no amount of screaming at an unchris- 
 tian and immoral world, no calling of persons by 
 hard names, will overcome the difference. 
 
 If teetotalism is the only moral basis ; if spir- 
 ituous and fermented liquors are poisons, like 
 strychnine and arsenic ; if sober industry never 
 drinks ; if to drink at all is unscriptaral and un- 
 christian ; if the great majority of Massachusetts 
 people, in view of such plain truths, had made 
 up their minds not to drink at all, why, in the 
 name of reason, did not such a moral power 
 show itself in the daily average life of the 
 people of the State ? 
 
 If only " rich voluptuaries," '' imbruted ig- 
 
THE GROUNDS OF PROHIBITION. 107 
 
 norance." and a few "godly men in error" 
 were on the wrong side of this qnestion, what 
 causes can exphiin the enormous differences of 
 social opinion and social action in the matter? 
 An argument of this sort must sustain itself on 
 all sides, or it topples over the sooner for the 
 extra weight on one side. If these assertions 
 were all proofs, and the proofs had their foun- 
 dation in facts, just as they occur ; that is, in the 
 facts of common sense and common experience, 
 then the statute would work itself out as simply 
 as the law against stealing. According to the 
 Doctor's theory, and to frequent statements of 
 abstinence politicians, the whole country portion 
 of Massachusetts is reduced to strict temper- 
 ance under the operation of the law. Only 
 Boston and a few districts in the largest towns 
 dare to sell any liquors under these prohibitorj^ 
 statutes, they sa3^ " The valuation of Boston 
 is stated by Hon. Otis Clapp at 1415,000,000, 
 and the liquor interest at 140,000,000. John 
 Glancy (who he is I don't know), at the liquor- 
 dealers' meeting, placed the sum at 190,000,000 
 
108 PROHIBITORY LIQUOR LAW. 
 
 to 1100,000,000. I think the valuation con- 
 firms the last statement." ^ If only the consoli- 
 dated wealth, " ex-governors," and the lowest 
 orders of society have any interest in the sale 
 of liquors, how is this immense sum employed ? 
 Are fifty to one hundred millions of capital 
 briskly occupied in pouring liquors into Boston, 
 with the few large centres noticed and the 
 small reservoirs in Vermont and New Hamp- 
 shire, where similar laws prevail ? Connecticut 
 and Rhode Island draw their supplies from New 
 York ; and Maine must be left out of the ac- 
 count, for have we not been assured that she is 
 completely converted and sobered under the 
 blessings of her own original law ? Verily, there 
 is less "sober industry" in Massachusetts than 
 w^e had all supposed, or else this sober element 
 of society sometimes drinks, and helps to employ 
 this large aggregation of capital, — a kind of 
 capital which turns itself faster than any other 
 in commerce, and makes the quickest possible 
 returns of traffic. 
 
 1 Argument, p. 77. 
 
THE GROUNDS OF PROHIBITION. 109 
 
 Boston transacts a large business of all sorts ; 
 and here it is shown that more than ten per 
 cent of her whole property is employed in a 
 traffic which, according to prohibitory advo- 
 cates, is carried on with the outlaws and crimi- 
 nals of society, men who haA-e no rights under 
 the law. Evidently there is a mistake some- 
 where, and, as Ave think, it hes in this wilful 
 j)erversion of the facts. Good men exhaust 
 their moral energy in obtaining impracticable 
 statutes, and then shut their eyes to the plain 
 fact that they are broken at every corner. At 
 best the}^ institute temporary spurts of prohib- 
 itory energy, wdiich drive the corner-breakers 
 into secret retreats until the OA^erstrained ener- 
 gies of the prosecutors relax, when they come 
 out into da3*light again. These figures proA^e 
 the position taken in our next chapter, A'iz., 
 that one strong feature of these statutes as laAV 
 is, that they are so easily broken. Fifty to one 
 hundred millions of capital are accumulated ; 
 and the observation of a child for any period 
 of six months proves that this sum is not idle. 
 
110 PROHIBITORY LIQUOR LAW. 
 
 Tlie possessors of this immense force are satis- 
 fied in its profitable emploj^ment, or they would 
 not keep in the same traffic, turning hither and 
 thither with new expedients as the legislators 
 and prosecutors devise new methods in pursuit. 
 Just as the hare doubles away from his pursuers, 
 except that the pursuing law goes with soft and 
 easy feet, while the escaping liquor-seller has 
 the sharp teeth and desperate grasp of the hound. 
 We complain of their rapacious character as a 
 class. When and where were outhiws other 
 than rapacious, and who makes these men into 
 outlaws ? 
 
 Those who think unwise laws can be sus- 
 tained by the moral sense alone should con- 
 sider the old revenue laws of England. These 
 statutes grew weaker and weaker in enforce- 
 ment until nearly all the brandies, silks, and 
 other articles of high value were smuggled 
 from the continent, and freely hawked about 
 the streets of London at such prices that every 
 one could see the fact. The evil grew into 
 such proportions that a Whig leader, making 
 
THE GROUNDS OF PROHIBITION. Ill 
 
 a speech on revenue laws, drew an illicit pon- 
 gee from his pocket, flourished it, like a flag 
 of defiance, over the house of commons, and 
 absolutely blew his nose in the face of the 
 law-makers of the realm. It was the signal 
 for the death of the unwise system ; and well- 
 adjusted duties soon sent the silk handkerchiefs 
 through the customs and the smugglers into 
 honest industry. Did the Whig statesman 
 break the law? Technically, we must allow 
 that he did ; but in the better use of law and 
 statesmanship he did right when he showed 
 in open daylight the shams of society and the 
 inconsistency of the law. 
 
 We must invite notice just here to some 
 remarks of De Tocque\T.lle on the influences 
 which help " to mitigate that tyranny of the 
 majority " which he dreaded: — 
 
 " It must not, moreover, be supposed that the 
 legal spirit is confined, in the United States, to 
 the courts of justice; it extends far beyond them. 
 . . . Tiie Americans, wlio have made so many 
 innovations in their political laws, have introduced 
 
112 PROHIBITORY LIQUOR LAW. 
 
 very sparing alterations in their civil laws, and 
 that with great difficulty, although many of these 
 laws are repugnant to their social condition. The 
 reason of this is, that, in matters of civil law, 
 the majority are obliged to defer to the authority 
 of the legal profession; and the American law- 
 yers are disinclined to innovate when left to their 
 own choice. . . . Their (i.e., the judges') influence 
 extends far beyond the limits of the courts ; in 
 the recreations of private life as well as in the 
 turmoil of public business, in public and in the 
 legislative assemblies, the American judge is con- 
 stantly surrounded by men, who are accustomed 
 to regard his intelligence as superior to their 
 own." — Dtmocracy in America, I., 357, 366. 
 
 We should hardly expect the prohibitory 
 law-makers to take this high view of the office 
 and influence of lawyers. As a class, they 
 do not recognize the proper province of this 
 profession, looking on it as a sort of necessary 
 evil, and not a natural outgrowth of civiliza- 
 tion. Civil life has produced law and law- 
 yers, and they are bulwarks of liberty as well 
 as of good morals. We should expect that in 
 arguing for a law the prohibitory men would 
 
THE GROUNDS OF PROHIBITION. 113 
 
 produce all the legal authority they could 
 muster; accordingly, we looked for some abso- 
 lute opinion that the prohibitory statutes are 
 good law through and through ; but, as stated 
 in the analysis, we failed to discover it. They 
 bad eminent lawyers on the stand, but could 
 only get such semi-patriarchal, semi-legal ex- 
 pressions as these : " If the prohibitory law 
 could be executed so as entirely to suppress 
 drunkenness, without any evil to the community 
 from the absence of the means of drunken- 
 ness," he was ''not prepared to say that a 
 prohibitory law might not be a subject of legis- 
 lation, without regarding the sale and use of 
 intoxicating beverages as especially sinful." — 
 Hon. Joel Parher?- 
 
 Hon. Emory Washburn would " sustain the 
 present law and prohibit the sale of liquor 
 if he could ; and if it should be carried out, 
 he would go the whole length of the mat- 
 ter." 2 
 
 None of these learned and wise men would 
 
 I Miner, Argument, p. 83. ^ Argument, p. 84. 
 
114 PROHIBITORY LIQUOR LAW. 
 
 say the law is good law, though they evidently 
 meant to throw their social influence on the 
 side of temperance, and even of prohibition, 
 if this could be made practicable. They 
 were waiting, in the same posture the courts of 
 law were in, until society should show itself 
 in earnest either to stop drinking and selling 
 liquors or else to give up an impossible under- 
 taking. No one who has studied social devel- 
 opment and social law supposes the question 
 will remain in such perplexing doubt for all 
 time. 
 
 To understand the guarded statements of 
 these lawyers, we must consider the nature of 
 the statutes themselves : — 
 
 "The seizure clause, Judge Sanger says, is the 
 most efficient iustrumentahty of the Law, and with 
 which there is no difficulty whatever in the exe- 
 cution of the law. Whether the jury agree or dis- 
 agree, the Hquors are held, in which case they 
 are practically confiscated; and if the dealer lays 
 in another stock, that stock may also be seized." ^ 
 
 This would be cool talk for the emperor of 
 
 1 Argument, p. 87. 
 
THE GROUNDS OF PROHIBITION, 115 
 
 all the Russias to utter, whatever people may 
 thmk of it in this latitude. But these New 
 Engiand States maintain the strongest govern- 
 ment the world has ever known : it can stand a 
 great deal of imprudence and unwisdom. The 
 lawyers do not hold that arbitrary power can 
 never be exercised for social purposes. It is one 
 of the nice questions of social order when it is 
 to be exercised, and then it must be used in the 
 least possible amount ; above all, it must be ef- 
 fective. A captain is allowed to cut away his 
 mast only in extreme peril, and because it is 
 an aggravation of the immediate danger. He 
 proceeds at once to replace it. The institutions 
 these arbitrary statutes endanger, viz., the right 
 of property, trial by jury, pure testimony, gen- 
 eral respect for law, &c., are to society as the 
 masts and rigging are to a ship. To attempt to 
 run good morals by breaking or impairing these, 
 is as wise and proves to be as effective as it 
 would be to sail a ship into safety by cutting 
 away masts and supports. 
 
 It is worth while to cite from INIill the state- 
 
116 PROHIBITORY LIQUOR LAW. 
 
 ment of the Secretary of the British Temper- 
 ance Alliance in his letter to Lord Stanley ; — 
 
 "If any thing invades my social rights^ certainly 
 the traffic in strong drink does. It destroys my 
 primary right of security, by constantly creating 
 and stimulating social disorder. It invades my 
 right of equality, by deriving a profit from the crea- 
 tion of a misery I am taxed to support. It impedes 
 my right to free moral and intellectual develop- 
 ment, by surrounding my path with dangers,^ and 
 by weakening and demoralizing society, from which 
 I have a right to claim mutual aid and intercourse." 
 
 Mill replies : — 
 
 " A theory of social rights, the like of which prob- 
 ably never found its way into distinct language, — 
 being nothing short of this, that it is the absolute 
 social right of every individual that every other 
 individual shall act in every respect exactly as he 
 
 1 We believe if the abstinence reformers, to whose noble qual- 
 ities we have paid grateful respect, only had a little sense of the 
 humorous, tliey would see the fatal inconsistency of many of 
 their positions and efforts. This preposterous issue can only 
 be met by a joke. The writer has a weakness for warm 
 stewed lobsters at supper, yet he is pretty sure of a nightmare 
 if he indulges the appetite. Now, if we should gravely under- 
 take a crusade against the lobster-dealer for surrounding our 
 path with dangers, &c,, would it not be funny 1 
 
THE GROUNDS OF PROHIBITION. 117 
 
 ought ; that whosoever fails thereof in the smallest 
 particular violates my social right, and entitles me 
 to demand from the legislatm'e the removal of the 
 grievance. So monstrous a principle is far more 
 dangerous than any single interference with liberty : 
 there is no violation of liberty which it would not 
 justify." 
 
 It is hardly worth while to discuss Miner's 
 counter-argument, that as truant children are 
 restrained and educated, obscene books prohib- 
 ited, &c., so social rights are established, and 
 liberty restrained at the will of society. Minds 
 which can see no difference between truancy 
 and the right of an individual to drink, with a 
 consequent right to purchase liquors, will legis- 
 late blindly ; the}^ will not stop at distinctions. 
 Mr. Mill and the secretary embody some of the 
 most important social issues in their two state- 
 ments, and the writer can add nothing to the 
 complete refutation the philosopher gives the 
 reformer. People who think with the secre- 
 tary look on a statute, having a good moral in- 
 tention once established by a majority vote, as 
 having the same force as a law of God; no 
 
118 PROHIBITORY LIQUOR LAW. 
 
 matter how it is executed, if the intention of 
 the makers was good, then the statute is a part 
 of the great moral scheme of the Ahnighty gov- 
 ernment. This applies to social and moral law 
 much the same principle which the Roman ec- 
 clesiastics executed upon Copernicus with his 
 physical laws. As the statutes of the church 
 were established, then it was a law of God that 
 the solar system could not move. As Mill 
 indicates, the province of law is to work out 
 ordinary social life with least oppression to the 
 individual. Perfect government is for God 
 alone, and God's laws, whatever be the theory 
 of their transmission, establish themselves in 
 the human soul through means of their own — 
 that is, in kind, — and not by mere majority 
 votes. 
 
 While we are treating with the prohibitionists 
 on- their own grounds, let us consider their 
 methods of administration : — 
 
 " Mr. Frank Edson, agent of the town of Hadley, 
 testified that liquor-drinking was on the increase, 
 and that clubs had sprung up in neighboring towns, 
 
THE GROUNDS OF PROHIBITION. 119 
 
 instanciog Xorthampton. It appeared, on cross- 
 examination, that he was not a total abstainer, that 
 he had joined one of the objectionable clubs at 
 Northampton, and that liquors were drank in that 
 club. 1 submit that such testimony is not compe- 
 tent. I believe that men who come up here and 
 set forth the evils which they allege grow out of 
 the law, and then turn around and confess that they 
 are aidinsr and abettingr the breakinsj of the law 
 themselves, are witnesses whose testimony should 
 be received with great caution." ^ 
 
 The point Dr. Miner has under consideration 
 is matter of fact, as to whether there are clubs 
 or uot. It was notorious that such clubs grew 
 up wherever the law was actually enforced. 
 Now, any legal or gOYernmental expert would 
 hold that frank testimony like the above should 
 be welcomed in any practical issue of govern- 
 ment. A man who was manlv enoug^h to con- 
 fess his own knowledge of such evil practices 
 would, under most social systems, be encour- 
 aged if he was telling the truth. The point to 
 be ascertained was whether the law made temp- 
 tations which hurt the "public welfare," as 
 ' Argument, 100. 
 
120 PROHIBITORY LIQUOR LAW. 
 
 Paley has it. If no one could tell the truth but 
 a man who totally abstained, then society was 
 at low ebb, for those were few, as we have 
 shown. Few persons would treat their own 
 sons in this way, if they were bearing testimony 
 as to the working of laws the parents had set 
 over them. Probably the Joneses elected by 
 coalitions took heed and " spotted " all the Ed- 
 sons and similar men ; but was the town of 
 Hadley, though it might receive a new liquor 
 agent, benefited by this snubbing of a man who 
 tried to tell the truth ? 
 
 We have dwelt upon this point, because it 
 illustrates much of the prohibitory method both 
 in argument and in practical administration. 
 
PROHIBITION AND REGULATION 121 
 
 PROHIBITIOISr AND REGULATION. 
 
 'TpHE use of liquors should be regulated and 
 the abuse prevented so far as possible. 
 The traffic is dangerous, but is none the less 
 necessary. The prohibitionists have always 
 treated their various statutes, forbidding the 
 sale of alcoholic liquors, as if they were mere 
 rules for the good order of society. All societies 
 make laws to promote the health of their peoples, 
 and to stop nuisances or hurtful influences. No 
 society or legislature has ever declared alcoholic 
 liquors to be absolutely hurtful, nor has gone 
 so far as to make the use and sale of liquors a 
 nuisance in theoretical principle. This course 
 would have brouofht the reformers ao-ainst the 
 rocks of positive law, and they must take an- 
 other direction. Accordingly, they admit the sale 
 6 
 
122 PROHIBITORY LIQUOR LAW. 
 
 under certain narrow restrictions, which must 
 save the whole process from its conflict with posi- 
 tive law. Then they proceed to cut off the sale 
 of liquors as beverages, without establishing the 
 fact that they are not beverages* legally con- 
 sidered. In view of the facts of experience, and 
 of the common habits of the society legislated 
 for, is this in any fair sense a regulation of a 
 traffic ? 
 
 In debating the true meaning of a law or 
 a custom, it is well to look into the words 
 themselves which divide the issues. Words 
 are more than names ; they are the moulds 
 into which fluid ideas cast themselves. When 
 the idea decaj^s, the word is either dropped 
 out of use or becomes the ready-made shell 
 for another idea kindred to it. Webster and 
 Worcester define the word " prohibition " in 
 terms nearly identical, — ''An interdiction; a 
 forbiddance." They both quote in exposition 
 
 1 " That spirituous and intoxicating liquors were still prop- 
 erty, notwithstanding this act (Maine Law in Rhode Island), 
 is certain." — B. R. Curtis, Circuit Court Reports, p. 328. 
 
PROHIBITION AND REGULATION. 123 
 
 from Tillotson, viz. : " The law of God in tlie 
 Ten Commandments consists mostly of 'pro- 
 Jiihitions ; thou shalt not do such a thing." 
 Let us look at the synonyms for regulate. 
 " To direct, as applied to the admiuistration 
 of affairs, is more authoritative than to con- 
 duct, while conduct is more active or oper- 
 ative. Regulate stands midway between." ^ 
 Is there any actual correspondence or kindred 
 agreement between these two terms ? The 
 first word embodies the power of direct, posi- 
 tive law, that portion of it which lies deepest 
 in us. " The whole or a portion of the laws 
 set by God to men is frequently styled the 
 law of nature, or natural law ; being, in 
 •truth, the only natural law of which it is 
 possible to speak without a metaphor, or 
 without a blending of objects which ought 
 to be distinguished broadly. But, rejecting 
 the appellation ' law of nature ' as ambig- 
 uous and misleading, I name those laws or 
 rules, as considered collectively or in a mass, 
 
 1 Synonyms Discriminated. By C. J. Smith. 
 
124 PROHIBITORY LIQUOR LAW, 
 
 the Divine law,, or the law of GrodJ'''^ There is 
 the root of prohibition, which old Tillotson 
 found out; the tables of stone brought these 
 strong bonds of order down to us ; let any 
 legislator beware of trifling with these divine 
 laws. 
 
 A statute, in order to base itself on this 
 strong and divine foundation, should carry 
 with it the imperative moral sense, the over- 
 whelming accord of the society enacting it, 
 and at the time of its enactment. We might 
 draw many interesting illustrations from the 
 history of American slavery, but let us take 
 simpler experience. Suppose a village owned 
 a public square, around which some of the 
 villagers wished to play base ball. Before 
 any statute could be made, a yqtj large 
 majorit}^ must agree whether they would play 
 ball at all. If there was a public discus- 
 sion to settle the principles of ball plajdng, 
 as to whether a ball properly made, prop- 
 erly handled, would or would not break the 
 
 1 Austin's Jurisprudence. Ed. 1873. I. 88. 
 
PROHIBITION AND REGULATION 125 
 
 windows exposed, would or would not break 
 the thumbs of players, would or would not 
 break the heads of little boys, the results could 
 not be embodied in a statute until certain defi- 
 nite principles were settled. Before they could 
 regulate ball playing so that the minority 
 would not be oppressed, society as a whole, 
 not a mere majority, must decide the main 
 question whether they would play ball at 
 all, where the public had common rights. A 
 statute to police the operation would effect 
 little while property-owners had rights which 
 the discussion could not touch. This is an 
 illustration, and not a parallel. Balls do not 
 mean whiskey, nor bats the clubs which ruf- 
 fians use to knock over temperance law-makers ; 
 we are only trying to make the above state- 
 ment clear. 
 
 Again ; hardly any sane person would 
 think of making a statute at this day to stop 
 the sale of playing-cards, whatever his own 
 opinion of cards might be. He might reg- 
 ulate the sale by any restriction utility might 
 
126 PROHIBITORY LIQUOR LAW. 
 
 demand. He would forbid their sale to mi- 
 nors, or sale for use in gambling, or un- 
 dertake any such method which could be 
 established judiciously. But fifty to one hun- 
 dred years ago, in New England, a law pro- 
 hibiting the sale would have found ready 
 obedience. Playing-cards have not changed, 
 nor has New' England lost its reverence for 
 law meanwhile. But the attitude of society 
 toward amusements has changed largely. To 
 the old Puritan, any game of chance was an 
 offence against the law of God ; he would pro- 
 hibit cards totally. Playing-cards in the modern 
 view (which sustains a statute against gam- 
 bling) carry with them elements of evil, yet 
 society will not cut itself off from their use 
 because gamblers abuse them. 
 
 These prohibitory statutes can have only one 
 place in the system of civilized law : this system 
 divides itself into three classes : — 
 
 " The first comprises the laws (properly so 
 called) which are set by God to his human creat- 
 ures. 
 
PROHIBITION AND REGULATION 127 
 
 " The second comprises the laws (properly so 
 called) which are set by men as political superi- 
 ors, or by men, as private persons in pursuance 
 of legal rights. 
 
 " The third comprises laws of the two follow- 
 ing species : 1. The laws (properly so called) 
 which are set by men to men, but not by men 
 as political superiors, nor by men as private per- 
 sons, in pursuance of legal rights. 2. The 
 laws which are closely analogous to laws proper, 
 but are merely opinions or sentiments held or 
 felt by men in regard to human conduct. 
 
 " I name laws of the first class the law or laws 
 of Grod^ or tlie Divine law or laws. 
 
 " For various reasons, which I shall produce 
 immediately, I name laws of the second class 
 positive law^ ot positive laws. 
 
 " For the same reasons, I name laws of the 
 third class positive morality^ rules of positive 
 morality^ or positive moral rules. . . . 
 
 " The name morality^ when standing unquali- 
 fied or alone, may signify the human laws, 
 which I style positive morality, as considered 
 
128 PROHIBITORY LIQUOR LAW. 
 
 without reference to their goodness or bad- 
 ness.'' 1 
 
 These liquor statutes fall under the second 
 division of the third class : they are analogous 
 to laws proper, but are merely legal formulas 
 for carr3dng into effect the opinions or senti- 
 ments held or felt by men in regard to human 
 conduct. Or, as we said on another occasion, 
 they formulate the sentimental consciousness of 
 the majority into a statute which shall attempt 
 to make morals for the minority. 
 
 Mr. Austin 2 does not state, nor do we mean 
 to claim through him, that a statute under this 
 class is necessarily bad law. We admit that if 
 the great mass of society were totally abstinent, 
 a statute against the sale of liquor as a bever- 
 age might be maintained as an administrative 
 expedient. There would then be an efficient 
 "sanction" of the law, as the jurists' term 
 
 1 Austin's Jurisprudence, I. pp. 174-176. 
 
 2 We believe the authority of Austin is not disputed in the 
 main principles of jurisprudence. Jolm Stuart Mill says of him : 
 " He accomplished through life little in comparison with what 
 he seemed capable of; but what he did produce is held in the 
 very highest estimation by the most competent judges." 
 
PROHIBITION AND REGULATION. 129 
 
 runs.^ The fact that it would be so easily main- 
 tained would almost make it unnecessary. We 
 do not need a statute against killing to "quicken 
 our moral sense of crime. We need it to catch 
 the murderer, and hang or imprison liim. The 
 sanction of the law is anterior to it, and is not 
 created by it. If people, or the great majority 
 of people, did not desire to drink, then it would 
 be easy to control the selhng of liquor. Prohi- 
 bition or regulation would then iidjust itself to 
 the positive morality of the law, which would 
 become moral in the true sense, in that it would 
 embody the best conviction of society. But 
 to make the seller a criminal while the drinker 
 commits no crime in drinking, is a legal absurd- 
 ity, which the common sense of the community 
 has detected, as their average conduct shows. 
 Compare Burke, III. 819: — 
 
 ^ " The object of this law does not appear to be so much 
 ' for the suppression of drinking-houses and tippling-shops/ as 
 its title would seem to import, as for the destruction of intoxi- 
 cating liquors — because they may be injurious to the commu- 
 nity. The main principle of all these statutes is the same. 
 The later ones are changed only in details." — Curtis^ Circuit 
 Court Reports y p. 337. 
 
 6* I 
 
ICO PROHIBITORY LIQUOR LAW. 
 
 " No other given part of legislative rights can be 
 exercised, without regard to the general opinion of 
 those who are to be governed. That general opinion 
 is the vehicle and organ of legislative omnipotence. 
 Without this, it may be a theory to entertain the 
 mind, but it is nothing in the direction of affairs. . . 
 In effect, to follow, not to force, the public inclina- 
 tion ; to give a direction, a form, a technical dress, 
 and a specific sanction to the general sense of the 
 community, is the true end of legislature." 
 
 Failing in this moral sanction, the prohibi- 
 tionists substitute the pressure of a majority 
 vote, and the feeling which the evils of intem- 
 perance always excite in any humane person. 
 Now, both these principles are powerful in their 
 legitimate sphere, but neither one can enforce 
 a statute law unless it be sustained by other 
 powerful influences, which combined, make up 
 even justice. Here is an appetite which is 
 Common, nay, well-nigh universal. Stimulants 
 are used from the poles to the equator, — a fun- 
 gus in Siberia ; betel and bhang or hemp in 
 Asia ; ava in Polynesia ; fermented mare's milk 
 in Russia, where it is too cold for vegetable fer- 
 
PROHIBITION AND REGULATION. 131 
 
 mentations ; mate in Soutli America ; coca leaf 
 in Peru; tea, coffee, tobacco, opium, alcoholic 
 and fermented liquors in all quarters of the 
 earth : all these attest a desire, a craving for 
 stimulants, which is more than cosmopolitan ; 
 it is human. A portion of the people in one 
 country assert that this desire is injudicious and 
 harmful. They prohibit all sale of alcoholic 
 stimulants, articles desired by the larger half 
 of the community, because, as^ they say, the 
 state should not allow rumsellers to make pau- 
 pers and criminals. The evidence is no more 
 certain that, a pauper or criminal will be made 
 when a man buys a glass of beer or whiskey, 
 than it is certain when a person buys a rope 
 that he will hang himself. Neither a majority 
 vote nor a moral sentiment will chanof-e this 
 essential principle, and make the gratification 
 of a natural appetite into a crime against the 
 state. There are two courses open to the mor- 
 alists. Either remove the desire from individ- 
 uals, or take control of the traffic and gratify 
 the desLre in its minimum. Imperial or Papal 
 
132 PROHIBITORY LIQUOR LAW. 
 
 Rome themselves could not make a third course 
 possible. If the legal traffic is absolutely sup- 
 pressed while the appetite remains, it merely 
 runs into illicit channels, as we have shown. 
 y An absolute proof of the exceptional and un- 
 natural character of prohibition is afforded by 
 its success in those rare cases where it has suc- 
 ceeded. For example, during the great Boston 
 fire it was easy to close all liquor shops and stop 
 the sale effectively for some days. This was a 
 despotic measure, made reasonable by the ex- 
 traordinary occasion ; therefore everybody, sell- 
 ers and drinkers, generally acquiesced. " In 
 the midst of arms the laws are dumb." Law,, 
 in its nature, must be fitted to the common liv- 
 ing of the people. 
 
 " Yet, though hot waters be good to he given to 
 one in a swound, they will burn his heart out who 
 drinks them constantly when in health. Extraor- 
 dinary courses are not ordinarily to be used, but 
 when enforced by absolute necessity." — Fuller's 
 Holy State. 
 
 As men are constituted to-day, as the princi- 
 
PROHIBITION AND REGULATION. 133 
 
 pies of civilized law are to-day, the point at 
 issue is, has a person a right, under the law, 
 to drink a glass or a teaspoonful of alcoholic 
 liquor ? If he has that right, he has a right to 
 buy it, and if the state interferes to regulate the 
 natural traffic, it is bound to furnish reasonable 
 means for the gratification of the buyer's desire. 
 
 If a man offended against the law of God in 
 drinking, then we could readil}^ bring the seller 
 under one of the great divisions of positive law 
 stated above. We are aware a few abstinents 
 take ground that drinking is an absolute infrac- 
 tion of God's laws, ^.e., by interpretation of 
 Scripture. Let them prove it, and the liquor 
 statutes will mend themselves very quickly. 
 
 To aggravate the results of contingent crimes 
 does not raise the tone of the community either 
 morally or according to positive moral law. 
 To maintain the moral tone of society in Eng- 
 land, only a short time since, they thought it 
 necessary to transport a petty thief, or even to 
 put him to death.i The practical result was, 
 
 ^ 1 It was not until 1811 that Romilly procured the repeal of 
 
134 PROHIBITORY LIQUOR LAW. 
 
 that there were more and worse hardened crim- 
 inals ; society was not bettered thereby. This 
 is merely an evidence of the bad working of 
 moral principles in unwise laws. By construc- 
 tively making an artificial criminal out of the 
 liquor-dealer, we have made these sellers into 
 a hard set morally ; we have not helped society, 
 nor the positive morality of the law. 
 
 If these things be so, the reader naturally 
 asks how could the laws be enacted or how 
 sustained? In our introductory statement we 
 sketched the process by which a legislature is 
 made, embodying the public sentiment which 
 creates these statutes. A majority is thus con- 
 structed out of heterogeneous and inconsistent 
 elements. We have seen its method of work- 
 ing and the results it produces in liquor statutes. 
 To comprehend the dangerous power of this 
 
 these cruel statutes ; then Lord Ellenborough opposed. " Steal- 
 inaj privately in a shop goods to the value of five shillings or in 
 a dwelling to the value of forty shillings were capital fel- 
 onies." Likewise they repealed " the ridiculously bloody en- 
 actment of Elizabeth, which made it a capital offence in soldiers 
 and marines to be found wandering about the realm without a 
 pass." 
 
PROHIBITION AND REGULATION 135 
 
 majority, let us heed the words of that saga- 
 cious and friendly observer, De Tocqueville : — 
 
 " When an individual or a party is wronged in 
 the United States, to whom can he apply for re- 
 dress ? If to public oj^inion, public opinion consti- 
 tutes the majority ; if to the legislature, it represents 
 the majority, and impHcitly obeys it ; if to the ex- 
 ecutive power, it is appointed by the majority, and 
 serves as a passive tool in its hands. The public 
 force consists of the majority under arms; the jury 
 is the majority invested with the right of hearing 
 judicial cases; and in certain States even the judges 
 are elected by the majority." . . . 
 
 " The majority possesses a power which is physi- 
 cal and moral at the same time, which acts upon the 
 will as much as upon the actions, and represses not 
 only all contest but all controversy." ^ 
 
 A power thus constituted makes a statute, 
 bringing the whole power of civil government, 
 with the weapons of arbitrary search and seizure, 
 to force the common people to stop buying 
 liquors for beverages. Arbitrary prohibition, to 
 exist with free institutions, must be enforced 
 in the common living of freemen, else there is 
 
 1 Democracy in America, I. 332, 337. 
 
136 PROHIBITORY LIQUOR LAW. 
 
 tyranny of one portion of the people over an- 
 other portion. When Mr. Seward's "little bell 
 tinkled," every thoughtful person shuddered, 
 yet he thought that our political life was in 
 imminent peril, and he submitted to this arbi- 
 trary stretch of power. Had Mr. Seward used 
 this privilege in any police service or matter of 
 regulation, in any way except for the very sal- 
 vation of national political life, he would him- 
 self have been "tinkled" into Fort Warren. 
 ^ A statute, before it becomes assured law, 
 must pass through the lower and higher courts. 
 They consider whether it is prohibited under 
 the constitution, or whether it conflicts with 
 other provisions of constitutional law already 
 established. Finally, they consider it in the 
 light of the great principles of reason and jus- 
 tice which underlie all law. In fact, these liquor 
 statutes have never been subjected to this cru- 
 cial test. The waves of moral sentiment have 
 driven the statutes forward from point to point, 
 in the manner De Tocqueville shows the major- 
 ity have power to do. One of the best features 
 
PROHIBITION AND REGULATION 137 
 
 of civilized law in Anglo-Saxon communities 
 is in its ability to adjust itself to tlie growing 
 life of the people. The courts, rigid and formal 
 as they are, sympathize with popular feeling, 
 and reflect it faintly in their conduct. This 
 was illustrated in the history of American sla- 
 very; the courts gradually swayed about until 
 they made into law the political action of 
 the people. Slavery never seemed so strong 
 as when it had the supreme court in its influ- 
 ence, and had established its arbitrary statutes 
 under the law. It was the recoil from this 
 tyranny over a free nation which sent people, 
 courts, and government into a war for its de- 
 struction. The courts have never passed on 
 the essential features of these arbitrary statutes. 
 They have been disposed to push the policing 
 power of the law to its extreme limit, in order 
 to give play to the sentiment and power of the 
 majority in its desire to suppress intemperance. 
 The great principles of positive law have never 
 yet been fully applied to a liquor statute. 
 
 Many partial and unjust laws stand on a like 
 
138 PROHIBITORY LIQUOR LAW, 
 
 insecure basis. The freedom from taxation of 
 church property, for example, is believed by 
 good authority to be unconstitutional. The 
 matter has never been tried. When the early 
 meeting-houses were built, that seemed the 
 easiest and simplest mode of establishing public 
 worship. Gradually, in our complex civiliza- 
 tion, it is growing into grave abuse. Probably, 
 as it grows worse, it will antagonize public opin- 
 ion until the courts feel the pressure and abolish 
 the evil. 
 
 Besides, as we have shown, the readiness to 
 be violated which was inherent in these pro- 
 hibitory statutes gave them an elasticity of 
 resistance they would not have had if better 
 executed. The lesions and breaks they con- 
 stantly received made the natural legal resist- 
 ance less violent. Why resist in the courts ai 
 law which was so easily broken in detail? 
 Few liquor-dealers would pay tens of thousands 
 of dollars to obtain a legal privilege of selling 
 when they were making hundreds of thousands^ 
 by selling illicitly. 
 
PROHIBITION AND REGULATION 139 
 
 " It is of great importance in a republic not only 
 to guard the society against the oppression of its 
 rulers, but to guard one part of society against the 
 injustice of the other part. Justice is the end of 
 government; it is the end of civil society."^ 
 
 Jefferson said : " The executive power in our 
 government is not the only, perhaps not even the 
 principal, object of my solicitude. The tyranny 
 of the legislature is really the danger most to 
 be feared, and will continue to be so for many 
 years to come." 
 
 These are not the shrieks of alarmists, but 
 the grave opinions of men who knew the 
 organization of this American society. In view 
 of this imperial power of the majority, with its 
 liability to abuse, it behoovQS us as citizens 
 to consider the exact relations of the majority 
 to every statute which they enact. 
 
 In the early portion of this chapter we re- 
 marked that a prohibitory and penal statute 
 should bring to its execution the overwhelm- 
 ing accord of society. Perhaps our thought 
 would be stronger if we should say natural 
 accord. Nature uses two forces mainly in her 
 1 Federalist, 51, Jas. Madison. 
 
140 PROHIBITORY LIQUOR LAW. 
 
 operations on our earth. One is tlie power 
 of Aveight, we call gravitation, and the other 
 is the power of growth, we call vital force. 
 A gardener lately contrived ingenious appara- 
 tus by which he made a growing squash lift 
 over two tons of weight. The simple weight 
 of the vegetable might be a hundred pounds. 
 It is this vital power of truth and justice 
 which gives natural force to the decrees of 
 a legislature. The majority can sit down with 
 its weight wherever it pleases ; it can gain vital 
 success for its decrees only when it adjusts 
 them to the great natural laws ingrained in 
 the nature of man himself. 
 
 • Law must be considered not in the light 
 of theory, but of common usage. . Putting 
 out of the account the criminal classes and 
 habitual drunkards, we would ask the reader 
 what proportion of his friends abstain from al- 
 coholic hquors. We mean by abstention, that 
 it be in practice absolute. You may apply the 
 medicinal limit at one point, your neighbor at 
 another ; but the expression " total abstinence " 
 
PROHIBITION AND REGULATION, 141 
 
 and its correlative " prohibition " are as strong 
 as language can make them. The writer has 
 seen decent people in a good many sections of 
 New England, and he has never yet found a 
 community where one person in every three 
 abstained absolutely. Now, we have shown that 
 prohibition is not regulation; that it has been 
 maintained in abeyance by the legal authority, 
 while the moral force of society might work 
 out the habits and ordinary living on which 
 any sumptuary statute must base itself. If 
 this change of living comes not, then the 
 statutes are tyrannical. It is hard for an 
 American, wrapped in party toils, hampered 
 by caucuses, and governed by politicians, to 
 comprehend that he may be the innocent cause 
 of a tyranny such as Madison so forcibly de- 
 scribes. Yet the writer believes that all of 
 us are implicated, as he will try to show. 
 
 The liquor statutes, viewed in a large sense, 
 are laws for sellers and drinkers both, — for you 
 and for me. Every law must have an effective 
 " sanction." 
 
142 PROHIBITORY LIQUOR LAW. 
 
 " ' Command ' and ' duty ' are, therefore, cor- 
 relative terms. . . . The evil which will probably 
 be incurred in case a command be disobeyed, 
 or (to use an equivalent expression) in case 
 a duty be broken, is frequently called a sanc- 
 tion., or an enforcement of obedience.^ ... a 
 punishment. But as punishments, strictly so 
 called, are only a class of sanctions, the term is 
 too narrow to express the meaning adequately." ^ 
 The " sanction, of the law against stealing is 
 not merely penal and criminal, it is in our ab- 
 horrence of the moral wrong. Now, when we 
 vote laws on these moral issues, from the various 
 motives stated in the foregoing, part}^ pressure, 
 moral uneasiness, social bearing, &c., we do not 
 consider this grand principle of sanction which 
 should first inspire our conduct, or our civic 
 attitude, as we have called it. We forget that 
 every right carries with it a corresponding duty, 
 we speak of right legally. When you enact 
 that one class of persons shall carry out a cer- 
 tain law, you thereby enlarge the right of these, 
 i Austin, Jurisprudence, I. 92. 
 
PROHIBITION AND REGULATION 143 
 
 and you obligate another class by a duty.^ The 
 law officers must execute ; all others compre- 
 hended must obey. jS'ow, the strange mist in 
 our minds has befogged the notions of temper- 
 ates in this regard. A moral right is essential 
 and sacred, born of the divine within ; a legal 
 right is a constructive and technical thing, by 
 which society administers order and justice. 
 While it lasts, it is strong as gravitation itself 
 in an Anglo-Saxon community^^ The slave 
 Burns was driven back into slavery under the 
 power of the State of Massachusetts, though 
 three-quarters of her freemen would have killed 
 every man who laid a hand on him, if simple 
 murder had been the only crime involved. 
 
 The use of liquor runs so easilj^ into passion- 
 ate abuse, that every man touches it nervously. 
 Above all, sensitive persons dread the influence 
 of their acts upon others. All this we formulate 
 at the polls into a legal right to restrain the 
 sale of the dreaded stuff; the legal duty which 
 
 ^ " Rights and obligations, though distinct and opposite in 
 their nature, are simultaneous in their origin, and inseparable 
 in their existence." — Bentham's Theory of Legislation, p. 93. 
 
144 PROHIBITORY LIQUOR LAW, 
 
 should follow Ave do not propose to ourselves, 
 but lay it upon others. Every t-emperate man 
 voting prohibition all these years has not pro- 
 hibited himself thereby, — he has meant to pro- 
 hibit somebody else. The sale and use of 
 liquors prove this. The temperate see a drunk- 
 ard in the gutter, an orphan in the asylum, a 
 whiskey- dealer wallowing in his gains ; they 
 transmute this moral sensibility into a legal 
 right of prohibition. This legal right thus be- 
 comes a tyranny, for there is no corresponding 
 change in the habits of the majority or of the 
 whole public. As said above, the legal right is 
 imposed by the majority, who must always in- 
 clude the temperates : the legal duty, the func- 
 tion of obedience, is laid on a minority. The 
 consequence is the same which has proceeded 
 from all tyrannies, — lying, fraud, plunder, and 
 suborning of testimony. These things have 
 been done by good men with good intentions, 
 but a moral purpose cannot sustain a legal right 
 or power, unless that right S3^mbolizes the actual 
 conduct of the people, and not their maudhn 
 sensibilities. 
 
PROHIBITION AND REGULATION 145 
 
 One essential cause of the weakness of these 
 statutes in their practical application is to be 
 found in the indirection, which is in their con- 
 ception and intention. They are made to stop 
 the sale of liquors. Why? Because the sale 
 is wrong. Why is it wrong ? Because people 
 drink them, and great harm ensues. Is it wrong 
 to drink liquors ? Here not one person in 
 ten could give an affirmative answer. No body 
 of legislators or voters has ever said or believed 
 that it is absolutely wrong to drink a glass of 
 liquor. Yet the statute proceeds as if it were a 
 crime to drink, and the seller was a participator. 
 
 The sale of lottery tickets is forbidden ; but 
 it is because they are used in gambling, and 
 gambling is against the law. 
 
 Bad houses are forbidden ; it is because forni- 
 cation is a crime under the law. 
 
 The sale of bad books is forbidden ; but it is 
 because they are bad in essence, and no one but 
 a few criminals claims otherwise. 
 
 The sale of gunpowder and other regulative 
 measures stand on different ground. 
 7 J 
 
146 PROHIBITORY LIQUOR LAW. 
 
 The action of prohibition is indirect ; it lays a 
 penalty on a deed which is not a crime, which, in 
 fact, never becomes a crime, but in certain con- 
 tingencies leads a man into drunkenness, and 
 thence he falls into crime. A process so winding 
 and circuitous necessarily carries crooked ways 
 and shaky proceedings ^ into the administration 
 of the law itself. Prosecutors, advocates, and 
 witnesses are all moving in a false light, which 
 deranges the perspective of common justice 
 and common judicial proceedings. The statute 
 which forbids sale has been broken. The per- 
 
 1 One Sypher, a longshoreman, was prosecuted by a liquor- 
 dealer for perjury in a liquor case, and we cite from the report 
 of the "Providence Journal," December 23 : — Sypher testified : 
 *' A bargain has been made between myself and Mr. Eead 
 {i.e., the state constable) to furnish testimony in liquor cases." 
 The state constable testified : " The defendant had entered 
 into connection with the state constabulary, and made an 
 agreement to furnish evidence in liquor cases." He made 
 memorandums in a book furnished by the constable. Another 
 witness testified that Sypher '' stated that he had entered into 
 a compact with the state constables, by which he was to re- 
 ceive -$5 for every case in which he testified ; he w^as asked if 
 he got $5 in case the' prosecution failed, and my impression is 
 that he answered that it made no difference whether the case 
 failed or not." These are the artificial crimes which artificial 
 laws breed and nourish. 
 
PROHIBITION AND REGULATION. 147 
 
 son who participated in tlie act, tlie drinker, 
 feels no sense of crime ; indeed, the law nowhere 
 makes him criminal. The communit}^ in which 
 the drinker moves — and a man rarely rises 
 above the moral sense of those around him — do 
 not regard the act of drinking as a crime. Then 
 the penalty is out of all proportion to the offence 
 involved. This affects the testimony, affects 
 the prosecutor, affects the court. It is well 
 known that it is hard to get a verdict for mur- 
 der from a jury, every member of which carries 
 a pistol in his pocket. The state is placed in a 
 position where it creates crime out of a simple 
 act, not in itself evil, pursues by testimony not 
 fair in the ordinary sense, and convicts under 
 an unwilling as well as blind justice. The 
 whole process, from the inception of the law to 
 the conviction of the criminal, is artificial and 
 not vital. 
 
 This and almost every argument against pro- 
 hibition is met by the rejoinder, " Society has a 
 right to protect itself." When used in a gen- 
 eral sense, this is one of those sins^ular maxims 
 
148 PROHIBITORY LIQUOR LAW. 
 
 or saws wliicli Bentliam terms a fancy. " What 
 is this reason? If it is not a distinct view of 
 good or evil, it is a mere fancy ; it is a des- 
 potism, which announces nothing but the in- 
 terior persuasion of him who speaks."^ Fully 
 expressed, the saying would be, " Society is all- 
 powerful. I think this act (whatever the same 
 may be) is a proper exercise of its power. 
 Others ousj'ht to think so. Therefore this act is 
 right." 
 
 We think this widely diffused notion merely 
 confounds the terms " sovereignty " and " right." 
 The sovereign power is absolute and " is legally 
 nncontrolled both from within and without." 
 A large number of persons and a few common- 
 wealths in the United States misinterpreted 
 this plain truth about the year 1861, and great 
 tribulation resulted thereby. An old fisherman, 
 whom the writer knew, though a man of strong 
 character, sometimes over-indulged in his cups. 
 One cold night, when in this state he turned 
 every member of his family out of doors, saying, 
 
 1 Theory of Legislation, p. 74. 
 
PROHIBITION AND REGULATION 149 
 
 *' I will be d — d if I don't show you Captain 
 Barber lives here." This absolute principle is 
 inherent in government ; it is oriental. But it 
 has been the business of civilized people of the 
 Teutonic and Anglo-Saxon races especially to 
 frame heavy checks and restraints which they 
 have imposed on this authority ; until the mean- 
 est citizen or smallest infant has rights before 
 which supreme arbitrary power itself must fold 
 its hands in dumb silence. " When the sover- 
 eign power commands its subj'ects to do or 
 forbear from certain acts, the claim for such 
 performances or forbearances which one person 
 thereby has upon another, is called a rigM ; the 
 liability to such performances or forbearances is 
 called a duty ; and the omission of an act com- 
 manded to be done, or the doing of an act com- 
 manded to be forborne, is called a wrongs ^ 
 
 '^ All sovereign legislatures, whether of one 
 
 or many, are, and are alone, the sources 
 
 from which all rio-hts flow. Yet we hear of 
 
 original rights, natural rights, &c. . . . All that 
 
 * Geo. Cornewall Lewis. Political Terms, p. 7. 
 
150 PROHIBITORY LIQUOR LAW. 
 
 those persons mean is, that in their opinion the 
 claims which they call rights ought, in sound 
 policy, to be sanctioned by law. It is the duty 
 of such persons to show that sound policy re- 
 quires what theif require."^ 
 
 The burden of proof lies on the maker of a 
 statute. He must show that the proposed meas- 
 ure forbids something evil in itself. This makes 
 a positive law against crime, which society 
 knows to be crime. These statutes need no 
 argument for their right to be ; the question is 
 merely one of methods. Or, in the second 
 place, he must show that his measure is proper, 
 in that it will prevent practices by which evil 
 IS directly incurred. The question then be- 
 comes one of experience ; the statute-maker 
 must above all things show that it will suc- 
 ceed.2 
 
 1 Geo. Cornewall Lewis. Political Terms, pp. 23, 24. 
 
 2 People talk of the easy success of these liquor statutes if 
 this or that could be granted. They forget the inherent diffi- 
 culties of the situation. We would say a States prison could 
 keep its inmates from drinking. Yet in Sing Sing an astute 
 convict entrusted with the vegetables managed to secrete pota- 
 toes, distilled them, and sold the whiskey to his fellows. 
 
PROHIBITION AND REGULATION. 151 
 
 " The legislator is not the master of the disposi- 
 tions of the human heart, he is only their interpre- 
 ter and their minister. The goodness of the laws 
 depend upon their conformity to general expecta- 
 tion. . . . To become the controller of expectation, 
 the law ought to present itself to the mind as cer- 
 tain to he executed; at least no reason for presuming 
 the contrary ought to appear. Is there ground for 
 supposing that the law will not be executed ? An 
 expectation is formed contrary to the law itself. 
 The law then, is useless. It never exercises its 
 power except to punish ; and these inefficacious 
 punishments are an additional reproach to the law." ^ 
 
 It is not enough to show that there is great 
 evil at work, and to stop it would be a good 
 thing. The makers of these secondary statutes 
 must show by overwhelming testimony that 
 their principle of legislation will do the work 
 and accomplish its ends, or else there is no 
 foundation, no right of being, for the law itself. 
 All the rights of society, inherent or acquired, 
 cannot go beyond these two principles stated 
 above. A people drunk with a passion, whether 
 of anger or of fanaticism, maj^ impose any stat- 
 1 Bentham. Theory of Legislation, pp. 148, 153. 
 
152 PROHIBITORY LIQUOR LAW. 
 
 "ute they please ; it may obtain an abstract foun- 
 dation, just as our friend, Captain Barber, 
 established his authority. But although, in one 
 sense, the sovereign power is never wrong, the 
 great principles of justice finally upset the stat- 
 ute. Nemesis pursues peoples and statutes as 
 well as individuals. 
 
 For example, the use of fine bolted wheaten 
 flour is a partial evil. If a majority, however 
 constructed, could impose a statute that every 
 one should eat coarse hulled flour, this measure 
 would fall within these fancied "rights," and 
 establish itself as a function of the state. It 
 would none the less be a tyranny, and even after 
 vested rights had been satisfied the law would 
 never become a living success. Fine white 
 bread would taste sweeter than ever, and each 
 man would say that he would decide for himself 
 what flour his stomach should digest. 
 
 The liquor traffic, like other trades, has al- 
 ways been more or less controlled by statute 
 law. But the principle of prohibition is a new 
 contrivance quite recently introduced. It does 
 
PROHIBITION AND REGULATION. 153 
 
 not undertake the control of a traffic, it under- 
 takes the control of the appetite of every indi- 
 vidual so far as the beverage of alcoholic liquors 
 is concerned. We have shown that the stat- 
 utes laid in this principle, so far from having 
 an " expectation " of success, have uniformly 
 failed. In application, they have never suc- 
 ceeded long enough to be called working 
 laws. 
 
 An odd conceit, we can hardly call it an argu- 
 ment, which the prohibitionists put forth, is the 
 claim that if you impose any restriction on the 
 •seller of liquor, through requirement of Hcense 
 or otherwise, you thereby take away the natural 
 right of the citizen to purchase, and thus estab- 
 lish the same principle as they attain through 
 prohibition. When the history of this legisla- 
 tion comes to be read in a disinterested time, 
 we venture to predict nothing will seem more 
 strange than this notion which is put forward 
 through one and another argument. Accord- 
 ing to this theory, the government has forbidden 
 and attempted to cut off about every action 
 7* 
 
154 PROHIBITORy LIQUOR LAW. 
 
 which enters into the daily life of the citizen. 
 Look at a few instances. 
 
 The city provides that we shall give our 
 refuse matter to licensed swill-carts. Does it 
 thereby forbid the carrying away of garbage 
 from our premises ? 
 
 It licenses a few persons to sell gunpowder. 
 Does it prevent every one from obtaining pow- 
 der when he desires it ? 
 
 It prevents the sale of adulterated milk, and 
 obliges the milk-dealer to use a standard meas- 
 ure. Do these methods prevent us from getting 
 milk when we desire it ? 
 
 It allows no one but an authorized physician 
 and pharmaceutist to prescribe and prepare 
 medicines. Does that prevent us from obtaining 
 arsenic to kill rats, although some people may 
 use the poison for suicide? 
 
 They argue, in turn, that there is no parallel 
 between regulation of milk, gunpowder, and 
 similar traffic, and the sale of liquors, which is 
 exceptional. This begs the question. The 
 state would cut off the sale of liquor as a bev- 
 
PROHIBITION AND REGULATION. 155 
 
 erage, eitlier because it is a poison always inju- 
 rious, or because from actual experience it has 
 found the prohibition useful. Now the poison 
 theorj^ of alcoholic liquors is at best in abey- 
 ance. It never was an established proof on 
 which governmental interference could be based. 
 Latterly science tends more and more in the 
 opposite direction. As Dr. Hammond says, "If 
 alcohol is not food, what is it ? We have seen 
 that it takes the place of food, and the weight 
 of the body increases under its use." ^ On the 
 other hand, we have shown that prohibition, 
 instead of being a tried success, is a failure. 
 The notion that there is no practical difference 
 between a certain amount of prohibition and 
 a certain amount of license is absurd logically 
 and in fact. Certain principles of government 
 are radically different. The mildest form of 
 confiscation differs absolutely from the worst 
 kind of taxation ever invented. So prohibition 
 cuts off, while license permits. Those who 
 
 1 Psychological and Medico-Legal Journal. July, 1874, 
 page 10. 
 
156 PROHIBITORY LIQUOR LAW. 
 
 would make the former into the latter, are like 
 the historical old woman who granted free per- 
 mission that her boy should learn to swim. 
 " Learn to swim by all means, but never go near 
 the water." 
 
 We claim that in reviewing prohibition, both 
 from our own point of view and from that of its 
 advocates, we have proven that it is not a regu- 
 lation of the liquor traffic. Regulation presup- 
 poses a use of liquors for a beverage, just as the 
 common statutes look forward to a use of medi- 
 cines or salt. The use of liquors as a beverage 
 is a common and well-known fact. Prohibition 
 proposes to interdict this use by a wholesale 
 edict. It is not like forbidding the sale of poi- 
 son to one intending suicide ; this is an excep- 
 tional stoppage of a dark crime. The use of 
 liquors as a beverage, whether they be food or 
 not, is something which the majority of the 
 community have adopted into their every-day 
 life. With that common use of alcohol there 
 goes an abuse which engenders among us a vast 
 amount of vice and crime. To attempt to stop 
 
PROHIBITION AND REGULATION. 157 
 
 the abuse and evil consequences by forbidding 
 the use, is no more practicable than it would 
 have been to cut off the use of pork by statute 
 because much pork held " trichinae," and thus 
 injured people. To prohibit the use of liquors 
 by statute law — ix.^ to forbid their sale, which 
 cuts off the legal enjoyment of them from all 
 except the rich and strong — is not possible, and 
 is wrong ; it is impossible, because it is wrong. 
 
158 PROHIBITORY LIQUOR LAW. 
 
 ANOTHER SYSTEM. 
 
 A LTHOUGH it is out of the direct line of 
 our argument, it accords with our moral 
 purpose to offer a substitute for the prohibitory 
 liquor laws. In our view, any system which 
 could be fairly executed would be better than 
 prohibition, which from its essential nature is 
 incapable of execution. The first condition of 
 any judicious system would be some substantial 
 accord among the main body of the people leg- 
 islated for. Nearly all our legislation on this 
 subject has been initiated either by a small sec- 
 tion of passionate reformers on the one hand, or 
 a section of liquor-dealers on the other. These 
 elements must ever be potent, but neither should 
 be, or need be, all-powerful. The whole com- 
 munity holds the main interest in this impor- 
 tant question, and sooner, or later this great 
 
ANOTHER SYSTEM, 159 
 
 public, central good will assert itself and control 
 the wings of abstinence and free license accord- 
 ing to its own larger and mastering judgment. 
 Great reforms always work out in this way. 
 The American nation thought for generations, 
 and honestly too, that slavery was a side issue, 
 affecting only fire-eaters or abolitionists. Sud- 
 denly it awakened to the consciousness that its 
 own life was in danger ; then it settled the ques- 
 tion, and settled it for the public good, not as 
 either party desired or would have believed 
 possible. 
 
 No principle can e'ver unite this great pub- 
 lic sentiment, and weld it into effective action, 
 which is not founded on absolute justice. As 
 the matter stands before the law, a man desir- 
 ing a gill of whiskey or of beer has a right to it. 
 The contingent fact that he may add other gills 
 to his want, and thus make himself a drunkard 
 or a pauper, is in practical life too remote for the 
 law to control by forbidding the first want. 
 No legislation looking so far into future risks 
 ever did succeed. If a great mass of citizeus 
 
160 PROHIBITORY LIQUOR LAW. 
 
 are moved by this desire, which cannot be 
 shown to transgress a law of God, then it is 
 the business of government to provide for the 
 desire. The desire for the first glass of liquor 
 is legitimate, and cannot be cut off by the risk 
 or possibility of a fourth glass. A man who 
 buys too much tenderloin steak may make him- 
 self dyspeptic, or the woman who buys a silk 
 dress may make herself a pauper ; but the law 
 cannot look to such issues. This principle of 
 individual liberty goes to the very foundations 
 of every law, social custom, or personal opinion. 
 It is too large and too important to be much 
 affected by the evils of intemperance, great as 
 those evils are, individually and socially. John 
 Stuart Mill says : — 
 
 " l^either one person nor any number of persons 
 is warranted in saying to another human creature 
 of ripe years, that he shall not do with his life for 
 his own benefit what he chooses to do with it. He 
 is the person most interested in his own well-being 
 . . . the interest which society has in him individ- 
 ually (except as to his conduct to others) is frac- 
 tional, and altogether indirect; while, with respect 
 
ANOTHER SYSTEM. 161 
 
 to his own feelings and circumstances, the most 
 ordinary man or woman has means of knowledge 
 immeasurably surpassing those that can be possessed 
 by any one else." ^ 
 
 A few theorists place the basis of rights in 
 society and not in the individual, holding that 
 personal rights are privileges which society 
 grants for its own good. The legitimate func- 
 tions of society have been coherently developed 
 to their fullest extent by Mr. Mulford, in his 
 work on " The Nation." He gives the nation 
 or society the powers and responsibilities of a 
 moral being. But he definitely puts by the 
 theory that societ}^ gives rights to the individ- 
 ual. " There is in the nation the institution, 
 not the creation of rights, since their founda- 
 tion is in the nature of man, and their affirma- 
 tion is in the nation." ^ 
 
 It is established that the individual has in 
 himself certain rights. When society trans- 
 gresses these, it passes beyond the province of 
 
 1 Mill on Liberty, p. 147. 
 
 2 Mulford's Nation, p. 106. 
 
 K 
 
162 PROHIBITORY LIQUOR LAW. 
 
 law. As Professor Amos says, in another con- 
 nection, it attempts to " deluge law with morals." 
 Among these rights is that of drinking, so long 
 as the drinker does not make himself a nuisance 
 to others. However we may hedge him about, 
 and restrain him, and prescribe the manner of 
 his drinking and purchasing, for the social good, 
 yet the original right cannot be extinguished, 
 but remains unaffected. If my neighbor has a 
 right of way across my estate, way must always 
 be made for him. He cannot drive through my 
 strawberry beds and clover fields ; I can regu- 
 late that ; but a good and sufficient way must 
 always be kept open. When society deliberately 
 cuts off the power of the citizen to purchase 
 liquors in reasonable amounts, it commits an 
 act of injustice, no matter how good the intention 
 may be. That injustice cries out until it rights 
 itself ; it moves the foundations of society until 
 the stone which the builders rejected becomes 
 the head of the corner. 
 
 Therefore we say society, as a whole, must 
 take up this matter, and base the regulation of 
 
ANOTHER SYSTEM. 163 
 
 the traffic on the principles of justice and the 
 common sense of experience. We are met at 
 once by the rejoinder from prohibitionists, that 
 license laws have always failed in practice to 
 satisfy the community. Suppose they have 
 failed, that does not make prohibition just. 
 Latterly, the license laws, and especially in the 
 New England States, have been mere make- 
 shifts, the lax reactions which always follow 
 overstrained laws ; they have been the immoral 
 result of over-moralization. The liquor dealers 
 have controlled them, and they have been ad- 
 ministered in no thorough spirit of regulation. 
 The reason the liquor dealers have such strength 
 is because prohibitory attempts put such a force 
 of customers behind them. Take away this 
 unnatural pressure, give reasonable play to the 
 appetite of the individual, and then get his in- 
 fluence in restraining the traffic for the good 
 of society. The power of liquor dealers will 
 then shrink to its natural proportions like that 
 of other traders. 
 
 We can offer a system of regulated traffic 
 
164 PROHIBITORY LIQUOR LAW. 
 
 which is based on justice, respects the individual, 
 and is worked in every detail for the benefit of 
 the Avhole community, so far as this appetite 
 can be controlled by any mechanism. It has 
 the further advantage of success after more than 
 eight years of trial. 
 
 Sweden has always used liquors freely, and 
 abused them as well. The people are northern 
 in race as we are, and their climate has always 
 favored a large consumption of spirits. One 
 town, after trying free license, then partial 
 licenses unsuccessfully, hit on the plan of con- 
 centrating all the licenses into one associa- 
 tion which should represent the public. The 
 gradual growth of this system is detailed in 
 " Macmillan's Magazine " for February, 1872, 
 and October, 1873. We cite : — 
 
 " In ^ Gothenburg (the second town of Sweden, 
 a seaport with a manufacturing and trading popula- 
 tion of 58,000 in 1872), all the public-house licenses 
 are held by a single ' retailing company,' incorporated 
 by royal charter. Each license representing, as with 
 us, the right to open one public-house, the directors 
 1 " Macmillan," vol. 28, p. 522. 
 
ANOTHER SYSTEM. 165 
 
 use in different parts of the town just so many of 
 their licenses as they deem required by the popula- 
 tion. In the first place, they take care that all 
 houses in which liquor is sold are light, well venti- 
 lated, and roomy. Into each they put a manager, 
 on the terms that he is to take all his supplies of 
 spirits from the company, and to pay over to them 
 every farthing received for spirits sold, his remuner- 
 ation consisting of the profits on his sales of tea and 
 coffee, malt liquors,^ cigars, and eatables, supple- 
 mented, in most cases, by a fixed salary. Once a 
 year the company's balance-sheet is^submitted to 
 and audited' by the municipal authorities, and there- 
 upon the entire amount of the net profits for the 
 past twelve months is paid into the municipal treas- 
 ury, and becomes part of the general revenue of the 
 town. All this is an embodiment and earnest striv- 
 ing after the realization of sundry definite conclu- 
 sions about the drink traffic at which the Gothen- 
 burgers arrived eight years ago. They embodied the 
 results of their experience in the following four prin- 
 ciples : 2 I. Spirits to be retailed without any profit 
 whatever to the retailer, who can thus have no 
 temptation to stimulate their consumption. II. The 
 
 1 In " Sweden, a country of spirit drinkers, the trade in malt 
 liquors has only quite recently been deemed important enough 
 to require legislative regulation and restriction." 
 
 2 " Macmillan," February, 1872, p. 311. 
 
166 PROHIBITORY LIQUOR LAW. 
 
 sale of spirits on credit, or on the security of pledges, 
 to be stringently prohibited. III. All houses in 
 which the liquor trade is carried on to be well 
 lighted, roomy, airy, and clean. IV. Good victuals 
 at moderate prices, to be always procurable in drink- 
 ing-houses by anybody demanding them. It was not 
 in the nature of things that any private individual, 
 trader or non-trader, should be found ready to carry 
 out such a programme as this. It was tolerably ob- 
 vious that if the scheme was to be put through at all, 
 a number of the leading members of the community 
 must loosen their purse-strings and put their shoul- 
 ders to the wheel together. And this, thanks to the 
 public spirit that has for years prevailed at Gothen- 
 burg, was done promptly and effectually. Upon the 
 requisition of an influential list of the townsmen, 
 headed by several of the leading mercantile firms, 
 the government granted a charter of incorporation 
 to a company formed with the express object of 
 working out a thorough reform of the local liquor 
 trade, in accordance with the above principles. By 
 the terms of this charter the maximum nominal 
 capital of the company is fixed at 200,000 rix- 
 dollars, or rather more than £11,000. Each share- 
 bolder is declared strictly liable up to the amount 
 of his guarantee (^^e., stock.) It has not, however, 
 been found necessary, so far, to call upon the share- 
 holders for any part of their subscriptions. Spirits 
 
ANOTHER SYSTEM, 167 
 
 may not be served to a person apparently intoxi- 
 cated ('overloaded' is the expressive term in the 
 act), nor to a minor ; and the act, in its tender 
 solicitude for the helpless tippler, provides that a 
 person ' overloaded ' is not to be tm-ned out of the 
 house. The Gothenburgers made up their minds 
 that, though they could not stamp out the spirit 
 trade, they could and must regulate it; and that 
 their way of doing so" should be to limit the num- 
 ber of spirit shops, to insure the purity of the 
 spirits offered for sale, and, the most important 
 point of all, to make it nobody's interest to 
 stimulate the consumption, and by keeping these 
 principles steadily in view, the Gothenburg com- 
 pany have been, and it may be hoped will continue 
 to be, the means of diminishing substantially and 
 permanently the sum-total of drunkenness and crime 
 among their fellow-townsmen." 
 
 We do not like statistics in these mat- 
 ters, but the curious can trace out these 
 figures : ^ — 
 
 " The percentages by police records of cases of 
 drunkenness amongst the population have been : 
 In 1864, 6.10 ; in 1865 (the company established at 
 
 1 The " Fortnightly Eeview " says : " In Gothenburg the 
 number of cases of delirium tremens has been diminished by 
 one-third." 
 
168 PROHIBITORY LIQUOR LA W. 
 
 the beginning of October), 5.67; in 1866, 3.75; in 
 1867, 3.58; in 1868, 3.50; in 1869, 2.56; in 1870, 
 
 2.52; in 1871, 2.67; in 1872, 2.72." ^ 
 
 With the rise of wages came an increase 
 of drunkenness, but there was a deeper cause 
 of trouble : — 
 
 "Xot the pubhc-houses, but the 'retail' shops 
 are the offenders, — places where the holders of what 
 we term grocer-licenses sell spirits in quantities of a 
 \12Mi-han (about a quart) and upwards, for consump- 
 tion off the premises. This branch of the trade the 
 company has never hitherto been able to control. 
 There have been stumbling-blocks in the way of 
 their supplanting the private grocer-business; and 
 there still exists in the town no less than five and 
 thirty private shops of this class, constant thorns in 
 the company's side, conducted, as they naturally 
 are, with a view above all things to profit; and so 
 sedulously counteracting the endeavors of the com- 
 pany to discourage the consumption of alcohol. The 
 directors of the company know that cheap drink 
 spells drunkenness, and that high prices, in this as 
 in other trades, check consumption. So where they 
 are absolute masters of the situation, in the public 
 houses, they deliberately put a high price on the 
 spirits served ; their tariff-j)rice for a glass of trdn- 
 1 Fortnightly Review, vol. 28, p. 522, et seq. 
 
ANOTHER SYSTEM. 169 
 
 vin (corn-whiskey, the staple alcoholic drink of the 
 country, and particularly of the lower classes) being 
 6 6>6, which is at the rate of 3 rix-dollars per 
 han^ (equivalent to 5s. 10c?. per gallon); whereas 
 they have to pay the distiller only 2s. 5 J. per gallon. 
 Now the 'retailers' or licensees may not sell less 
 than a \i.2Xi-kan = about 25 ordinary dram-glasses, 
 at a time. ... So he gets a few kindred souls to 
 practice 'saining' with him, that is, to club their 
 small coins to make up the price of a \12\i-kan at 
 the spirit-grocers, carrying the liquor to the nearest 
 convenient corner (for consumption on the premises 
 would be directly illegal), and there drinking it." 
 
 They could not-reduce the amount of drunk- 
 enness further while this evil was at work : — 
 
 "We have done our best (says the company's 
 report), but all our efforts are crippled while ' sai- 
 ning' continues, and 'saining' will continue so 
 long as the grocer-licenses remain in private hands, 
 and are worked with a view to private profit. We 
 are convinced there is one remedy, and only one, 
 for the present evil, and that is for the municipality 
 to undertake the sole and entire management of 
 the local retail spirit trade, on the same terms as 
 we already work the public houses. . . . Last Feb- 
 ruary a remarkable series of meetings was held 
 A "A kan is rather less than three-fifths of a gallon." 
 8 
 
170 PROHIBITORY LIQUOR LAW. 
 
 in Gothenburg. The Workingmen's Union sponta- 
 neously took this matter into consideration . . . 
 adopted two clear suggestive resolutions, which 
 were forwarded to the representatives of Gothen- 
 burg in the Diet, recommending (1) that the com- 
 pany should be entrusted wdth all spirit-licenses, 
 grocer as well as public-house; and (2) an increased 
 excise duty on spirits, with the sure concomitant of 
 higher retail prices. The new law will come into 
 operation October, 1874." ^ 
 
 In another year we shall learn how this new 
 feature works in practice : — 
 
 "What the company will do with their mon- 
 opoly, may be pretty well predicted from their 
 j)ast conduct. They will keep open only so many 
 * grocer' spirit shops as maybe competent to sup- 
 ply the natural unstimulated demand of the j)opu- 
 lation. They will deliberately handicap these shops 
 by so raising their prices, that for the quart of 25 
 drams of branvin there will be charged something 
 like the price of 25 separate drams at the public- 
 house, thus removing the fundamental reason and 
 attraction of the ' saining ' trick." 
 
 1 " Since above was written the auction has taken place. 
 After a keen competition twenty-Jive licenses were disposed 
 of, for (in the aggregate) £2,000 more than thirty-Jive fetched 
 last year, — a fact which shows the large profits realized 
 lately by the private licenses. (August 14)." 
 
ANOTHER SYSTEM. 171 
 
 Scotland, naturally first influenced by Swe- 
 den, and a country whicli struggles hard with 
 drunkenness, is moving rapidly toward this 
 system. " The General Assemblies (in May) 
 of the three principal church bodies of Scot- 
 land, the Presbyterian Synod, the Established, 
 and the Free Church, have dwelt upon it with 
 marked emphasis and approval." The " Lon- 
 don Spectator," ^ in commenting on the sys- 
 tem, says: — 
 
 "The merits of this system are conspicuous. 
 They will be generally recognized, and the recog- 
 nition cannot fail largely to affect the final judg- 
 ment of the public as to its feasibility. Of course 
 its grand recommendation is that it utterly disowns 
 the prohibitive crotchet of your fi\natical 'Per- 
 missionists.' It refuses to treat the question as if 
 it were capable of being solved in the simple and 
 direct manner that might apply to the choice of 
 Hercules. It takes another ground from that of 
 regarding it as a question between virtue and vice, 
 virtue being typified in the austere respectability 
 of the permissive prohibitionist, and vice in the 
 portly form of the publican. So far we deem it 
 rational and well-considered." 
 
 I " Spectator," October 18, 1873. 
 
172 PROHIBITORY LIQUOR LAW. 
 
 A few figures will show what the paj^ments 
 to the town revenue from this source have 
 been. " In 18G5, the company held thirty-nine 
 licenses and paid in 50,782 rix dollars. Grad- 
 ually increasing in 1871, the company held 
 all = 61 licenses, and paid in 191,759 rix dol- 
 lars," or, in round numbers, 97,000 United 
 States gold dollars. 
 
 The direct gains in money to the commu- 
 nity through this system are great; the indi- 
 rect are still greater, and cannot be measured. 
 To begin with some of the more remote, the 
 testimony of Gothenburgers shows an immense 
 gain in the lessening of the traffic, and thereby 
 a lessening of money expended for the indul- 
 gence, and consequently a lessening of poverty 
 and crime. The taking away of the profits 
 from the common liquor-dealers is a collateral 
 advantage hardly to be estimated, for these 
 profits are too often badly used. The gain to 
 the revenue is large, and is something which 
 every tax-payer can see with the keen vision 
 which affects the pocket more than the optical 
 
ANOTHER SYSTEM. 173 
 
 nerve. Any man or woman who sees a hundred 
 thousand dollars or a proportional sum going 
 into the treasury of his town, will be a good 
 special constable, though he may not hold a 
 partisan appointment from the state, to help 
 enforce the law against illicit traffic in liquors. 
 The opposition of the lower end of the liquor 
 trade would be strong, but it would lose that 
 tremendous representative weight which its 
 backing of customers now gives it in every 
 political agitiition. Decent men, and not the 
 indecent, make the strength of the liquor deal- 
 er's custom, and they would rally to the sup- 
 port of this system, for each one would see that 
 his . own material as well as moral interest was 
 furthered by paying the profits of his own 
 diinking into the town coffers instead of the till 
 of the common dealer. The importance of this 
 detail will not so much weigh with some good 
 women, or those earnest, impatient men who can 
 see no good in enlisting the common, selfish 
 motives of mankind in the service of the right. 
 Men skilled in legislation and administration, 
 
174 PROHIBITORY LIQUOR LAW. 
 
 however, know at once that no law works so 
 easily or so well as that which secures the co- 
 operation of a great mass of citizens through 
 the details of its own operation. 
 
 All these issues of the system are subordi- 
 nate to the main question ; is it true, is it 
 right ? The extreme prohibitionist will an- 
 swer, with a shriek, that no sale of liquor for 
 a beverage can be right. We have argued to 
 little purpose, if we have not proved that this 
 opinion is not held by any large number of 
 persons, and, from the nature of the case, can^ 
 not be sustained by any large number so long 
 as men are as they are. The conscientious 
 abstinent would be released from his unsatis- 
 factory tugging at an impossible law, and 
 enabled to turn his efforts toward a change 
 in the inclinations of the drinker. We should 
 have incorporated in this system all that the 
 law can accomplish. First, a privilege is se- 
 cured to every individual of supplying any want 
 of his appetite Avhich under the law is legiti- 
 mate ; secondly, all the fruits of this privilege 
 
ANOTHER SYSTEM. 175 
 
 are husbanded for the use and benefit of 
 society. Society incurs a certain risk when- 
 ever an individual drinks, — a risk which is 
 beyond that of the individual. As some com- 
 pensation for this risk, it receives all the 
 commercial profit, and retains control of the 
 operation under the wisest rules it can en- 
 join. Turn the question whichever way we 
 may, sthis is the uttermost the state can ac- 
 complish ; no ideal government could get more 
 out of the law than these two principles 
 yield. The absolute interdiction of the nat- 
 ural appetite is beyond the power of any 
 government, and must be reached by other 
 means than statute law. The individual on 
 his own ground is mighty against the pressure 
 of the state, or of society in mass ; but he is 
 weak and helpless against the moral assaults 
 of other individuals. No one can withhold 
 his ear from the appeal of an earnest moralist. 
 There is the ground where the abstinent can 
 reach the appetite of the individual, and there 
 only. 
 
176 PROHIBITORY LIQUOR LAW. 
 
 This system would require some change, 
 but not much, to adapt it to our American 
 life. First, we must have a strong public 
 sentiment in its favor; then the wise men, the 
 strong men of affairs, the administrative men in 
 any community, must take hold, and carry the 
 principle into successful operation. Whether 
 it could succeed in cities like New York and 
 London would be matter of experiment ; but 
 there is every reason for its success in cities 
 of moderate size or towns. We would open 
 one restaurant with such a license for every 
 one thousand inhabitants in a town, and grant 
 a grocer's or package license for every three 
 thousand or four thousand people. This would 
 give about one place for sale or drinking in 
 large towns and villages where there are 
 now five to ten. In sparse districts the 
 diminution would be less. If the practice of 
 " saining " or clubbing drinks should obtain, 
 then we would follow the Swedish example, 
 and concentrate all the licenses in the one 
 company of each town. Probably this prac- 
 
ANOTHER SYSTEM. 177 
 
 tice would not be relatively so potent in 
 America, yet it might interfere with the best 
 working of the system. Still it would be bet- 
 ter to come to the result gradually, through 
 the convictions of the people, and not to start 
 with all the pressure of a close monopoly. 
 We should Hkewise be careful, over-careful 
 even, in limiting the consumption by exorbitant 
 prices. The American people, though wonder- 
 fully patient, as these absurd prohibitory stat- 
 utes well show, yet do not like to be governed 
 too much. The higher prices should be made 
 the greater the inducements to illicit traffic ; 
 and, in our view, illicit traffic aggravates the 
 evils of drinking enormously. We would have 
 no secret places for drinking. If it is a good 
 thing for a young man " to take a drink," 
 then it is good to take it openly. If he 
 needs it, he should not be ashamed of the 
 fact, and the whole public sentiment would 
 soon come to an expression of these principles. 
 The sort of haK-sympathy which now goes 
 with the dodging of an impossible law would 
 8* L 
 
178 PROHIBITORY LIQUOR LAW, 
 
 be taken away from a fellow who skulked in 
 holes, when every reasonable want should be 
 gratified. This would not absolutely keep 
 young men from error, but, in another method, 
 though by the same principle as we indicated 
 in the legal method, it would do for them all 
 that a wholesome public opinion could do. 
 
 Public sentiment can assist the individual, 
 and draw him by a wise sympathy toward 
 a better development of himself. It cannot 
 make him, nor refashion him by statute law 
 or wholesale clamor into a being differing 
 from his own nature. 
 
IMMORAL LAW-MAKING, 179 
 
 IMMORAL LAW-MAKING. 
 
 "/^ENTLEMEN," said Edmund Burke, 
 '' bad laws are the worst sort of tyranny. 
 In such a country as this they are of all bad 
 things the worst. Worse by far than anywhere 
 else ; and they derive a particular malignity 
 even from the wisdom and soundness of the rest 
 of our institutions." ^ 
 
 Human law is a mighty force ; it faintly re- 
 flects the ordering power of Omnipotence itself. 
 On the infinite side it is little and full of error ; 
 on the finite side, in our actual life, it is majestic, 
 and is the grandest reality we know. It is so 
 great a blessing that generally we are not con- 
 scious of it, as we breathe and see unconsciously, 
 though light and air are the greatest of natural 
 facts. The parts of law and lawful order which 
 we do see are the least parts, and those which 
 
 1 Rivington's Ed., III. 426. 
 
180 PROHIBITORY LIQUOR LAW, 
 
 give to the vulgar mind its notions of the prov- 
 ince and character of legal administration. 
 y^nPunishing criminals and adjusting the selfish 
 conflict of rights is not the main province of 
 law, though here it commonly manifests itself, 
 and many do not look beyond these superficial 
 results. The true action of law, that which 
 makes or unmakes society, just as breathing 
 affects the body for good or ill, lies deeper 
 down, and embodies our living; — embodies it 
 on the human and earthward side, as religion or 
 the spirit of God with us embodies it on the" 
 heavenward side. After all, what does the 
 illuminated righteousness of a man do for his 
 neighbors, unless he embodies it in " positive 
 morality," as Mr. Austin terms it, or the moral 
 order of the law, — something which enters into 
 the actual living of the citizen, which is tangi- 
 ble, and goes to the making of a state, just as 
 plank and timber go into the hull of a ship ? 
 
 The common idea of innocence and natural 
 simplicity is pictured in the free life of the 
 farmer at the plough, tilling his field in joyous 
 
IMMORAL LAW-MAKING. 181 
 
 hope, and free from the cares which social re- 
 straint and artificial laws have netted around 
 less favored creatures. When did this natural 
 farmer ever exist since the gates of Paradise 
 closed on an idle recipient of God's bounty, and 
 opened the world to a laboring partner of the 
 Creator himself? What savage ever tilled his 
 field without the harsh control of his chief, or a 
 bitter struggle with his enemy ? Wretched as 
 the interior of Africa is, yet Schweinfurth found 
 order and government, despotic but effective. 
 " One of the most influential personages of 
 the neighboring race of the Lao was a woman 
 already advanced in years, of the name of Shol. 
 She played an important part as a sort of chief 
 in the Meshera, her riches, according to the old 
 patriarchal fashion, consisting of cattle." The 
 New England Puritan, with gun and axe on 
 either side of his plough, subduing the wild 
 wood while he watched for the wilder savage, 
 symbolizes the whole struggle which civilized 
 man has carried on with nature and the natural 
 man. 
 
182 PROHIBITORY LIQUOR LAW. 
 
 Instituted law has come out of this long strug- 
 gle ; not the mere policeman's club, though his 
 badge carries the whole history upon it, but the 
 pure spirit of order diffused through society, 
 moving according to law, and not under the 
 restraints of the law. It is not religion nor 
 family life themselves, but it is to them as the 
 bones are to the body, or the body is to the 
 soul. 
 
 It is an error, more or less common, that lib- 
 erty lies outside instituted law or social order. 
 That individual freedom is a something which 
 man has kept back, while surrendering little by 
 little of his natural rights in the developing 
 contests, we have indicated above. In fact, 
 there never was any such freedom or liberty 
 since Adam began to board himself, instead of 
 being fed as a brute is fed. He then had to 
 consult Eve, and she was obliged to consult him, 
 or they would have had a sorry dinner. Thus 
 the family developed, and the state came after- 
 ward. An individual is little more than a 
 mathematical point or line without breadth or 
 
IMMORAL LAW-MAKING. 183 
 
 thickness. In combination with others he finds 
 his own powers, and builds the man, as we un- 
 derstand him, out of his intercourse with other 
 men. Tlie liberty a savage values was not the 
 right to catch a fish or dig a yam, but the power 
 to keep them, and to find his wife and children 
 in his hut after he returned from a search after 
 other rights ; and he at once surrendered what- 
 ever he had to his chief, that he might have the 
 liberty which comes through order, and cannot 
 exist individually or unlimited by other liber- 
 ties. It is through society and through law 
 that we enjoy those individual rights which are 
 so finely adjusted we cannot see the restraints, 
 and call them natural, just as we call a beef- 
 steak natural, though it is the result of long 
 ages of fostering care applied by man to nature. 
 This principle was laid down by Aristotle, and 
 has been well developed by many great writ- 
 ers : — 
 
 "There is, indeed, no doubt that a wandering 
 savage, who has occupied a plot of ground, pos- 
 sesses the power of using his limbs, and cultivating 
 
184 PROHIBITORY LIQUOR LAW, 
 
 his land ; but to suppose that these liberties are, 
 under a settled government, only spared by the leg- 
 islature, and not created and secured by it, betrays 
 a complete misapprehension of legal rights, and the 
 acts of a sovereign body. Under an established 
 government, no absence of law can be beneficial ; 
 because every act which may be done by man must 
 be either permitted or prohibited by the legislature. 
 What the law does not forbid it sanctions; and 
 "will protect those who do it from obstruction." ^ , 
 
 We have purposely taken the broadest pos- 
 sible theory of social rights, that we might show 
 Burke's meaning when he says that a bad law 
 in a good government is the worst tyranny. It 
 is because law has so wound itself in with every 
 strand of civilization, that any wrong produced 
 by it becomes doubly severe. Some things 
 •could be done under rude civilizations by law, 
 i.e.^ by statute, which cannot be done success- 
 fully now. Under a theocratic rule it was 
 easy to prevent people from eating pork ; and 
 that seemed to be a wise use of the governing 
 force to the best legislators of that time. What 
 
 1 George Cornewall Lewis, Use and Abuse of Political 
 Terms, p. 200. 
 
IMMORAL LAW-MAKING. 185 
 
 civilized man would think of prohibiting pork 
 to-day? Yet government is stronger to-day 
 than it was under a theocracy. It has grown 
 stronger by relegating certain matters to the 
 individual, living, as we have described aboA^e, 
 in an atmosphere of law, so that he needs no 
 statutes in those affairs. His food and drink, 
 clothing and expenditure, are now left to him 
 who is a law unto himself; yet all these mat- 
 ters were once an anxious concern to the legis- 
 lator. Suppose our abstinence friends, or any 
 other party, should enact a statute that no per- 
 son should eat over eleven ounces of meat per 
 diem. In itself, it would probably be a good 
 regulation. It would do some harm, but would 
 injure fewer people than it would benefit in this 
 American world, if it were carried out by every 
 individual. Such a statute would at once show 
 the limits which civilization has imposed upon 
 itself, for it could not be carried into effect. 
 Voracious eaters would be hurt by the tyranny, 
 and lesser ones, by dreading it, would feel the 
 same sense of oppression. A father of a family 
 
186 PROHIBITORY LIQUOR LAW. 
 
 would not undertake this method of controllinsr 
 eating ; and no state has ever possessed power 
 equal to the paternal for controlling individual 
 action, v^here the acts are numerous and fre- 
 quent. Such matters in a higher civilization 
 have passed out of statute law into that higher 
 moral region which is a consequence and con- 
 comitant of law, but is the proper home of the 
 individual. 
 
 Theocratic legislators overlook this principle, 
 or are ignorant of it. We sa}^ Burke would 
 say, a law ill-advised and badly executed is 
 worse than the crime or injuries it would re- 
 strain. They say, " No. God's laws stand in 
 statute, though they are constantly broken ; it 
 is our duty to maintain the liquor statute, bro- 
 ken or not." 1 
 
 The difference is readily comprehended by any 
 one not blinded by his prejudices. Human laws 
 are penal, and the offender escapes the penalty 
 if the statute is badly adjusted. God's laws 
 are vital, and carry their penalty not in a punish- 
 
 1 Those arguments are actually used in Rhode Island. 
 
 I 
 
IMMORAL LAW-MAKING. 18T 
 
 ment, but in a consequence, wliicli no human 
 being ever escaped in this world, whatever the 
 world to come may yield. For these and other 
 obvious reasons wise legislators have abandoned 
 more and more of the theocratic grounds of law 
 and based their legislation on right reason and 
 experience. The present agitation to legislate 
 God into the Constitution of the United States 
 is an example. Common sense at once met this 
 effort with the fact : He is there through the 
 great fundamental ideas which are in our peo- 
 ple ; if not there by means of these, you cannot 
 put Him there by statute law. 
 
 In running counter to these great truths, — 
 bloody axioms the world has fought out, sweet 
 axioms it has unfolded in the ways of peace, — 
 our fanatical friends do a wrong they know not 
 of. We have shown these liquor statutes to be 
 badly grounded in law, — a tyranny possible 
 only through the irresponsibility of the voting 
 majority ; to be badly executed, actually defied, 
 and maintained because they are so easily defied 
 or evaded. Dr. Miner says : "If the Angel 
 
188 PROHIBITORY LIQUOR LAW. 
 
 Gabriel should come down to earth and sell" 
 liquors as beverages, he would not lift the busi- 
 ness up to heaven, but the business would drag 
 the angel down to hell." ^ The reason of this 
 is plain, and is found in the principle Burke 
 states. Tlie better the social system, the worse 
 will be the effect of a bad law. A home may 
 be briefly turned into a hell by a few bad princi- 
 ples. 
 
 It is no figure of speech that when j^ou make 
 an impossible law and maintain it by fraud and 
 tyranny, you make a hell on earth, and change 
 an angel into a demon. We say fraud dehber- 
 ately, for up to this point we have treated the 
 prohibitionists as a whole, and with the respect 
 their main motive entitles them to. But bad 
 laws do not stop with the main motive ; they 
 drag other influences in their train. One of 
 the worst consequences of this legislation is the 
 wretched puling hypocrisy which it directly 
 creates and encourages. In our first chapter 
 we described the process by which politicians 
 
 1 Miner's Argument, p. 110. 
 
IMMORAL LAW-MAKING. 189 
 
 are evolved out of the abstinence pressure when 
 it is passing from the moral into the political 
 sphere. We only dwelt on the necessary results 
 of such laws in that view. There is another 
 view which people who uphold these statutes 
 must see sooner or later. There is a strong 
 appetite for liquors diffused in society, not the 
 drunkard's appetite, but that more potent, be- 
 cause unseen, power which compels many re- 
 spectable men to use liquors. Whether it be 
 wise or unwise, good or bad, that appetite 
 remains, and Avill not be abolished by a statute 
 law. It prevails more among the classes wliich 
 rule society and manage politics. Eelatively 
 .we mean, and not in disparagement of those 
 classes. Men of strong natures, natural leaders 
 in small communities, abounding in animal 
 spirits, are more likely to drink than the aver- 
 age citizen, the average conference leader, or 
 Sunday-school teacher. These men govern so- 
 ciety so far as administration goes ; they always 
 will govern it in some way or other, — whether 
 temperance, know-nothingism, or anti-slavery 
 
190 PROHIBITORY LIQUOR LAW. 
 
 prevails. These men, whether they be the 
 Joneses we have described, or the men who 
 make the legislators, the ward-meeting or cross- 
 road Warwicks, are driven into a hypocritical 
 obeisance to liquor legislation, which is false ; 
 they are absolutely forced into a legal compli- 
 ance and a public phylactery broadening, even 
 if they do not conceal their personal habits, 
 as they sometimes do. Add to this element of 
 enforced pharisaism the nasty, foul, hybrid 
 creatures who feign a virtue when they have 
 it not, and drink secretly while in public they 
 maintain temperance, prohibition, total absti- 
 nence, and the semblance of any virtue their 
 snivelling natures can contain, and we have a 
 nice combination, not to say mixture, for the 
 administration of law or " positive morality." 
 Now, what sort of society is it into which 
 these influences reach ? There are a few re- 
 spectable and honorable dealers left in the 
 business of retailing spirits. The number of 
 such is small and daily growing less, while the 
 sum of sellers grows larger. The majority of 
 
IMMORAL LAW-MAKING. 191 
 
 these dealers are foreign-born, and bred np in 
 the manner Dr. Miner describes, under the in- 
 fluences the proliibitionists have created. Their 
 field of operations is among aliens and Ameri- 
 cans alike. The political education of many of 
 our citizens to-day, youthful Americans " and 
 the adult immigrants, is being carried forward 
 in a society which knows no law but force, 
 no wisdom but cunning. A man cannot buy 
 under the law to-day in the city of Provi- 
 dence a spoonful of liquor to drink, nor a jug of 
 cooking wine. Yet it is notorious that men do buy 
 about what they please, if they desire to drink, 
 and are not of the very small class who regard a 
 prohibitory law as binding. Government, law, 
 social order itself, touch these heedless youth, 
 and these old children coming from abroad, 
 with no sufficient knowledge of the sublime 
 spirit of law described above ; at this point 
 where their passions and appetites crop out in 
 their daily living. The political education of 
 these foreigners, and of such Americans as fall 
 under the same influences, is largely affected by 
 
192 PROHIBITORY LIQUOR LAW. 
 
 the same causes. To them there is no har- 
 monious system of laws working toward better 
 morals in the community, but a struggle of force 
 with natural appetite. Their ears are closed to 
 reason, their consciences dulled to moral per- 
 suasion, because they only see force — tyrannical 
 force — bearing down a traffic which to them 
 seems legitimate, — which is legitimate on one 
 side of the law. As shown previously, the 
 state makes the liquors property, people all 
 around are actually drinking them, yet the 
 officers of the law are at work in spasmodic 
 efforts trying to destroy property which is con- 
 demned by the moral sentiment of a* party in 
 the state, while it has not lost its character and 
 its rights under the common law of the land. 
 
 What notions of property of social order and 
 of right must a man receive, who for years is 
 j)assing through such experience. If society 
 steadily adhered to the prohibition principle, 
 and faithfully worked it out, the result would 
 be bad enough. For the reasons given in an 
 early chapter, they have not been steady nor 
 
 1 
 
IMMORAL LAW-MAKING. 193 
 
 faithful, and never will be. Like causes pro- 
 duce like effects. Until the habits of the people 
 change, these laws must always be log-rolled"" 
 through other political interests. They will 
 be, as they have generally been, adroit political 
 speculations, partially executed in spasms, then 
 neglected when the temporary enthusiasm has 
 cooled. 
 
 One of the latest English writers thus dis- 
 courses on the crimes legislation creates within 
 the state. If he had written with the experi- 
 ence of our liquor legislation before him, he 
 could hardly have characterized it more ex- 
 actly : -^ 
 
 " The creation of artificial crimes, and the conse- 
 quent reckless onslaught on public liberty, form the 
 most perilous temptations to which a modern states- 
 man is exposed. The ignorance and the unhappy 
 perverseness of the bulk of the population is still so 
 considerable in modern states, that they present no 
 barrier ao-ainst the most enticinof and hazardous 
 political experiments, while they offer the most 
 ready though treacherous arguments for the stern 
 necessity of having recourse to those experiments. 
 9 M 
 
194 PROHIBITORY LIQUOR LAW. 
 
 The inevitable result is general paralysis of moral 
 responsibility ; executive tyranny in obscure places, 
 and practised especially on classes of persons unable 
 to attract public attention for their defence ; a servile 
 habit of reliance on government for the instant 
 remedy of every evil, — including those which are 
 the direct consequences of voluntary vice or self- 
 indulgence ; and the existence of a wide-spread net- 
 work of police inspection and espionage^ sapping the 
 essential vital force of a free, self-reliant, and self- 
 respecting national life." ^ 
 
 This corruption of legislation, this administer- 
 ing of moral purposes in such manner that they 
 develop immoral results, is a modern innovation. 
 It is one of the final issues of party politics. 
 
 Hear what De Tocqueville said about 1832 : — 
 
 " Hitherto no one in the United States has dared 
 to advance the maxim that every thing is permissi- 
 ble for the interests of society, — an impious adage, 
 which seems to have been invented in an age of 
 freedom to shelter all future tyrants. Thus, while 
 the law permits the Americans to do what they 
 please, religion prevents them from conceiving, and 
 forbids them to commit what is rash or unjust." 
 
 1 Sheldon Amos, Systematic View of Jurisprudence, p. 514,, 
 
IMMORAL LAW-MAKING. 195 
 
 We have changed all that bravely. Now we 
 have whole religioas organizations pressing for- 
 ward tyrannical laws, and devout apostles of 
 finance, with politico-ecclesiastical machinery, 
 forcing lobby-granted railway bonds on credu- 
 lous people. 
 
 We do not mean to mix inconsequent topics, 
 but we must consider whither we drift, and that 
 all these symptoms show diseases ; not neces- 
 sarily one disease, but the different disorders 
 are more or less related. Remember that the 
 solvency of law is in the moral strength of the 
 community, and at this moment we cannot afford 
 to waste an atom of moral force in the mainte- 
 nance of bad laws. The harm these worthy 
 persons have done the State by pushing their 
 good intentions beyond their legitimate sphere, 
 is something which has not yet borne all its 
 fruits, and which must be grappled with before 
 it is too late. A great philosopher said men 
 should possess a certain -'indifferency " before 
 they could pursue ethical truth with any ad- 
 vantage to themselves or their fellows. As we 
 
196 PROHIBITORY LIQUOR LAW, 
 
 understand moral science, a man, be he clergy- 
 man, lawj^er, merchant, or day-laborer, will make 
 a poor decision in a matter pertaining to public 
 morals, unless his mind be open and free to re- 
 ceive all possible knowledge from without his 
 own special province. Few of us can grasp the 
 details of law, social science, or theology ; but 
 any intelligent person can acquire the general 
 and leading principles which prevail in the 
 knowledge of his time. Pie is then, if candid 
 and earnest, in fit condition to hear and decide 
 an ethical question, which, as between man and 
 man, is the sum of knowledge or the province of 
 wisdom. Any one of us should pursue his own 
 personal interests, his likes and dislikes, his am- 
 bitions and pleasures, with the ardent force of 
 an honest advocate. This gives life and energy 
 to society as a whole, everybody is alive, as we 
 say. When these interests pass beyond himself 
 and affect others directly, as when he votes, 
 serves on a jury, administers an estate, acts 
 on a committee, although he is the same man, 
 other relations affect his moral state. The 
 
IMMORAL LAW-MAKING, 197 
 
 legitimate passion of self sobers into tlie ethical 
 opinion whicli reaches beyond himself and puts 
 him into the attitude of a quick-eared but steady- 
 minded judge, to carry out the figure with which 
 we began. 
 
 Instead of that, a certain class of persons, 
 frequent in every community, as Locke says, 
 "begin with espousing the ivell-endowed opin- 
 ions in fashion ; and then seek arguments to 
 show their beauty, or to varnish and disguise 
 their deformity." 
 
 This is the precise attitude which the temper- 
 ance party has held toward other moral ques- 
 tions for some thirty years. The writer has 
 conversed with many sincere total abstinence 
 men, who sadly admitted they had no hope in 
 liquor laws, yet confessed that, whenever they 
 differed with their associates, they were classed 
 at once with free rum and the Sons of Belial. 
 An end must come to this social despotism. 
 Our quarrel with the prohibitionists goes far 
 beyond the superficial statutes they enact. We 
 arraign them at the bar of justice for the deceit 
 
198 PROHIBITORY LIQUOR LAW. 
 
 and truckling cowardice they bring into social 
 living, the disorder and confusion they drag 
 into the ethics of law. We do not mean to 
 overwhelm the reader with citations from Dr. 
 Miner's argument; but he is a representative 
 man, and the position and influence of ordinary 
 and worthy prohibitionists can only be under- 
 stood when their principles are v/orked out in 
 full statement. 
 
 "How shall we explain the fact that so many 
 godly men, conscientious men, are in this error? 
 . . , I solemnly aver before you that, if any man — 
 any young man especially — steps into a Boston 
 pulpit and is silent for six months on this question 
 of the character of the liquor traffic, he will find 
 himself surrounded by a class of wealthy men, who 
 will invite him to their homes, seduce him by the 
 wine-cup, and lay him under obligation in a thou- 
 sand ways. Whenever he finds himself degraded to 
 this humiliating condition, though he may remain in 
 the pulpit, he has ceased to be a minister of God." ^ 
 
 Who are these men, clergymen and others, 
 
 he puts into the same category? The Eev. 
 
 Doctors Adams, Leonard Bacon, Blagden, 
 
 1 Miner's Argument, j), 76. 
 
IMMORAL LAW-MAKING. 199 
 
 Hedge, Neale, Bishop Eastburn ; Governors 
 Andrew, Clifford, and Washburn ; Agassiz : 
 Doctors Bowditch, Charles T. Jackson, Holmes, 
 H. J. Bigelow, Clarke ; citizens Norcross, Lin- 
 coln, Duncan, and a hundred others. These men 
 are among the topmost in their several vocations, 
 and their professions cover nearly all the lines 
 of our social life. They are the flower of New 
 England, in so far as its blossoms can be gath- 
 ered in one communit3^ The pivots on which 
 your living, good reader, and my living turns ; 
 the models to which we shall point our children, 
 and ask them to imitate. For character far 
 away affects us little ; it is the men of our own 
 time who impress themselves on us and on those 
 coming next after. These men, and others like 
 them, make our manners, in the higher sense, 
 in which these are the fruit of the man, and not 
 merely an external form or temporary custom. 
 Legislate, cultivate, theorize as you will, it is in 
 the best men and women of the day humanity 
 finds itself, and seeks to know and improve 
 itself. Is it good law, good morals, good relig- 
 
'200 PROHIBITORY LIQUOR LAW. 
 
 ion, which reviles these illustrious citizens and 
 holds them up for execration, because their 
 opinion in a matter of diet and social habit or 
 political action differs from another respectable 
 party of voters and moralists ? A petty spirit, 
 narrowing daily, accelerating through our social 
 mechanisms, impels the average unthinking mor- 
 alist to enforce his social or political hobby on 
 those unlike himself. Is this a process which 
 will breed nobler and better men ? Are we so 
 rich in heroes that we need no more Andrews 
 or Agassizs in this western world ? 
 
 This great theme — the essential dignity and 
 moral worth of human law — cannot be reached 
 in a paragraph, nor dismissed in a volume. 
 That view of it we have attempted to set forth 
 — its partial relation with moral reform and 
 humane impulse — is far-reaching and widely 
 extended. No one person can grasp the whole 
 topic ; but we claim that we have established 
 certain principles, both by the facts of experi- 
 ence and by those dictate's of reason which con- 
 trol the nature of law, and ultimately control 
 governmental action. 
 
^ IMMORAL LAW-MAKING. 201 
 
 If the narrow theory of abstinence ever he- 
 comes the common basis of social life, the result 
 must come through the agency of the individual 
 acting on his fellows in ethical effort. Any 
 civil pressure instituted to forward such result 
 would not hasten but retard it. The individ- 
 ual must have his freedom, even to injure him- 
 self, and must not be restrained until his acts 
 directly injure other persons. This gives the 
 individual, while he has his senses, the right of 
 drinking, and forbids the state from entirely 
 cutting off the supply of liquors or from prohi- 
 bition. In the second place, if temperance in 
 drinking liquors continues to be, as it has been, 
 the social habit of a large majority of the people, 
 it must allow an equal freedom to the individ- 
 ual. The individual cannot be cut off from his 
 normal activity because social good may in an 
 uncertain contingency be harmed. His normal 
 act must be wrong, or directly harmful in its 
 effects, before the law can justly interfere and 
 stop him. If society passes beyond this limit 
 and oppresses the individual, it transcends its 
 9* 
 
202 PROHIBITORY LIQUOR LAW. 
 
 own laws of being, for it was created to de- 
 velop the individual. When it loses this per- 
 ception and oppresses him, it finally loses its 
 vital force and extinguishes itself: for there 
 can be no society without individuals ; an indi- 
 vidual might exist without society, but a society 
 without individuals would be impossible. This 
 principle is the foundation of justice, which, as 
 Madison says, is the end and aim of all societies .j 
 No part of any structure is comparable to its^ 
 foundation ; we can change any part ; the 
 groundwork sustains the whole, and cannot, 
 in itseK be changed. All the benevolence of 
 an angel could not alter these principles. An 
 individual can save himself, his fellow can save 
 him, if the benevolent impulse is wisely di- 
 rected. An individual is in some respects 
 greater than the state. But the nature of 
 justice cannot be altered by benevolence. 
 Justice can move all else, itself excepted. Dr. 
 ^ Winship could lift nine hundred pounds ; he 
 could not lift his own feet. The basis is im- 
 movable ; humanity must rest somewhere in its 
 
IMMORAL LAW-MAKING. 203 
 
 physical action, and God has given us no surer 
 ground than justice ; mercy may temper, it 
 cannot change the nature of justice. 
 
 The cause of the failure of the prohibitory 
 statutes is not in their parts ; it is not because 
 the quantity prohibited is too large or too small, 
 the fines and imprisonment too lenient or too 
 severe, the officers of state too slow or too quick, 
 — it is in their whole, in the basis of the laws 
 themselves. They are unjust. The law is a lie ; 
 whenever it attempts to execute itself, it lies 
 and deceives. To say that worthy citizens have 
 made up their minds they will have such laws, 
 does not change their nature. The American 
 people had made up their mind in immense 
 majority that they would maintain slavery about 
 the year 1852. Did that change the nature of 
 justice ? How long did slavery last ? 
 
 Our prohibitory statute-makers, working on a 
 benevolent motive, have debauched politicians, 
 corrupted legislatures, and soiled the processes 
 of courts, in the administration of these laws. 
 This is disorder, and society should be in itself 
 
t 
 
 204 PROHIBITORY LIQUOR LAW. 
 
 the highest order. The broad and loyal Rich- 
 ard Hooker says : — • 
 
 " Wherefore that Ave may briefly end ; of law there 
 can be no less acknowledged than that her seat is 
 the bosom of God, her voice the harmony of the 
 world ; all things in heaven and earth do her hom- 
 age, the very least as feehng her care, and the great- 
 est as not exempted, from her power; both angels 
 and men and creatures, of what condition soever, 
 though each in different sort and manner, yet all 
 with uniform consent, admiring her as the mother of 
 their peace and joy." 
 
 Appetite is one of the lowest and meanest of 
 divine creations ; yet what creature exists with- 
 out it, what action can accomplish itself which 
 goes not hand and hand with it ? Life, the very 
 emanation of divine being, is itself chained to it ; 
 a royal master ever depending on this perpetual 
 slave. It is the intention and aim of man to 
 live, but the motive impulse to that living is in 
 the spring of the appetite. Physical destruction 
 of appetite is physical death. 
 
 In the moral world, the state can regulate and 
 care for appetite ; it cannot kill that meanest 
 
IMMORAL LAIY-MAKING. 205 
 
 creature of God. When the harmony of law is 
 broken, when power attempts this ethical mur- 
 der, the little creature outdoes mighty states, 
 for it rests itself on that pure justice which is 
 in the being of God ! 
 
APPENDIX. 
 
 THERE is no complete and harmonious state- 
 ment of the relation of alcohol to the animal 
 economy to be found. The people have an old 
 and common saying that " wine is the milk of old 
 age." They do not say that it is cow's milk, nor 
 that old age needs a poison to nourish it. On the 
 other hand, the universal word " intoxicated " means 
 poisoned ; and it is almost certain that when a man 
 is overdosed with liquor he is as if he were poisoned. 
 These two conclusions of the common mind — first, 
 that it is almost a food, and second, that it becomes 
 in excess as dangerous as a poison — are very near 
 to the scientific conclusions which we must draw 
 from the excerpts which follow, and which are 
 drawn from the most weighty authorities. 
 
 The following propositions represent fairly, as we 
 believe, the present state of physiological knowledge 
 on this subject : — 
 
 I. Alcohol is a substance which is used in the 
 animal economy, and not wholly eliminated. The 
 conditions of this use, or its exact mode of working 
 in the body, are in doubt. 
 
208 PROHIBITORY LIQUOR LAW. 
 
 II. The question whether it acts as a positive food 
 or a stimulant is in doubt. Late investigators lean 
 more and more toward the food theory. 
 
 III. Most authorities agree that in moderate doses 
 it diminishes bodily waste, like tea and coffee. Some, 
 however (including among these advocates of the 
 food theory), hold that tea and coffee do not dimin- 
 ish waste, and they put alcohol into the same class. 
 
 We are permitted to cite from studies made by 
 Mr. Amasa M. Eaton : — 
 
 " In one sense, alcohol, that is, pure alcohol, is a 
 poison ; but the confusion here consists in having 
 two meanings in mind, and in passing unconsciously 
 from one to the other, supposing both to be alike. 
 Dr. Percy ('An Experimental Enquiry concerning 
 the Presence of Alcohol in the Ventricles of the 
 Brain,' &c., London, 1839) injected from two to four 
 ounces of strong alcohol into the stomachs of dogs. 
 Death followed, as well it might, the alcohol he used 
 containing about eighty per cent of absolute alco- 
 hol. The strongest brandy and whiskey contain but 
 fifty-four per cent of alcohol. The same quantity 
 of solutions of this strength of tobacco, tea, coffee — 
 perhaps even of salt — v^ould produce the same re- 
 sult; but as this is not the form or manner in which 
 alcohol is ever administered, no reasoning can be 
 drawn from such results. That pure alcohol (like 
 many other substances, if taken pure, but which 
 never are so taken) is a poison, is a statement there 
 is no use in proving or adducing as evidence, for 
 none will deny it. 
 
APPENDIX. 209 
 
 " Lallemand, Perrin, and Duroy ('Du Role de 
 I'Alcohol et des Anesthetiques dans I'Organisme,' 
 Paris, 1860) are advocates of total elimination, in 
 which view they are supported by many others, but 
 not by the latest experimenters. To the same effect 
 is Dr. Victor Subbotin, in the ' Zeitschrift fiir Bio- 
 logie,' Heft lY. On the other hand, Dr. Anstie 
 (' Stimulants and Narcotics,' and in various articles 
 in the Medical Journals), after experiments made in 
 consequence of Lallemand, Perrin, and Duroy's re- 
 sults, came to the conclusion that the original com- 
 mon opinion was right, and that only a small portion 
 of any alcohol taken is eliminated unaltered. These 
 results have been confirmed by Dupre (' On the 
 Elimination of Alcohol,' read before the Royal So- 
 ciety, of which an abstract may be found in ' The 
 Practitioner ' for March, 1872). 
 
 " ' First. The amount of alcohol eliminated per 
 day does not increase with the continuance of the 
 alcohol diet; therefore all the alcohol consumed 
 daily must, of necessity, be disposed of daily ; and 
 as it certainly is not eliminated within that time, it 
 must be destroyed in the system. 
 
 " ' Second. The elimination of alcohol following 
 the taking of a dose or doses of alcohol is completed 
 twenty-four houi-s after the last dose of alcohol has 
 been taken. 
 
 "'Third. The amount of alcohol eliminated in 
 both breath and urine is a minute fraction only of 
 the amount of alcohol taken.' 
 
 " Still more to the point are the experiments and 
 
 N 
 
210 PROHIBITORY LIQUOR LAW. 
 
 results of Dr. Hammond (' Effects of Alcohol on the 
 Nervous System — Inaugural Address as President 
 of the Neurological Society of New York,' published 
 in 'The Psychological and Medico-Legal Journal' 
 for July, 1874), He performed three series of exper- 
 iments on himself, taking alcohol, first, when the 
 food taken was just sufficient for the w^ants of the 
 organism; second, when it was not sufficient; and 
 third, when it was more than sufficient. Of course 
 I have not space here to give any sufficient explana- 
 tion of these and other experiments made, as quoted 
 above. For all details I must refer the curious reader 
 to the memoirs cited. Dr. Hammond says, in sum- 
 ming up: ' After such results, are we not justified in 
 regarding alcohol as food ? If it is not food, what 
 is it ? We have seen that it takes the place of food, 
 and that the weight of the body increases under its 
 use. Any substance which produces the effects 
 w^hich we have seen to attend on the use of alcohol 
 is essentially food, even although it is not demon- 
 strable at present that it undergoes conversion into 
 tissue. If alcohol is not entitled to this rank, many 
 substances which are now universally placed in the 
 category of aliments must be degraded from their 
 positions.' 
 
 . " ' Alcohol retards the destruction of the tissues. 
 By this destruction force is generated, muscles con- 
 tract, thoughts are developed, organs secrete and 
 excrete. Food supplies the material for new tissue. 
 Now, as alcohol stops the full tide of this decay, it 
 is very evident that it must furnish the force which 
 
APPENDIX. 211 
 
 is developed under its use. How it does this is not 
 clear. But it is not clear how a piece of iron deflects 
 a magnetic needle when held on the opposite side 
 of a stone wall or a feather bed. Both circum- 
 stances are ultimate facts, which, for the present at 
 least, must satisfy us. That alcohol enters the blood 
 and permeates all the tissues, is satisfactorily proven. 
 Lallemand, Perrin, and Duroy contend that it is 
 excreted from the system unaltered. If this were 
 true of all the alcohol ingested, its action would be 
 limited to its effects upon the nervous system, pro- 
 duced by actual contact with the nervous tissues ; 
 but there is no more reason to suppose that all the 
 alcohol taken into the system is thus excreted un- 
 altered from the body, than there is for suj^posing 
 that all the carbon taken as food is excreted from 
 the skin and lungs as carbonic acid. It is not at 
 all improbable that alcohol itself furnishes the force 
 directly, by entering into combination with the first 
 products of tissue decay, whereby they are again 
 assimilated, without being excreted as urea, uric 
 acid, &c. Many of these bodies are highly nitro- 
 genous, and under certain circumstances might yield 
 their nitrogen to new tissues. Upon this hypothesis, 
 and upon this alone, so far as I can perceive, can be 
 reconciled the facts that an increase of force and a 
 diminution of the products of the decay of tissue 
 attend upon the ingestion of alcohol.' . . . 
 
 " ' It would be only fair to ask me what consti- 
 tutes excess? and if you did, I should answer that, 
 in the abstract, I do not know, any more than I 
 
212 PROHIBITORY LIQUOR LAW. 
 
 know how mucli tea or coffee any one of you can 
 drink with comfort or advantage ; how many cigars 
 you can smoke without passing from good to bad 
 effects ; how much mustard on your beef agrees with 
 you, or how much disagrees; or how much butter 
 you can eat on your buckwheat cakes. In fact, I 
 do not know that you can use any of these things 
 without injury ; for to some j^ersons tea and coffee 
 and tobacco and mustard and butter are poisonous. 
 Every person must, to a great extent, be a law unto 
 himself in the matter of his food ; no one can a 
 'priori tell him what and how much are good for 
 him. A single glass of wine may be excess for some 
 individuals, while to others it fills a role which noth- 
 ing else can fill. That alcohol even in large quanti- 
 ties is beneficial to some persons is a point in regard 
 to which I have no doubt ; but these persons are 
 not in a normal condition, and when they are re- 
 stored to health their potations should cease.' 
 
 "Dr. Curtis, of New York, says: 'In ordinary 
 amounts alcohol is wholly consumed, transformed in 
 the system, and, by the nature of its chemical com- 
 position, is capable, like certain elements of ordinary 
 food, of thus yielding force which can be used by 
 the economy to do life-work, <fcc. And thus, within 
 certain limits of dose, alcohol is transformed like 
 ordinary food in the system without producing any 
 injurious effects, and, yielding useful force for the 
 purposes of the economy, must be considered as a 
 food in any philosophical sense of the word.' I 
 wish to call particular attention to what he further 
 
APPENDIX. 213 
 
 says : * It is an important point to know, and one 
 little nnderstoorl, that this food-action is attended 
 with no exciting or intoxicating influence ; but the 
 whole effect, like that of ordinary food, is seen in the 
 maintenance or restoration, according to cii'cum- 
 stances, of that balance of function called health. 
 But if taken in greater quantity than can be utilized 
 as a force-yielding food, the excess of alcohol acts as 
 a poison, producing a well-known train of perturba- 
 tions of function. All signs of departure from the 
 natural condition in the drinker, from the first flush- 
 ing of the cheek, brightening of the eye, and un- 
 natural mental excitement, to the general paralysis 
 of complete drunkenness, belong equally to the poi- 
 sonous effect of alcohol. Even the early phases of 
 alcoholic disturbance, which are often improperly 
 called " stimulating," are part and parcel of the 
 injuriously disturbing influence of overdosage, and 
 must be put in the same category with the more 
 obviously poisonous effects of pronounced intoxi- 
 cation. Alcohol has thus a twofold action. First, 
 it is capable, in proper doses, of being consumed 
 and utilized as a force-producer ; in wliich case 
 there is no visible disturbance of normal function. 
 Such action cannot be distinguished, either by the 
 drinker or the physiologist, from that of a quickly 
 digestible fluid food, and is no more an " excitement" 
 or " stimulation," followed by a " recoil " or " depres- 
 sion," than is the action of a bowl of hot soup or a 
 glass of milk. The second action is the poisonous 
 influence of an excess of alcohol circulatinir in the 
 
214 PROHIBITORY LIQUOR LAW. 
 
 blood, which makes itself sensible to the drinker by- 
 peculiar sensations and disturbances, and is not only- 
 followed by " depression," but is itself a form of de- 
 pression, — that is, a disturbance of balance; an 
 unnatural perturbation of the normal working of 
 the functions.' 
 
 " Abstinents are very fond of quoting the fact that 
 alcohol may be found in the brain of a person who 
 has died from excessive drinking ; bat, as Dr. Ham- 
 mond pertinently says : ' The amount of essential oil 
 present in onions is far less in proportion than the 
 quantity of alcohol contained in the mildest wines ; 
 and yet we cannot eat an onion without this oil 
 passing into the blood, and impregnating the air 
 expired in respiration with its peculiar odor. Doubt- 
 less the brain of a person who has dined heartily on 
 onions would exhale the characteristic odor of the 
 vegetable.' 
 
 " Chronic alcoholic intoxication would rarely, if 
 ever, ensue from the moderate use of pure light 
 wines or malt liquors. But it is impossible to get 
 pure wine. It is not generally known that all the 
 foreign wines sold in this country are made stronger 
 by the addition of alcohol, before or after importa- 
 tion, to suit the strong taste of the American market. 
 Some of the choicest wines, when pure, do not con- 
 tain more than six to ten per cent of alcohol, — no 
 more than good cider, — and no wine can, by fer- 
 mentation only, be made to contain more than 
 seventeen per cent of alcohol. All over this is 
 added, even if there be no other adulteration. And 
 
APPENDIX, 215 
 
 the amount and quality of this adulteration is fear- 
 ful. For details I must refer to the standard Toxi- 
 cologys, such as Christison, Wethevbee, and others, 
 and Hassall and others on the 'Adulterations of 
 Food,' and to a summary in ' Alcohol, its Combi- 
 nations, Adulterations, and Physical Effects,' by Col. 
 Dudley, just published. 
 
 " If the so-called temperance party, instead of 
 vainly attempting to prohibit the sale of liquors, 
 regardless of what may be consumed outside of 
 retail stores, would help to educate the people as to 
 the adulterations now used in all wines, and would 
 supply them with pure wine of the natural strength, 
 with no alcohol added, they would accomplish more 
 than they have yet accomplished in aiding the sup- 
 pression of intemperance ; for the instinct to drink 
 something stimulant exists, and will exist, and might 
 as well be recognized. It is useless to ignore it or 
 to attempt to destroy it. It exists in every people 
 the world over." 
 
 The very delicate question whether alcohol is a 
 food or a stimulant receives some light from tlie 
 following statement of Dr. Bowditch. Professor 
 Voit's authority in these matters is second to none : — 
 
 "ALCOHOL AS A NUTRITIVE AGENT. 
 
 " By H. P. Bowditch, M.D., Boston. Eead before the Boston 
 Society of Medical Sciences. 
 
 " The experiments of Dr. Subbotin ^ were per- 
 formed on rabbits enclosed in an apparatus, by 
 
 1 On the physiological importance of alcohol for the animal 
 organism. Zeitschrift f iir Biologic, vii. 361. 
 
216 PROHIBITORY LIQUOR LAW.' 
 
 means of which the exhalations of the skin and 
 lungs could be examined for alcohol. The urine 
 was also collected and examined for the same sub- 
 stance. 
 
 "The experiments showed that, in the first five 
 hours after the introduction of 3.45 grammes of 
 alcohol into the stomach of a rabbit, about 2 per 
 cent was eliminated by the kidneys, and 5 per cent 
 by the lungs and skin. 
 
 "Experiments extending over a greater length of 
 time led to the conclusion that, usually, during 
 twenty-four hours, at least 16 per cent of the in- 
 jected alcohol leaves the body in an unchanged con- 
 dition (or perhaps as aldehyde), and that besides 
 this elimination by lungs, skin, and kidney, a portion 
 of the alcohol is oxidized in the organism. Although 
 by this oxidation force must be set free in the organ- 
 ism, the author does not consider that alcohol is on 
 that account to be regarded as a nutriment, for the 
 functions of the animal body depend for their per- 
 formance, according to Dr. S., upon the transforma- 
 tion of living material, le., of the constituent parts 
 of the body, and not upon the decomposition of 
 matter foreign to the body. 
 
 "In a note appended to Dr. Subbotin's essay, 
 Professor Yoit expresses himself as follows: 'I do 
 not agree entirely with Dr. Subbotin in his views 
 on the importance of alcohol as a nutriment. I de- 
 fine a nutriment as a substance which is capable of 
 furnishing to the body any of its necessary constitu- 
 ents, or of preventing the removal of such con- 
 
APPENDIX. 217 
 
 stituents from the body. To the first class belong 
 such substances as albumen (since it can be depos- 
 ited as such in the body), or fat or water or the min- 
 eral constituents of the body; to the second class 
 belong such substances as starch, which hinders the 
 loss of fat from the body. If a nutriment is defined 
 as a substance which, by decomposition, furnishes 
 living force to the body, the definition would not be 
 exhaustive, for it would exclude water and the min- 
 eral constituents of the body. Alcohol must, there- 
 fore, to a certain extent, be regarded as a nutriment, 
 since, under its influence, fewer substances are de- 
 composed in the body. It plays, in this respect, a 
 similar (though quantitatively very different) part 
 to that of starch, which also protects fat from decom- 
 position, and, when taken in excess, causes deposi- 
 tion of fat in the organs or fatty degeneration. If a 
 part of the alcohol is decomposed in the body into 
 lower forms of chemical combination, it r)%ust give 
 rise to living force, which either benefits the body 
 in the form of heat, or may, perhaps, be used for the 
 performance of mechanical work; the same is true 
 of acetic acid, which is also not to be considered as 
 an ultimate excretory product, and from which, 
 therefore, in decomposition, potential force passes 
 into living force. 
 
 " ' It is another question, however, when we ask 
 what importance alcohol has for us as a nutriment, 
 and whether we take it in order to save fiat from 
 decomposition and furnish us with living force, — 
 in other words, to introduce a nutriment into the 
 10 
 
218 PROI^IBITORY LIQUOR LAW. 
 
 body. Since alcohol, when taken in considerable 
 amount, causes disturbances in the processes of the 
 animal economy, we cannot introduce it in quanti- 
 ties sufficient for nourishment as we do other nu- 
 triments, and in the amount which we can take 
 without injury its importance as a nutriment is too 
 small to be considered. In this point, then, I agree 
 entirely with Dr. Subbotin ; we use alcohol not on 
 account of its importance as a nutriment, but on 
 account of its effects as a stimulant or relish.* 
 
 " Professor Voit's definition of a nutriment is rather 
 more comprehensive than those usually given ; but 
 it has the merit of great exactness, and of leaving 
 no doubt as to its applicability to any given sub- 
 stance. Whether this definition or any other be 
 adopted, it is, of course, essential, as a preliminary 
 to the discussion of the nutritive value of alcohol or 
 any other substance, that we should define as exactly 
 as possible what we understand by the terms 'nu- 
 triment' and 'nutrition.' 
 
 "Although, as Professor Yoit says, alcohol can- 
 not, under normal circumstances, be introduced into 
 the body in sufficient amount to be of any import- 
 ance as a nutriment without producing toxic effects, 
 may it not be that in those morbid conditions of the 
 system where large amounts of alcohol are borne 
 without causing narcotism, the nutritive properties 
 of the substance really become important, and that 
 patients who are supported by alcohol through peri- 
 ods of great weakness or exhaustion are really nour- 
 ished and not simply stimulated by it ? " 
 
APPENDIX. 219 
 
 We believe there is now no difference worth 
 noticing from the opinion that, in proper doses, it 
 is a usefuil agent. We cite Dr. Woodman, in the 
 "London Medical Record," May 13, 1874 : — 
 
 "Riegel on the Influence of Alcohol on Temper- 
 ature of the Human Body : from Deutsclies Archiv fiir 
 Klinische Medicin. Riegel concludes that although 
 alcohol scarcely deseiwes the reputation given to it 
 in England, as a decided depressor of temperature, 
 yet, on the other hand, it never essentially raises the 
 temperature, — the constant dreaid of continental 
 practitioners, — and it is decidedly one of those things 
 which diminish bodily waste, like tea and coffee. 
 On the whole, his experiments confirm those of Binz 
 and Bouvier (we may add, of Dr. Parkes, Dogiel, 
 Sydney Ringer — and the Reporter)." 
 
 Dr. Binz, of Bonn, as cited in " The American 
 Journal of the Medical Sciences," January, 18T4, 
 p. 231, "said his experiments showed a threefold 
 action, — the diminution of the heat of the body, 
 reduction of the putrid processes, andraising of the 
 action of the heart. Alcohol was more than a simple 
 stimulant ; it was a strong antipyretic, and an equally 
 powerful antiseptic. It was a priori to be expected 
 that alcohol would not be without its influence on 
 the metamorphosis of tissues. An agent that, con- 
 sumed in large doses, clearly lowered the combus- 
 tion, must also be supposed to decrease the urea and 
 the carbonic acid ; and this was in reality the case." 
 
 Another opinion of alcoliol is, that it is " an unstable 
 combination of carbon, hydrogen, and oxygen, which. 
 
220 PROHIBITORY LIQUOR LAW. 
 
 when undergoing decomposition, is capable of setting 
 free a large amount of force {e.g.^ when burning in 
 a spirit-lamp). If this decomposition takes place in 
 the body, as it doubtless does to a considerable 
 extent, the force set free must take the form of heat 
 or muscular work. In other words, alcohol must 
 contribute to the maintenance of the animal economy 
 in the same way that food does. The nutritive 
 power of alcohol is, however, in nonnal conditions of 
 the body, very slight, for the reason pointed out by 
 Prof. Voit. But when we see a patient suffering from an 
 exhausting disease, actually living weeks and months 
 on little else than a daily bottle of wine, we are 
 forced to the conclusion that the toxic influence of 
 alcohol in the nervous system is for some reason held 
 in abeyance, so that the nutritive power becomes of 
 importance, and that the patient is really /ecZ, and not 
 merely stimulated^ by wine." 
 
 Dr. Anstie, in the " Practitioner," July, 1874 : " It is 
 scarcely possible, therefore, but that the solution of 
 the questions as to the action of alcohol in the body 
 will also bring about the discovery of new physio- 
 logical facts of great interest and importance : — 
 
 " 1. If alcohol be a force-producing food, as seems 
 by far the most likely, it is 2)robably of great value 
 in that capacity, on account of the rapidity with 
 which its transformations take place. It is, however, 
 abundantly certain, that beyond a certain dosage 
 (which is pretty clearly made out for the average, 
 though of course there are individual exceptions in 
 both directions) it becomes a narcotic poison of a 
 
APPENDIX. 221 
 
 very dangerous character in every respect, not the 
 least disadvantage being that it cannot be eliminated 
 to any considerable extent. 
 
 " 2. If alcohol does not disappear by oxidation, it 
 must undergo some as yet quite unknown trans- 
 formation, after which it must escape unrecognized 
 in the excretions. I have heard various attempts to 
 suggest such modes of disappearance, but nothing, 
 so far, which wears any air of probability. 
 
 " 3. If alcohol, however, be indeed oxidized, and yet 
 does not beget force which can be used in the organ- 
 ism, this would be the strangest possible discovery. 
 Considering the very high theoretical force-value of 
 the 600 to 800 grains of absolute alcohol which mil- 
 lions of sober persons are taking every day, we may 
 well be hopeless of any reasonable answer to the 
 question, Why does not this large development of 
 wholly useless force within the body produce some 
 violent symptoms of disturbance ? " 
 
 The effects produced on the brain by alcohol are 
 much exaggerated in the estimation of the iDublic. 
 " P. Ruge^ on the effect of alcohol upon the animal 
 organism, quoted from Virchow's Archiv, JlLIJC.^ in 
 Rosenthal's ' Centralblat,' 1870. The author desired 
 to investigate the anatomical changes of animal 
 organs produced by alcoholism, and experimented on 
 twenty-two grown dogs and five rabbits. They finally 
 got as much as 100 ccm. of 90 per cent alcohol daily, 
 and that for months. Upon comparing his results 
 with the Charite Hospital reports of Berlin for 1867 
 and 1868, he did not find any different results as to the 
 
222 PROHIBITORY LIQUOR LAW. 
 
 effect of alcohol upon the human brain. Of ten per- 
 sons who died of delirium tremens, but one showed 
 a decided hemorrhagic pachymeningitis, one an 
 increase of the dura, and in the rest the texture of 
 the brain was normal. On the other hand, forty- 
 seven cases of pachymeningitis were caused without 
 any abuse of spirits. The five rabbits did not show 
 any material change of any organ. Former obser- 
 vations of alcoholic influence upon the animal tem- 
 perature were corroborated. The temperature of 
 dogs, especially when they were intoxicated, sank by 
 several degrees ; their pulse and respiration increased 
 at the same time." 
 
 " Pavey on Food and Dietetics " — the latest au- 
 thority in these matters — says: "It Avill be seen 
 that much divergence of opinion has prevailed upon 
 the prime question, whether alcohol is to be regarded 
 as possessing any alimentary value or not. It will 
 suffice here to refer the reader to what has been 
 already mentioned, and to state that the weight of 
 evidence appears to be in favor of the affirmative. 
 A small portion seems, undoubtedly, to escape from 
 the body unconsumed ; but there is reason to believe 
 that the larger portion is retained and turned to 
 account in the system." p. 357. 
 
 " Beer is a refreshing, exhilarating, nutritive, and, 
 when taken in excess, an intoxicating beverage." 
 p. 365. 
 
 " Although chemistry displays the existence of a 
 number of constituents in wine, yet it may be con- 
 sidered that in its action upon the system we have 
 
APPENDIX. ZZ6 
 
 not to deal with the effect of its independent prin- 
 ciples, but with a liquid in which the ingredients 
 should be so amalgamated, incorporated, or blended 
 toirether as to make a homosfeneous whole. For 
 instance, if we look to alcohol, which forms the most 
 active component, the effects of a certain amount of 
 this principle, as it is contained in wine, are not 
 identical with those of the same amount diluted to 
 an equal extent with water. The alcohol appears 
 to become blended with the other ingredients, and, 
 in this state, to exert a somewhat modified action 
 upon the system." p. 376. 
 
 We may add that Dr. Pavey does not say whether 
 it is wise or unwise to take alcoholic drinks. He 
 leaves the matter to each individual. We hold that 
 legislators should be equally discreet. 
 
 Cambridge : Press of Jolin Wilson & Son. 
 
Messrs, Roberts Brothers' Publications, 
 
 LAOCOON. An Essay upon the Limits of Painting 
 and Poetry. With remarks illustrative of various points 
 in the History of Ancient Art. By Gotthold Ephraim 
 Lessing. Translated by Ellen Frothingham. i6mo. 
 Price $1.50. 
 
 In reference to this work, we can give our readers no better proof of its merit 
 than by quoting the words of an English critic uttered many years ago : " The 
 author or the ' Laocoon' was perhaps the greatest critic of modem times. The 
 object of this celebrated work is to show that the isolation of the several fine arts 
 from each other is essential to their perfection, and that their common aim is the 
 production of beauty. The peculiar province of poetry is proved to be entirely dis- 
 tinct both from that of morality and of philosophy ; being limited, strictly speaking, 
 to the exhibition of ideal actions. These views, in which Lessing differed widely 
 from Klopstock, who made moral beauty, and also from Wieland, who considered 
 nature and truth, as the great aim of poetry, but in which he agreed with Aristotle, 
 and was closely followed in their a^sthetical theories by Goethe, Schiller, and Hum- 
 boldt, were enforced with great argumentative power, extraordinary purity and 
 correctness of taste, and with rich and pertinent illustrations from the art and 
 literature of Greece." 
 
 From the Bostoji Tra7iscript. 
 
 It is a matter for real congratulation that Messrs. Roberts Brothers have given 
 us the " Laocoon" of Lessing in a form accessible to readers ignorant of German. 
 Miss Frothingham has evidently done her work of translation as a labor of love. 
 Her rendering is at once accurate, and in pure, flowing English ; an achievement 
 very dif&cult to accomplish where the whole grammatical structure of two languages 
 differs so widely. It is also a feature of great value toward the general usefulness 
 of the book that she has appended translations of the many passages from Latin 
 and Greek authors through which Lessing illustrates his argument. 
 
 The growing interest in our country in questions of art and criticism ought to 
 secure for this work a wide class of readers. No tiioughtfid person ever forgets 
 the outburst of enthusiasm its first reading awakened in him. Even Goethe said 
 of it that in the confused period of his own youth it cleared up the whole heavens 
 to him and made his path plain before him. As an offset to such books as those 
 of Ruskin, marvellously rich and suggestive, but full of subjective caprice and dog- 
 matism, it teaches invaluable lessons of method. Lessing was a legislator in the 
 domain of criticism. His insight was so nearly uneiTing, and his knowledge so 
 vast and accurate, that his verdicts stand like those of a Mansfield or Marshall in 
 tlie courts of law. 
 
 . . . The book must be read and re-read. It created an epoch in art criticism 
 when it first appeared, and its lessons are as fresh and weighty to-day as ever. On 
 every page great principles are developed which help one to an ever deeper appre- 
 ciation 01 the works of the great masters in art and literature. 
 
 Sold everywhere by all booksellers. Mailed, postpaid, by 
 the Publishers, 
 
 ROBERTS BROTHERS, Boston. 
 
Messrs. Roberts Brothers' Publications, 
 
 ENGLISH LESSONS FOR ENGLISH PEOPLE. 
 
 By Rev. E. A. Abbott, M.A., and Prof. J. R. Seeley, 
 M.A. Parti. — Vocabulary. Part H. — Diction. Part 
 III. — Metre. Part IV. — Hints on Selection and Ar- 
 rangement. Appendix. i6mo. Price $1.50. 
 
 FromtheLondo7iAthenceuin. 
 The object of this book is evidently a practical one. It is intended for ordinary 
 use by a large circle of readers ; and though designed principally for boys, may be 
 read with advantage by many of more advanced years. Ore of the lessons which 
 it professes to teach, " to use the right word in the right place," is one which no 
 one should despise. The accomplishment is a rare one, and many of the hints 
 here given are truly admirable. 
 
 From tJte Southern Review. 
 
 The study of Language can never be exhausted. Every time it is looked at by 
 a man of real ability and culture, some new phase starts into view. The origin 
 of Language ; its relations to the mind ; its historj'' ; its laws ; its development ; 
 its struggles ; its triumphs ; its devices ; its puzzles ; its ethics, — every thing 
 about it is full of interest- 
 
 Here is a delightful book, by two men of recognized authority, — the head 
 Master of London School, and the Professor of Modem History in the University 
 of Cambridge, the notable author of " Ecce Homo." The book is so compre- 
 hensive in its scope that it seems almost miscellaneous. It treats of the vocabulary 
 of the English Language ; Diction as appropriate to this or that sort of compo- 
 sition ; selection and arguments of topics ; ISIetre, and an Appendix on Logic. 
 All this in less than three hundred pages. "Within this space so many subjects 
 cannot be treated exhaustively ; and no one is, unless we may except Metre, to 
 which about eighty pages are devoted, and about which all seems to be said that 
 is worth saying, — possibly more. But on each topic some of the best tilings are 
 said in a very stimulating way. The student will desire to study more thoroughly 
 the subject into which such pleasant openings are here given ; and the best pre- 
 pared teacher will be thankful for the nvunber of striking illustrations gathered up 
 to his hand. 
 
 Tlie abundance and freshness of the quotations m.akes the volume very attrac- 
 tive reading, without reference to its didactic value. 
 
 Sold by all booksellers. Mailed, ^postpaid, by the Pub' 
 Ushers^ 
 
 ROBERTS BROTHERS, Boston. 
 
14 ROBERTS BROTHERS' PUBLICATIONS. 
 
 THE 
 
 INTELLECTUAL LIFE. 
 
 By PHILIP GILBERT HAMERTON, 
 
 AUTHOR OP 
 
 "A Painter's Camp," "Thoughts About Art," "The Un- 
 known River," *' Chapters on Animals." 
 
 Square l2mo, cloth, gilt. Price $2.00. 
 
 Front the Christian Union. 
 
 " In many respects this is a remarkable book, — the last and best production 
 of a singularl}' weii balanced and finely cultured mind. No man whose life was 
 not lifted above the anxieties of a bread-winning life could have written this work ; 
 which is steeped in that sweetness and light, the virtues of which Mr. Arnold so 
 eloquently preaches- Compared with Air. Hamerton's former writings, ' Th-; 
 
 Intellectual Life' is incomparably his best production But above all, 
 
 and specially as critics, are we charmed with the large impartiality of the writer. 
 Mr Hamerton is one of those peculiarly fonunate men who feve the inclination 
 and means to \w& an idea! life- From his youth he ha? lived in an atmosi:)here 
 of culture and light, moving with clipped wings in a charmed circle of thought. 
 Possessing a peculiarly refined and delicate nature, a passionate love of beauty, 
 and purity and art ; and ha\'ing the means to gratify his tastes, Mr. Hamenon 
 has held himself aloof from the commonplace routine of life ; and by constant 
 study of books and nature and his fe'.low men, has so purified his intellect and 
 tempered his judgment, that he is able to view things from a higher platform even 
 than more able men whose natures have been soured, cramped, or influenced by 
 the necessities of a laborious existence. Hence the rare impartiality of his deci- 
 sions, the catholicity of his views, and the sympathy with which he can discusa 
 the most irreconcilable doctrines. To read Mr. Hamerton's writings is an intel- 
 lectual luxury. They are not boisterously strong, or excitir.g, or even very forci- 
 ble ; but they are instinct with the finest feeling, the broadest sympathies, and a 
 philosophic calm that acts like an opiate on the unstrung nerves of the hard- 
 wrought literar>' reader. Calm, equable, and beautiful, 'The Intellectual Life,' 
 when contrasted with the sensational and half digested clap-trap that forms so 
 large a portion of contemporary' literature, reminds one of the old picture of the 
 nuns, moving about, calm and seif-possessed. through the fighting and blasphem- 
 ing crowds th;%t thronged the beleagured city-'' 
 
 "This book is written with perfect singleness of purpose to help other* 
 towards an intellectual life," says the Boston Daily Advertiser. 
 
 " It is eminently a book of counsel and instruction," says the Bostoti Post. 
 
 " A book, which it seems to us will take a permanent place iu literature, 
 says the New York Daily Mail. 
 
 Sold by all Booksellers. Mailed, postpaid, by the Pub* 
 lisncrs, 
 
 ROBERTS BROTHERS, Boston. 
 
Messrs. Roberts Brothers' Puhlications, 
 
 GOETHE'S 
 
 Hermann and Dorothea. 
 
 TRANSLATED FROM THE GERMAN 
 
 By ELLEN FROTHINGHAM. 
 
 WITH ILLUSTRATIONS. 
 
 Thin Svo, clotJi^ gilt, bevelled boards. Price $2.00. 
 A cheaper editio7ij i6mo, cloth. Price %\. 00. 
 
 "Miss Frothingham's translation is something to be glad of: it lends itself 
 kindly to perusal, and it presents Goethe's charming poem in the metre of the 
 original. ... It is not a poem which could be profitably used in an argument for 
 the enlargement of the sphere of woman : it teaches her subjection, indeed, from 
 the lips of a beautiful girl, which are always so fatally convincing ; but it has its 
 charm, neveriheless, and will serve at least for an agreeable picture of an age when 
 the ideal woman was a creature around which grew the beauty and comfort and 
 security of home." — Atlantic Monthly. 
 
 "The poem itself is bewitching. Of the same metre as Longfellow's ' Evan- 
 geline,' its sweet aiTd measured cadences carry the reader onward with a real pleas- 
 ure as he becomes more and more absorbed in this descriptive wooing song. It is 
 a sweet volume to read aloud in a select circle of intelligent friends." — Providence 
 Press. 
 
 " Miss Frothingham has done a good service, and done it well, in translating 
 this famous idyl, which has been justly called * one of the most faultless poems of 
 modern times.' Nothing can surpass the simplicity, tenderness, and grace of the 
 original, and these have been well preserved in Miss Frothingham's version. Her 
 success is worthy of the highest praise, and the mere English reader can .scarcely 
 fail to read the poem with the same delight with which it has always been read bj 
 those familiar with the German. Its charming pictures of domestic life, the 
 strength and delicacy of its characterization, the purity of tone and ardent love of 
 country wl.ich breathe through it, must always make it one of the most admired 
 el Goethe's works.'^ — Bosioft Christian Register. 
 
 Sold everywhere. Mailed, postpaid^ by the Publishers, 
 
 ROBERTS BROTHERS, Boston. 
 

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