The Pamphlet Collection of Sir Robert Stout: Volume 36
Baron Von Humboldt
Baron Von Humboldt
The State may content itself with exercising the most watchful vigilance of every unlawful project and defeating it before it has been put into execution; or, advancing further, it may prohibit actions which are harmless in themselves, but which tempt to the commission of crimes or afford opportunity for resolving upon criminal actions. This latter policy again tends to encroach on the liberty of the citizens; manifests a distrust on the part of the State which not only operates burtfully on the character of the citizens, but goes to defeat the very end in view. All that the State may do without frustrating its own end, and without encroaching on the freedom of its citizens, is therefore restricted to the former course; that is, the strictest surveillance of every transgression of the law, either already committed or only resolved on; and as this can not properly be called preventing the causes of crime, I think I may safely assert that this prevention of criminal actions is wholly foreign to the State's proper sphere of activity.
The essence of all this seems to be in the concluding idea, viz.: that the State can not legislate by imposing burdens or restrictions upon the individual, the object of which is to prevent the causes of crime. Well, supposing this to be so, docs it reach the foundations of legislation restricting the evils resulting from the use of intoxicating liquors? Obviously not, unless those evils are simply causes of crime. But those evils embrace not merely crime against the individual and society at large, but physical degeneration of the individual and of the species, insanity, idiocy, pauperism—every form and degree of misery, taxation, public burdens of every kind, poverty, starvation, accident and frightful casualties, ignorance, and death.
Now many of these effects of the wrongful use of distilled spirits exist independently as distinct and most deplorable public evils, and would do so even though they did not so often culminate in every sort of crime. But this proposition of Humboldt's covers the case of causes of crime alone, and if legislation for the prevention of these evils is not within the power of the State, then I am at loss to see what forms of preventive legislation are possible. The doctrine is universal license and anarchy, if it is to be understood to cover the ground which is claimed for it. It not only abolishes the old truth, which, however homely in its expression, is the basis of the great mass of the laws to which society owes it happiness and all hope of future improvement—that an ounce of prevention is worth a pound of cure. Can not legislate to prevent the causes of crime without violating personal liberty! Then personal liberty, which does not include the right to commit crime, does include the right to cause it to be committed. But the great Humboldt is misquoted, for observe the confusion of thought and the utter nonsense of his language if it is to be construed as covering this case. I revere his intellectual power, but there is only one God, and the man who undertakes to construct a universe or a Kosmos will not always manifest the attributes of the Almighty. He says "that the State is restricted to the strictest surveillance of every transgression of the law, either already committed or only resolved upon." But this is a question of the original enactment—the creation of a law, not of its violation or of its enforcement. Shall there be any law at all upon the subject? What is a crime in the only sense with which we have anything to do? Why, it is the viola- page 39 tion of an existing law; doing what is already forbidden or failing to do that which is enjoined; or, in Mr. Webster's own words: "An omission of a duty which is commanded, or the commission of an act which is forbidden by law." So far as government is concerned there can be no crime, and therefore no causes of crime until there is a law the violation of which is all that constitutes crime.
Now the question between alcohol and its opponent is, whether there shall be any law at all, and the answer to that question depends altogether upon the consequences which the unrestricted use of alcohol exerts upon mankind. Does it or does it not produce such evils in society as to require or justify its restriction by law—the creation of a law—the violation of which will be a crime? The mere fact that a drunken man is more likely to commit murder than a sober man is of course no reason why he should be punished for being drunk, unles there is a law against it. Until there is a law against it, drunkenness is no crime. So, if being drunk, he commits murder, then he is to be punished because he has violated the law against taking life, not because he was drunk. Drunk or sober, then, he is to be punished for his violation of law.
But now in this debate comes this question: Is the fact that drunkenness is a state of mind and body which is so bad and dangerous a thing of itself for members of society to be in, that voluntarily getting into that state should be prohibited, and is the making and selling that stuff which tempts and makes men to get drunk for that very purpose so bad a thing that the manufacture and sale of it should be prohibited by law? And upon that point the facts I have spread out are pertinent. To do that which causes three-fourths of all the crimes known to the law should itself be made a crime. It is bad itself, and should therefore be prohibited by law. It is a question of making a new law, not of enforcing an old one. It is therefore not at all within the reasoning of Von Humboldt, and the citation as an authority falls. New laws must be made according to the times. The duty of government is ever the same: to protect society and promote the general welfare. The special laws of different nations and ages vary according to the forms in which vice presents itself, and the various agencies and forms of destruction with which society is assailed. Alcohol is the parent of nearly all the forms of misery in this age and of three-fourths of the grand aggregate of all the crimes that are known, and surely that which produces all these is a legitimate subject for regulation by law. To say that society shall not control the dram-shops which line our streets is to say that any man has the right to plant Pennsylvania avenue with torpedoes and drape Broadway with old clothes from the pest-houses, because the torpedo and old clothes are property and a legitimate subject of barter and sale; and that because the torpedo and garments have their uses when they preserve a people and promote the general welfare, for that reason they may be used to destroy the nation and people which they were designed to preserve.