The Pamphlet Collection of Sir Robert Stout: Volume 36
Right and Necessity of Legislation
Right and Necessity of Legislation.
The right of Government to legislate upon the subject of intemperance has been strongly denied, but the absolute necessity of prohibition or regulation of the traffic in intoxicating drinks has been demonstrated in every civilized country where their use has unfortunately become prevalent, and the statute-books of England and America, for two centuries at least, bear constant witness to the exercise of that power. The question has been raised and settled in the Supreme Court of the United States and by the highest tribunals in almost every State of the Union, if not in all. It is too late to deny the power, the right, and the necessity of such legislation. It is only a question of the jurisdiction by which it shall be enacted and the extent to which it shall be carried.
In this connection I wish to call attention to a fallacy which exists in the minds of many. It is assumed by the advocates in the traffic of intoxicating liquors that there is a distinction between the right of Government to enact legislation totally and partially prohibitory. Government, it is said, may license and regulate, but may not prohibit. But there is no such distinction in reason at all. The power to partially prohibit by license—which is prohibition so far as it restricts at all—is the same power and stands upon the same ground; that is, the obligation to promote the general welfare—as that to prohibit absolutely. A license to one man to make or sell ardent spirits is an absolute prohibition to all the rest of the community to do so at all. The advocates of the license and regulation of the traffic have no logical grounds upon which to object to absolute prohibition, if necessity requires. It is only a question of degree. The universal sense of mankind has passed that point where it is necessary to demonstrate the right to prohibit absolutely and totally. There is in fact no difference between license and prohibition as a principle. Prohibition is never page 23 held to extend beyond those uses which are demonstrably injurious to society. For all necessary and beneficial purposes prohibitory laws permit or license the traffic. I think this view of the subject important and a complete reply to those who claim that the evil should be licensed and regulated, at the same time that they hold the total prohibition to be a violation of inalienable right and the enactment of a sumptuary law. The one is as much a sumptuary law and a violation of inalienable right as the other, and no more so. If this is true, and I am not able to see wherein it is false, there is an end of the argument between the advocates of license and prohibition as to the right of such legislation, for they stand upon common ground, and there is no logical position for those who controvert the justice of prohibitory laws, so called, but that of those who advocate the unrestricted right to manufacture and sell intoxicating liquors to everybody for all purposes; and that ground has not been held by any court for generations to my knowledge.
Alcohol has its uses. It is a necessity in the arts. It is invaluable for many medicinal purposes, and as such is entitled to protection as property. But on the other hand it is armed with fatal capacity to destroy. It is a Pandora's box of evils. In its peculiarly fatal form, that of distillation, which is a concentrated death, it was unknown for fifty-five hundred years of the world's history, and mankind were the better for their ignorance. The fruit of this tree of knowledge has been death. During the last three centuries what is known as ardent spirits with us, and the immense and dreadful curses which grow out of their use, have gradually arisen. They have the power of perverting the natural instincts and tastes of both body and mind, and to recreate man into the slave of perverted appetites, having insatiable, consuming, uncontrollable, devilish power. The image of God becomes dangerous to society as well as to himself, whether as a maniac or as a criminal, and it is this consequence of the use of intoxicating liquors which the laws have constantly, but imperfectly, undertaken to control for many years; nothing more.
This amendment proposes to extend over the national domain the protection of a constitutional inhibition of the destructive tendencies of liquors when made and used for purposes which have been proved to be detrimental to society, and which many of the States of the Union have endeavored vainly to restrict and destroy.
Nothing but a general law can be efficient. That has been demonstrated by experience. While one State prohibits, another manufactures and encourages. The appetite already exists. It increases and even becomes hereditary. More than one hundred and sixty thousand saloons and tippling-places educate the children of America in habits of intoxication, and the appetite will crush the imaginary lines which State legislation erects against the introduction of this evil merchandise, even as the billows of the lake which burneth with fire and brimstone might be supposed to bury and consume the paper on which that legislation is written. The manufacture and the appetite act and react upon each other. The demand creates the supply, and constantly cries out, "Give! Give!" The supply or manufacture is thus stimulated and perpetuated. It will always continue unless stopped by the union of persuasion and compulsion, because of its lucrative page 24 nature, and because the appetite for strong drink when once established lives with an infernal immortality through successive generations of men. Thus it is that the necessity of legal enactment is apparent. True, that behind legal enactments, as in all other cases where public evils and crimes are prohibited by law, must be public opinion, which is the basis of all law in a free country where the people rule, and public opinion is the creature of experience, argument, discussion, and personal appeal—in short, of "moral suasion," as these agencies are called in their application to the subject of intemperate vice in the use of spirituous liquors. "Moral suasion" must precede the law, and accompany and assist in its enforcement. They are allies. The one grows out of the other just as the law against theft grows out of the universal sentiment of mankind that theft is wrong and a public evil which must be prevented by the forces of society.
Laws to protect society against intoxication inevitably grow out of moral suasion, if there is enough of it to arouse the general conscience and the intelligent apprehension of the people to the enormous losses and wrongs inflicted by alcohol upon society at large. Thus it is that the call for more of moral suasion and less of law is a contradiction of terms. These forces are in harmony like a father and son in a partnership; the law steps in and enlarges and perpetuates the business which moral suasion has established after years of indefatigable industry upon the platform, through the press, and by private solicitation and appeal. And for any person to cry out against a law against the use of intoxicating liquors in society which can never have been enacted at all but in consequence of moral suasion, and say that it injures the cause because you can not compel men to do right against their will, is to say that all crime and every public evil shall go free of the law; not only that, but that society shall abandon all conservative and preventive means for the protection of those who come after us; that not only shall the law abandon the present, but the rising generation, and, in fact, consistency will require that in the end moral suasion itself must be abandoned, since its inevitable result is a formal embodiment of its teachings in general law, as soon as it has produced a strong public sentiment upon which law can rest—and which will enforce the law.
I have already asked attention to the facts which as I think demonstrate that the unrestricted use and effect of distilled spirits constitute public evils of such a nature as to not only justify, but compel the interposition of the law; just now I wish to confine attention to the necessity of