Temperance Legislation: Uses and Limits

MORE numerous than any other class in America in the present generation are the reformers. We have no voice of one crying in the wilderness, but the voices of many crying in the marketplace, till the very word " reform ” becomes weariness to the ear and confusion to the understanding. Reform movements in divorce, civil service, fashion, education, come and go, winning our approval and occasionally our support, but one reform we have always with us. By the frightful magnitude of the evil with which it deals, the temperance movement compels attention, and even from the most indifferent at, least a half-hearted support. The present efforts to secure the desired end by legislation are characteristic of the time. There is a general tendency to regard law as a panacea. An abuse once discovered, a law must be passed to correct it. Even in this age of liberty of thought and action we are prone to compel our less numerous neighbors to do and be what we feel sure is right. For a hundred years we have been lauding our principle of government by the majority, until at last the approval of a majority is regarded both as justification of a law and guarantee of its enforcement, while the possibility of a tyranny of the majority is as yet hardly recognized.

The sumptuary legislation of the last few years is an outgrowth and an illustration of the above idea, particularly of the attempt to create moral character by legal enactment. How different was the view of earlier times may he shown by an example from John Milton. That worthy Puritan, protesting against the appointment of government censors of printing, seeks to show the absurdity of attempts to regulate public morals by citing this very matter of temperance : “ Next, what more Nationall corruption, for which England hears ill abroad, then household gluttony ? who shall be the rectors of our daily rioting ? and what shall be done to inhibit the multitudes that frequent those houses where drunk’nes is sold and harbour’d?” The Woman’s Christian Temperance Union of our day would give a curt answer to those questions, but Milton went on to say: “ These things will be and must be ; but how they shall be lest hurtfull, how lest enticing, herein consists the grave and governing wisdom of a State. To sequester out of the world into Atlantick and Eutopian polities, which can never be drawn into use, will not mend our condition ; but to ordain wisely as in this world of evill, in the midd’st whereof God hath plac’t us unavoidably.” I know that the Woman’s Christian Temperance Union, with its pronounced view of woman’s sphere, can have no love for old John Milton or respect for his opinions, but still it may be well to consider whether there be not some truth worth our remembering in these words of his : not in the practice suggested by the opening questions, but in the principles laid down at the close. Measures must change with times and circumstances, but principles are the same now as two hundred and fifty years ago.

We are, then, in danger of forgetting the true function of law. This is not to reform the community, but to impose upon individuals obedience to what is already the common moral sense. A law will be enforced in accordance (1) with the strength in relative numbers, and (2) with the strength in conviction, of those who uphold it. Law is not, as too many reformers seem to regard it, an automatic force. Compare, for instance. the laws against theft with those against liquor selling. Probably ninetynine hundredths of the community believe that stealing is wrong, and perhaps nine tenths would not steal, even though undeterred by fear of punishment. Hence the laws against theft are well enforced. In the case of a prohibitory law, on the other hand, it may be that only a bare majority believe the law right, while all the rest are interested in its non-enforcement. Thus it cannot be nearly so effective. If a thief escapes, there is general regret; if a saloon keeper is punished, he receives considerable sympathy. The popular sense of honor condemns the employment of means to detect the law-breaking liquor seller that are expected as a matter of course in the case of thieves. People who are ashamed of themselves for the feeling still think that it is mean to be informers. So long as juries are composed of sympathetic human beings, they will be loath to condemn men for an act which, though a crime by the local majority vote, is not a sin by general consent. These difficulties need to be borne in mind alike by those who propose restrictive sumptuary laws, and by those who are ever ready to decry them because they are less perfectly enforced than other laws. In the nature of the case that is to be expected. The only question is. Does a given law operate as a check on the evil at which it is aimed ? or, more precisely, Does it do more good than harm ? For such a law may do harm in two ways : In the first place, the knowledge that any law cannot be, or is not, enforced creates disrespect of government and encourages general lawlessness. Secondly, a law may sometimes be enforced, and yet be unjust in principle, or lead to abuse in its operation. Advocates of temperance legislation, then, should consider these two questions : (1.) Is a proposed law practical ? (2.) Is it just ? They may be sure that injustice in a law will sooner or later awaken an opposition to it which will render it unpractical, also.

Such a state of affairs would do the cause of morality a double injury, giving an example of unenforced law and creating a sense of injured rights.

The question, what it is right for us to do in the effort to protect ourselves from the evils of intemperance, is one on which agreement seems to be impossible. What is practical we are slowly learning by experience. There can be no doubt, however, that the community has the right to protect itself from detriment, not only by restraining offenders, but also, if necessary, by restricting the personal liberty of the innocent. While the right to take land by eminent domain, and even to draft men for military service, is undisputed, it is idle to question the right of the State to forbid its members the use of alcoholic beverages, provided the public good requires. But does the public good require ? It is necessary to prove not only that good is accomplished by a prohibitory law, but also that the same good cannot be secured by less extreme means. It is obviously our duty to make every effort to gain our object without interfering with the rights or the convenience of any one. It is as obviously the duty of patriotic citizens to submit without complaint to inconvenience, or even to considerable deprivation, if a great public good can be obtained in no other way. The burden of proof, however, rests on those who propose interference with individual freedom. Again, effectively as a prohibitory law may be enforced, it must still be regarded as an imperfect makeshift; the best available, but yet an oppressive means of reaching the end desired, which is not universal abstinence, but temperance. A community passing a prohibitory law. like a man signing the pledge, gives at once an exhibition of moral strength and a confession of moral weakness. Regret, that such restraint is necessary must temper the satisfaction even of its voluntary adoption. A prohibitory law is not to be compared with ordinary criminal laws which forbid and punish wrongdoing. Nor is it fair to say that the difference is an advantage, since prohibition not only prevents wrong-doing, but removes the occasion for it. The occasion, it is true, is removed, but only by interference with the liberty of the innocent. It is rather as if a law were to forbid any one to pass through certain dangerous streets, on the ground that the police could not furnish protection there. The ideal law will be one which restrains abuses without restraining liberty.

A prohibitory law, then, however successful, must always be apologized for as an imperfect, temporary measure, little hope though there may be of finding anything better. How is it with those other restraints on which dependence is placed where public sentiment will not permit the passage of prohibition, such as high license, early closing, or civil damage laws ? Some of these, also, may be found to be more or less unfair in principle, but as a rule they have the advantage that they aim directly at the evil, dealing with the abuse, not the use, of intoxicants. In this they keep within their proper limits, though as compared with prohibitory laws they have the fault of not dealing completely with their subject. Still, a number of vigorous blows directed at weak points of the adversary may tell better in the end than one mighty effort at his head, which overreaches and spends its strength in part on the unoffending bystanders.

The most popular cry at present with those who hesitate to take the full step of prohibition is high license. There is, of course, no essential difference in principle between high and low license. Each system recognizes the liquor traffic as an evil to be checked. The license fee is supposed to impose on the dealer an additional motive for obeying the law, lest, if he break it, he lose not only the right to carry on his business, but also the sum paid for the privilege. The license fee is also properly regarded as the damages, inadequate though they be, which the community is able to assess on the liquor dealer for the injury the presence of his kind inflicts upon society. There is no possible reason, other than the quibble based on the dictionary definition of the word, for regarding a license law as a sanction of liquor selling. It is a restriction, not a permission. It reduces the number of those who may sell from everybody to one in a hundred or more. Conscientious opponents of license should remember that words are intended to express ideas, not to confound them. The license law simply declares the measure of restraint and penalty which the community feels itself able to impose on an evil which it would gladly extirpate if it could ; and no community has a right to consider its moral duty performed in sitting helpless by and forbidding an evil which it has not the power to prevent, but which it might modify.

The high-license system, however, as usually administered, is open to a charge of unfairness, and this is followed close by the more serious indictment that it becomes a power for political corruption. The in justice arises from the necessary powers of discrimination vested in those who grant the licenses. In fact, it is inherent in the system itself, since the exaction of a fee must operate in favor of the rich as against the poor applicant. The higher the charge, the greater is this injustice; while at the same time, especially where a legal limit is fixed for the number of licenses to be granted, the opportunities for favoritism increase. Perhaps we need not stop to spend much pity on the ill-treated liquor sellers, but the power for corruption placed in the hands of the license commissioners is a serious matter. Not only can they sell their favors to the highest briber, but they can hold every liquor dealer bound to serve them politically by the fear of losing his license. Thus we have at hand all the material for a ring made up of liquor sellers and local government officials. It must, at the very best, be impossible for the most upright commissioners to keep themselves free from suspicion of partiality. The remedy for this abuse, as has been suggested, is to fix a high fee, and then give the right to sell to all who pay it; or, going still further, to limit the number of licenses according to population, and sell them to the highest bidders, insisting in any case on a certain minimum fee. It seems as if the latter system ought to do away with the abuse of favoritism in granting the licenses, without sacrificing any point already gained by other means. To limit the number of licenses to one in so many hundred, and at the same time to allow the commissioners discretion in granting them, as is the custom in some places, must tend to create a plutocracy of liquor sellers with the license commissioners at the head.

License laws are accompanied by various restrictive laws. Some of these do much good, and some do no good at all. One of the most general is that requiring Sunday closing. This is probably enforced in different places with about the same rigor or laxity as similar laws against other forms of business. It has the justification of other Sunday laws as a measure to protect workers in the enjoyment of a regular day of rest. It is further a wise means of relieving workingmen from the temptation to waste their money for liquor at a time when they have the most money to spend and the most leisure for spending it. Laws requiring early evening closing, especially on Saturdays, and holiday closing have the same justification, beside the fact that experience proves their value as a preventive of disorder.

An effective means of limiting the saloon nuisance is found to be shutting it out of certain districts in cities and requiring it to keep its distance from churches and schoolhouses, as well as giving adjacent property holders the right to forbid its presence. When, as in Philadelphia, this is supplemented by the requirement of heavy bonds and of neighboring property holders as bondsmen, a great deal is accomplished. By this last requirement one step further is taken, and the principle is established that no saloon shall be allowed in a locality where it cannot show a decided demand for its presence. The charge is made that all these restrictions only serve to give the saloon once opened in compliance with them an added appearance of respectability. It is hard, however, to believe, in view of present public opinion, that this bane of civilization can ever masquerade in the guise of respectability again. Suck laws as these, restricting the time and place of sale, and the law forbidding sales to minors ought to be capable of enforcement in any community that has energy to interest itself at all in the matter. Prohibition of sales to habitual drunkards could hardly he effective outside of villages and small towns. Various minor measures, like the screen law and anti-treating laws, prove of little practical effect; and that most righteous enactment of all. the civil damage law, has accomplished far less than was hoped.

Another blow at the evil, which is beginning to be advocated, is the prohibition of the open saloon, where intoxicants are sold to be drunk on the premises. It seems as it such a law could be enforced where absolute prohibition would fail, and if it were enforced much good would certainly result. The associations which lead to immoderate drinking would largely be removed, while at the same time personal liberty would not be seriously curtailed. It is objected that by closing the saloons we should take away the only attractive place many men have in which to pass their evenings; but by saving the money spent in saloons they could make their homes attractive. To remove the attractiveness of drinking is an end much to be desired ; and this plan of prohibiting the saloon, as distinguished from the liquor store, deserves more attention than it has yet received.

The question of our moral right to interfere with others arises not only in considering what laws shall be passed, but also in considering who shall pass them. Shall it be each town, county, or State for itself, or the nation for the whole ? Is the nation at large so vitally concerned in a State’s practice in this matter that it has a right to lay down the law in opposition to the will of the State itself ? Has a State the same justification of the general welfare to warrant its prescribing for a town within its limits ? This certainly may be said : The authority that makes the law must be prepared to assume the responsibility of enforcing it where it is unpopular. The State has no right to pass a law, and then leave the responsibility for its enforcement on a city that is opposed to it. The nation has no right to pass a prohibitory constitutional amendment, unless it is ready to enforce its decree in every State. To secure such an amendment, it is therefore necessary, not only that three fourths of the States should wish prohibition for themselves, but also that they should covet the task of enforcing it on the remaining fourth. Under these circumstances, it seems hardly likely that prohibition can be adopted into the national Constitution until all the States individually come to approve it, and then it will be no longer needed. National prohibition is a grand idea in the abstract, but all save its most violent advocates must pause at the thought of what the attempt to enforce it implies. This is nothing less than a national police force, comparable in numbers to a standing army of Europe, distributed in every city and village in our land, and absolutely irresponsible to the local communities under its supervision. For if, while nominally United States officials, these police were responsible to local bodies, prohibition would at once degenerate from a national to a local institution. Such a centralization of power as the above would be practically a revolution in our form of government, and would be utterly intolerable to the American people. At least it would appear to be more practical for prohibitionists to wait, before organizing a national party, until they have secured prohibition in something like three fourths of the several States. The present constitutional powers of the general government in this matter are inconsiderable, and will soon be appreciably diminished by the admission of Territories to the Union. They certainly are not such as to warrant the attempt to place temperance above other public questions as a national issue.

State prohibition is open, though in much less degree, to the same objection as national; namely, that the State in general has no such concern in the affairs of its individual towns as to make interference tolerable. That the State is intimately interested in the welfare of its parts must, however, be admitted, and it then becomes an open question, with room for fair difference of opinion, how much interference is justifiable. Against state prohibition the devotees of local self-government set local option. Yet the plea of preserving local rights must be a lame excuse for this system, if it cannot also be shown that the practical results obtained are better than under state prohibition. The claim of those who favor local option is that experience yields the result which common sense would expect; that local approval is essential for the enforcement of any law, especially a law which interferes with the general practice of a large portion of the community. If the towns are left to themselves, those that oppose the law will pay little attention to it; while, even if the State attempts its enforcement, evidence and conviction are almost impossible to obtain in opposition to popular sentiment. The assertion is frequently made that prohibition in a given State is well enforced in the great majority of towns, or that the evils of intemperance are much less under prohibition than under license. The trouble with these statements is that they have no bearing on the question in hand. That question is not whether state prohibition is better than state license, but whether state prohibition is better than local option. It may be that adequate statistics are not yet available to settle this point, but the burden of proof properly rests on the prohibitionists, and they cannot meet it by wearisome repetition of the fact that general prohibition works better than general license. There is great, and it would seem needless, confusion on this matter. The contention of local option is simply this : that the only places in which, under a state law, prohibition is enforced are the identical places which, if left to their own choice, would voluntarily adopt prohibition; while in no town which would not of itself adopt the system will the State be able to enforce it. There may be found exceptional towns in both classes, but the general rule will still hold true. In the face of facts it is idle to talk of sworn duties of public officers. The mayor of a New York city, who declared that he saw " no harm in a little quiet violation of the law, was only the spokesman of a class ; and it is after all unfair to blame public officers for their lethargy, when they know that public opinion will not sustain them in vigorous action.

Under local option, then, we have prohibition in all those places where we can hope to have it under a state law, while in the remaining places we still have the benefit of the usual restrictive laws, which are of necessity all swept away by the enactment of general prohibition. The fact that non-enforcement of prohibition means the removal of all restraints usually imposed by law on the liquor business is too often forgotten. The law cannot place minor restraints on a traffic the existence of which its own self-respect forbids it to recognize. The business for the state prohibitionists, if they would prove their case against local option, is to examine the last recorded votes on the question of prohibition in the several towns of prohibition States, mark those that voted against it, and then try honestly to find out in what proportion of those towns it is a success. It is on the record of those towns, and of those only, that the merits of the question between local option and prohibition can be decided. Where local option, but not prohibition, has been tried, significant facts also appear. For instance, in the past few years several cities in Massachusetts have changed back from prohibition to license, finding that they lacked the energy to enforce the stricter system, in spite of a small majority apparently in its favor. On the other hand, the city of Cambridge furnishes a striking proof of what a small majority can do when willing to work for prohibition as well as to vote for it. Such instances, however, count nothing in favor of a state law, while every case where a majority fails to maintain the law it has itself passed tells with double effect against such a law.

It would indicate a deplorable and un-American sameness of character if we all agreed on such a subject as this. Neither is it to be expected that similar measures will be advisable in all cases. The most that we can hope is to find our common principles, and to act unitedly and aggressively so far as we can ; ready to make sacrifices in minor matters of method for the sake of agreement, and not standing stubbornly for abstract principles at the expense of practical results. Extremists must remember, too, that while the more moderate should be ready to advance halfway to meet them in matters of detail, they cannot be expected to yield a single point of principle for the sake of harmony. It will therefore often be necessary for those who would prefer to go the furthest to make the greater concession. Those who believe that a given measure is best can ask no compromise from those who believe that it is wrong. Moderate measures are at least right, even though they be not the best. It is true there are those who declare uncompromisingly that nothing but prohibition is right, and who carry their belief to a logical conclusion. Certain of these in the West not long since complained that in a local election they were only offered the choice between high and low license, and so, as they could not conscientiously vote for either, were practically disfranchised. Evidently, it is useless to count on the coöperation of so sensitive consciences in the effort to secure practical temperance legislation. Still, there is reason to believe that they are not very numerous. Probably they were all included in the prohibition party in 1884, when that party’s total vote was only about, one hundred and fifty thousand, and included in that number thousands of dissatisfied Republicans.

The question still remains of the relation of temperance workers to political parties. The treatment of the liquor business is the most important public question in most of the States, and there is no reason why parties within a State should not be formed on that issue, except the all-important fact, that the people seem determined to keep up their national political divisions in local affairs also. For this practical reason, it seems as though the friends of temperance could gain more if they would learn a lesson from the saloon interests, and, instead of declaring that a third party must be formed because both the old parties are under the control of the saloon, try to wrest them out of that control. If the advocates of temperance legislation were to demand recognition of both parties as aggressively as do the liquor men, were they to stand by their friends and mark their enemies, they ought to prove themselves strong enough to drive the saloon influence out of politics. Both parties might be compelled to support restrictive temperance legislation. The Republican party, with its centralizing tendency, ought more naturally to be the home of the state prohibitionists, while the Democratic party should maintain the rights of smaller communities and of individual citizens. The Prohibition party cannot fairly claim to be the exclusive representative of a moral cause. The moral cause is the promotion of temperance, which all favor. The means believed to be best may be prohibition, high license, or low license. The most drastic measures are not necessarily the most moral, though they do, unfortunately, often force that plea on the conscience over the common sense.

Out of all the conflict of views and methods we may be sure of so much as this : until three fourths of the States have pronounced in favor of prohibition, the temperance question, though of national importance, can have no logical place in national politics. The treatment of the liquor traffic is, then, a question for each State by itself. The ordinary course, both of justice and expediency, is for the State to pass such restricting laws as deal directly with the evil without. trenching on personal liberty, and to leave to its counties and cities the decision, each for itself, of the question of absolute prohibition; remembering, however, that the larger the majority of towns voting prohibition, the less questionable becomes the right of the State to seek protection against the contagion of local plague spots by general legislation for the whole body. On these lines, by every means which ingenuity can devise and experience proves can be enforced, to suppress the evils of the liquor traffic, and in particular the open saloon, should be our aim. Neither should we diminish respect for law by placing, or leaving, on the statutebooks laws which experience shows cannot be enforced. Further, let no state law ever be so framed as to forbid a smaller community within the State to be as stringent as it please within its own limits. Again, we must not forget that the attempt to create moral sentiment by law reverses the true order.

Law must follow and enforce the decree of moral sentiment already created by education. Pushed in advance, it becomes inoperative and ridiculous, discouraging instead of stimulating. For a guiding principle we must recognize personal liberty, while insisting on the common weal. Finally, let us be coöperative and practical, and not " sequester out of the world into Atlantick and Eutopian polities, . . . but ordain wisely as in this world of evill, in the midd’st, whereof God hath plac’t us unavoidably.”

Charles Worcester Clark.