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Bussaker was condemned for drunkenness to be whipped with twenty stripes well laid on. Robert Coles, for drunkenness committed at Roxbury, was condemned to be disfranchised, and to wear about his neck so that it would hang upon his outward garment a letter D, made of red cloth, and set upon white, to continue this for a year, and not to leave it off at any time in public, under penalty of forty shillings for the first offense and five pounds for the second. Severity of punishments appeared only to aggravate the evil against which they were directed, for in 1648 the Court was forced to declare that “it is found by experience that a great quantity of wine is spent and much thereof is abused to excess of drinking and unto drunkenness itself, notwithstanding all the wholesome laws provided and published for the preventing thereof." It therefore orders, with a blind perversity which is a remarkable instance of the fatuity which actuates people when they endeavor to accomplish the impossible, that those who are authorized to sell wine and beer shall not harbor a drunkard in their houses, but shall forthwith give him up to be dealt with by the proper officer, under penalty of five pounds for disobedience.
Tobacco, for some cause or other, was especially obnoxious to the early colonial authorities of Massachusetts. The trade in the weed was only allowed to the old planters, but the sale or use of it was absolutely forbidden unless upon urgent occasion for the benefit of health and taken privately. It was also ordered that victualers or keepers of an ordinary shall not suffer any tobacco to be taken into their houses, under penalty of five shillings for every offense, to be paid by the victualer, and twelvepence by the person who takes it. Further, it was ordered that no person should take tobacco publicly, under the penalty of two shillings sixpence, nor privately in his own house or in the house of another before strangers; and that two or more shall not take it together anywhere, under the aforesaid penalty for every offense.
It is true these laws against the use of tobacco are not so severe as some that have been enacted in other countries, but they were equally inefficacious. Thus, a Sultan of Turkey issued an edict to the effect that any one of his subjects detected in the act of smoking should for the first offense have his cheeks bored and transfixed by his pipe; for the second offense he was to have his nose cut off ; and for the third he was to lose his head. Fines in the case of the New Englanders, and mutilation and death in the case of the Turks, have not in the slightest degree prevented the use of tobacco; and that some recent laws to which I shall presently draw attention will prove equally futile there can be no doubt.
In all these instances of sumptuary laws the ground has been
taken that not only was the individual to be benefited, but that society as a whole was to be improved. Prohibitory laws relative to the manufacture and sale of alcoholic liquors which have been enacted in this country in our own times are based upon this assumption, but the arguments that have been used by those advocating such laws show that this is not the only motive by which they are governed. It has been and still is repeatedly asserted in the speeches and writings of these people that those who indulge in alcoholic liquors or in the use of tobacco spend money which could otherwise be more profitably used, and that indulgence in the habit of drinking or smoking directly conduces to idleness and luxurious habits. These assertions are probably true, and the laws against which the practices in question are directed are essentially sumptuary laws.
The laws which several States have enacted relative to the manufacture and sale of alcoholic liquors are true sumptuary laws, notwithstanding the fact that it is claimed by their adherents that they are measures which every independent State having a regard for the welfare of society is in duty bound to enforce. On that ground there are many other acknowledged evils against which the law-making power might very properly direct its energies, and which would interfere scarcely less with personal rights. One chief difficulty with such laws is that if thoroughly enforced, they do harm to those who never under any circumstances drink intoxicating liquors to excess, and yet who are benefited by their moderate use. As a matter of fact they never are enforced equally upon all classes of the community. In the most severe of all the States it is perfectly practicable for any person with pecuniary means to import as much alcoholic liquor for his own use and that of his family and friends as he chooses. The poor man, to whom a glass of beer or of wine taken decently and in order might not only do no harm, but might supply a positive want of his system, has to go without, or else resort to all kinds of deceit and subterfuge to get what he wants. States exceed their legitimate powers when they undertake to prevent a person doing that which is beneficial to him, and which does no harm to any one else. Moreover, as I have already said, such laws, being in this age of the world impossible of enforcement, tend to bring all law into contempt. It is not necessary for me to go into detail on this point; every one who hears me knows how the prohibitory liquor laws of the various States that have passed them are disregarded and ridiculed. Every now and then we hear of some instance where an offender is arrested and punished, but for every one brought before the courts a thousand go unnoticed. In the States of Maine, Vermont, and Rhode Island I know from my own personal experience that, notwithstanding the stringent liquor
laws that exist, it is just as easy for a person to get any kind of liquor he wants as it is in the city of New York.
Upon one occasion, at a prominent hotel in the State of Rhode Island, while at the dinner - table, I asked the waiter to bring me a bottle of champagne. He departed, but returned in a few minutes with the information that I could not have it without a medical prescription. I took his wine-card and writing the mystic symbol “R,” followed it with the words “vini campaniæ, 3 xxxij-Sig. : To be taken p. r. n.”—signing my name to it. In a few minutes he returned with the bottle, and I could have had as many more as I wanted on the same terms.
Several of the States, as we know, have recently receded from their advanced position on prohibition, and the State of Rhode Island has by its Legislature recently resubmitted the question to the people.
In the State of Iowa, not only is there a stringent prohibitory law, but it is made a penal offense for one person to ask another to take a drink. Of course, as I learn from reliable information, the law is almost a dead letter. It can be evaded in a hundred different ways. For instance, one man invites another into his house, takes him to the sideboard, and, perhaps in the presence of a dozen witnesses, pours out two glasses of whisky, drinks one himself, looks away for a moment, and his friend drinks the other. He has not disregarded the letter of the law. Are not such laws as this the height of human folly ?
The State of Minnesota has quite recently struck out still further in the same direction, and has to a still greater extent interfered with the personal liberty of the individual. A law framed, as we are told, by Senator Schaeffer, has recently gone into effect in that State, and which is designed to punish drunkenness. It provides for a fine of from ten to forty dollars for the first offense, from forty to sixty dollars for the second offense, and ninety days in the workhouse for the third. When asked what effect the law would have on the Minneapolis municipal court, Judge Maloney said:
“It will not materially change the order of things with us. Our custom in treating drunkenness is much the same as provided in the new law. There is, however, one feature of the law that differs from the ordinance under which we formerly worked. According to the ordinance, the offense was not punishable unless committed in some public place, while the statute covers drunkenness in secret as well as in the public street. I am glad this bill passed the Legislature. It makes it a crime now in our State to drink to excess, and it is an expression of the public condemnation of drunkenness. I think it will result in doing a great deal of good. For the reasons I have cited, the new law has created
no unusual features in the pastime of drunkenness in this city as yet. Its eventual effect will, of course, depend greatly upon the leniency or strictness of the authorities.”
Now, that drunkenness is both a vice and a sin is not to be questioned; but, if the law-making power sets out to punish vices and sins, it will have its hands full, and will attempt an impossible task. The world has tried this experiment in almost all ages, and uniformly without success. Not very many years ago the ordinances of the Church were in some countries enforced by law; and even now some nations, and, I am sorry to say, some of the States of this very Union of ours, inflict severe punishments upon profane swearers and blasphemers, thus again punishing sins and vices as though they were crimes. A sin or a vice does not necessarily inflict injury upon others, whereas a crime does. Drunkenness is not of itself, properly speaking, a crime; but if a person through his drunkenness creates disorder in the streets, or is offensive in any respect to those with whom he comes in contact, he ought to be punished to just that extent that his disorderly or offensive conduct requires. It is almost impossible for a person to be drunk in the public streets without being in some degree disorderly and offensive, and he is very properly arrested and fined or imprisoned.
But if any law can be more ridiculous, more outrageous in its influence upon the liberty of the citizen, it is this one which the State of Minnesota has recently enacted. A man, for instance, in the sanctity of his own house gets quietly drunk and goes to bed. He has injured no living being but himself, and he has a right to injure himself if he is such a fool. He has a legal right to cut off his hand, or to knock out his teeth, or to punch out his eye, even though by these acts he does inflict injury indirectly upon those who are dependent upon him. He has a natural right to take his own life, and though the State of New York (the only community, to my knowledge, that has such a law upon its statute-book) makes the attempt at self-destruction a crime, the law is so absurd that no one yet has been punished under it.
Moreover, the Minnesota law against drunkenness is almost impossible of enforcement, unless under such a system of espionage and domiciliary visiting as would render it intolerable to any people having a spark of manliness or independence in their character. Think of a police officer armed with a warrant entering a man's house, finding him in bed and in an apparent state of insensibility. He applies the only test known to the average policeman, and smells the breath of his potential victim. He detects the odor of alcohol, and straightway drags the supposed offender before a magistrate. The man may have had a headache, and have taken a glass of wine or of some other liquor; he is naturally
indignant at being treated in so outrageous a manner, and utters his protest in no measured language; his conduct only serves to convince his captors that the charge based upon the odor of alcohol is well founded, and he is mulcted in forty or sixty dollars, or sent to the workhouse for ninety days, as the case may be. No one is safe under such a law; it is often a very difficult matter to determine whether a person is drunk or sober, and frequently it is impossible even by the most minute examination. Again, some people become intoxicated from a single glass of champagne, while others will drink two or more bottles with impunity. It is manifestly unjust to allow an individual peculiarity like this to establish the guilt or innocence of an accused person.
As I have said, why stop at making drunkenness a crime when there are other vices far more immoral and more destructive to the character of the perpetrator? Why not enact a law against lying ? There are laws against slander, which injures the one against whom it is directed, and they are well enough, for to injure another is a crime. But lying in the abstract remains unnoticed by the penal statutes, though a more degrading vice in the eyes of all civilized mankind than mere drunkenness.
On the first of June of the year 1889 a statute went into effect in the State of New York which prohibits, under severe penalties, the selling of cigarettes to minors under the age of sixteen; and the State of Michigan has recently not only enacted a similar law, but goes farther, and interdicts the manufacture of cigarettes within the limits of the State. Is it to be supposed for one moment that minors under the age of sixteen in either State smoke fewer cigarettes than they did before these laws were passed ? How is the vender to know in many cases whether the applicant for cigarettes is over sixteen or not? And is there any difficulty for any minor to get a companion who is undoubtedly over sixteen, or some one else, to buy cigarettes for him ? Legislatures that pass such laws, and governors that sign them, are apparently ignorant of the first principles of jurisprudence. I venture to say that even now, although not two weeks have elapsed since the act went into effect, it is practically a dead letter in the city of New York and throughout the State generally, and I am quite sure that not a single conviction will ever be obtained under its provisions. I am not certain that our society did its full duty in not protesting against the statute-books being encumbered with such rubbish. Cigarette-smoking by minors is an evil to be suppressed by proper instruction and by the intervention of parents and guardians. If these latter can not prevent it, it is quite certain that all the policemen in the State, backed by all the majesty of this particular law, will have their labor for their pains.