03.06. The Right to Prohibit.

The Right to Prohibit.

IT is said that a man has a right to eat and drink what he pleases; that a prohibitory liquor law is a sumptuary law, and necessarily contravenes natural right.

Sumptuary is from the Latin sumptus, which means expense, cost. Webster says: "Relating to expense; regulating expense or expenditure. Sumptuary laws or regulations, such as restrain or limit the expense of citizens, in apparel, food, furniture, or the like."

Where, then, are the sumptuary features in a prohibitory liquor law? Does it make any attempt to regulate the expenditures in house-keeping? It does not even say what a man shall eat, what he shall wear, nor does it contain any features of sumptuary regulations. It simply refuses the priv­ilege to men to sell that which will impoverish and poison, and, in almost every sense, ruin all who shall be deceived into its use.

They sometimes state their position as follows:

"A MAN HAS THE RIGHT TO DO WITH HIS OWN AS HE PLEASES." This statement would be true with the following added: ONLY WHEN HE DOES NOT INJURE OTHERS THEREBY.

It is sometimes argued that a man has a right to do with his own as he pleases, and therefore men and laws have no right to interfere with his busi­ness. If he chooses to sell whisky, then it is his right to do so, since it is his property. But if that argument is good, then the license system is wrong, since it may debar some from this inalienable right, they not being able to pay the requisite amount. But it is not true, in the absolute, that a man may do as he pleases with his own; since, such a privilege granted to the unprincipled, would work the insecurity of the person or property of another. By a wrong or vicious use of his own, a man might do violence to other men, which he has no natural--and should have no legal--right to do. Hence, a man may not burn down his own house, since, if he does not endanger the houses of other men, or destroy the life of someone within, yet he destroys the property of the/ commonwealth, and, by so much, injures the community as he burns up its capital. A man may not ignite the prairie grass on his own land, when, by so doing, he renders the property of another unsafe. The land being his own makes no difference in the eyes of law and justice. If a man should start a glue manufactory in the heart of our city, though his work would be a profitable one in many respects, yet its fumes would create an unhealthy and offensive atmos­phere. It would be dispensed with, and no claims of a right to do as he pleases with his own would protect him in the eyes of a refined and sensible community. To keep a hotel is right, to keep hogs is well enough, to give them the offal [scraps, garbage] of the house is judicious and economical; but where swine and slops become offensive to the health and happiness of the people, neither the city fathers nor the citizens listen to any claims of individual rights, but demand that the nuisance shall be abated. A man might buy lots in this city and proceed to construct a powder magazine thereon, under the pretense of a right to do as he pleases with his own. But the people would be indignant at the idea. Nor would he be permitted to continue in his business. This plea, then, must be so circum­scribed that when a man does as he pleases with his own, he will not please to do that which will injure other persons.

After all that has been said on the subject of a man’s right to eat and drink what he pleases, the idea is not true, unless properly limited.

Man has some things in common with the ani­mal creation; such as flesh, blood, bones, instinct, and intuition. He has also other mental qualities not possessed by animals in general. Those declare that he is an animal, while these affirm his superi­ority over all other earthly existences. When man gratifies his appetite, or his lust, he yields to the demands of his inferior nature. The instinct of animals is their guard against the violation of law. But man has been left without such protection; for his superior powers of thought and reason must be his guide. The demands of his lower, or animal nature, must be held in abeyance to his superior intellectual endowment. His desire to accumulate property is a much higher aspiration than the desire to pamper and pet, and become the slave of his appetite; for it stands in the list of those qualities that belong to his higher nature. Can we not argue, then, as it is man’s nature to accumulate property, that he can therefore do so in that way that seems good to him? But the law and the common sense of all men say, No! If a man shall undertake to enhance the value of his property to the injury of his neighbor, the whole civilized world stands ready with a veto. Our law is supposed to have its foundation in justice when it refuses one man the privilege of taking some­thing for nothing. Indeed this principle of justice underlies all the enactments of our law with refer­ence to theft and fraud. This may be fixed upon, then, as an axiom: A man has the natural and legal right to increase his property in any way that he pleases, provided that he shall not interfere to the injury of the rights, person, or property of anyone else. But if he may not accumulate property, regardless of the consequences to anyone but himself, and his desire to do so is a higher law than that of mere appetite, it is senseless to argue that he may appease his appetite in any way he pleases, without regard to the interests of other people. The question, then, comes to this: Can the eat­ing and drinking of what one pleases interfere with the natural rights of others? If we answer in the affirmative, then the boasted position of liquor-dealers is gone.

If a man eats or drinks that which destroys his life, health, or his usefulness, he thereby injures, to some extent, every other man. But especially is his immediate community poorer in proportion to the amount of capital thus withdrawn from its resources. But when we come to reckon the evils of whisky drinking, they are so numerous, and of such fearful magnitude, that it is an absolute strain upon our charity to regard any man as both sane and honest who will contend for a minute that any man has any natural right to make a brute of him­self in that way, It is now commonly known that to the account of intoxicating drinks is charged nine-tenths of all the crimes brought into our courts. Can any man in his senses believe that it is the right of any man to drink that which will cause him to commit crime? Like all wrongs, these things come by degrees. The man first drinks occasionally with a friend, then by himself; then he neglects business to loaf around haunts of vice; his family is impoverished; he becomes reckless, and, under the influence of the "narcotico acrid poison," he commits murder or theft! Now, it may be difficult to determine the exact time of his responsibility, but none will fail to charge up the crime, along with his neglect of family and business, to the drink that has at last brought him to ruin. Hence a man has no more right to drink that which will cause him to commit a crime than to commit the crime itself. Again: it is certain that a man has neither the right to drink, nor the right to sell intoxicating beverages; for these are the acknowledged causes of nine-tenths of all the crime of the country today.

I clip the following article from the National Prohibitionist for its good sense and correct logic:

"QUARANTINE. —We are now having a very striking example of the power of law to protect the people.

"Persons who have committed no crime, have broken no law, have injured no one, are taken off railroad trains and steamboats, deprived of their liberty, and held in durance on a mere suspicion, only that they have been exposed to an infectious disease; and while few people die, as compared with other and worse evils, forty millions of people in this free country submit to this without protest, without murmur.

"Whole sections of the country are now cut off from intercourse with other sections, commerce is paralyzed, business is stopped, mails are not delivered, cities are patrolled, and, if a stranger is found, he is taken out and sent adrift. In fact, one of the agents of the firm of Claflin, Allen & Co., of St. Louis, reports that he was stopped near Cairo, Ill., held for a time, and then taken away from his route of travel, miles and miles, and left on a lone, desolate shore, uninhabited, with­out food or protection.

"This gentleman was pursuing his legitimate busi­ness and calling in a legitimate way, molesting no one; but it was rumored that he might have been exposed to a contagious disease, and the law steps in and says: ’To prevent suffering you must submit, not only to be stopped and turned back, and put off alone, but you must remain there for a certain length of time, for the good of the people.’ That is, no matter how pressing your business may be, how important that you reach your home; wife, children or friends may be sick, dying: all that is nothing to the protection of the people. And so ’quarantine is enforced’ at Cairo, at New Orleans, at Jackson, Miss., at Grenada, Miss., at Memphis, and at various other points; and our mer­chants and manufacturers, and travelers, and business men of all classes, not only submit, but they send money—thousands of dollars to those who are afflicted in these cities.

"This action is, in all respects, worthy all praise. But the poison and infection of yellow fever—the death and destruction by this scourge —is not to be compared to the poison, and death, and destruction, resulting from the legalized liquor traffic!

"A person dying of yellow fever dies honorably, is mourned for, lamented, and his death can be spoken of with affectionate regard in all after time.

"Is it so with the drunkard?

"What shames, and crimes, and debauchery—what reproach and beastliness dog his steps, from his first loss of control and respect, on and on, down the long, shameful career, until the rotten hulk of a diseased body and a wrecked soul is covered deep with such an infamy as forbids even mention of the name or circum­stance of death, except with shame and regret

"We ’quarantine,’ and submit to such restraints as would justify armed resistance to this lesser, and tem­porary, and local danger. [Mean]while the horrid evils, the crimes, and murders, and miseries, and poverty, and disease, and death, from the legalized liquor traffic, this greater evil, continuous and as wide-spread as the con­tinent, grows apace, numbering its victims by tens and hundreds, where the yellow fever strikes one. If we have a right to quarantine for a fever, we have an equal right to ’quarantine’ to prevent the limitless crime, and curse, and poverty, and death, from drunk­enness! Have we not?

"If you admit we have, then you are a Prohibitionist." Our railroad managers are finding that they must prohibit the use of intoxicating liquors. In the last report of the Railroad Commissioner for Wis­consin, we find that this question was asked all of the railway companies operating roads in that State: Has your company any rules governing con­ductors, engineers, and trainmen, concerning the use of intoxicating liquors?" The answer of the Chicago and Northwestern officials was as follows:

"The rules of this company absolutely prohibit the use of intoxicating liquors by the conductors, engineers, and trainmen; and they are strictly enforced." The Chicago, Milwaukee and St. Paul Company made this answer:

"It is a rule of the road not to employ or retain in service men who make an immoderate use of intoxicating liquors, and this rule is enforced."

"Perfect sobriety required, and no liquors al­lowed on the property," is the answer given by the Chippewa Falls and Western.

"Employees not allowed to use intoxicating liquors," says the Green Bay and Minnesota Company.

Milwaukee, Lake Shore and Western:

"The use of intoxicating liquors on or about the premises of the company is strictly prohibited, and any em­ployee appearing on duty in a state of intoxication is forthwith discharged. Those who totally abstain will receive the preference in promotion and employment. These rules are strictly enforced."

Western Union:

"Our rules provide for the dis­charge of any employee who uses liquor to excess."

West Wisconsin, now Chicago, St. Paul and Minneapolis:

"The use of intoxicating liquors in­volves instant dismissal."

Wisconsin Central:

"The use of intoxicating liquors as a beverage will be considered just cause for dismissal from the service of the company."

Wisconsin Valley:

"Total abstinence."

Many more of our Western Roads have, and are adopting similar regulations. They find that they must do this or lose the patronage of the traveling public. This is prohibition enforced by companies; and yet no one doubts their right in the matter. IS PROHIBITION CONSTITUTIONAL?

Some years ago it was commonly said, in oppo­sition to prohibition, that it was unconstitutional. In so grave an assembly as the Nebraska Legisla­ture, only a few years ago, it was regarded by leading men as unconstitutional; and, though most peo­ple at the present time know better, yet it may not be wholly out of place, even in these chapters, to give a few decisions on this subject. For the ben­efit of such as may have an interest in such things, I will quote from the fifth volume of Howard’s Reports of the Supreme Court of the United States.

Justice Carton said:

"If the State has power of restraint by license to any extent, she may go to the length of prohibiting sales altogether." [Page 61 I.] Hon. Justice Daniels said of imports, when cleared, of all duty and subject to the owner:

"They are like all other property of the citizens, and should be equally the subjects of domestic regulation and taxation, whether owned by an im­porter or vender." [Page 614.] And in reply to the argument that the importer purchases the right to sell when he pays duties to the Government, the Judge says:

"No such right as the one supposed is purchased by the importer. He has not purchased, and cannot purchase from the Government, that which could not insure to him a sale, independent of the law and Policy of the States." [Page 617.] Hon. Justice Grier says:

"It is not necessary to array the appalling statistics of misery, pauperism, and crime, which have their or­igin in the use and abuse of ardent spirits. The policy power, which is exclusively in the State, is competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect that pur­pose are within the scope of that authority; and if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be a gainer a thousand-fold in the health, wealth, and hap­piness of the people." [Page 632.] Does someone say that the Hon. Justice was a little prejudiced in favor of the temperance cause? I have only to answer that it does not appear in the decision. He has only said what his sound judgment and thorough acquaintance with law de­manded of him. Hon. Justice McLean has also rendered several decisions. Among the many good things that he has said, I quote the following:

"A license to sell is a matter of policy and rev­enue within the power of the State." [Page 589.] "If the foreign article be injurious to the health and morals of the community, a State may prohibit the sale of it." [Page 565.] Again he says: "No one can claim a license to retail spirits as a matter of right." [Page 597.] Mr. Justice Woodbury said:

"After articles have come within the territorial limits of States, whether on land or water, the destruction itself of what constitutes disease and death, and the longer continuance of such articles within their limits, or the terms and conditions of their continuance, when conflicting with their legitimate police, or with their power over internal commerce, or with their right of taxation over all persons and property within their juris­diction, seems one of the first principles of State sover­eignty, and indispensable to public safety." [Page 63o.] Chief Justice Taney said:

"If any State deems the retail and internal traffic of ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating or restraining the traffic, or from prohibiting it altogether, if it thinks proper." [Page 577.]

Let these suffice upon this subject. When any man shall say that a State has not the constitu­tional right to prohibit the sale of alcohol within the limits of its jurisdiction, he will array himself in opposition to the best legal mind of the nation.

Many have argued that a government license to sell whisky, etc., will override the prohibition of the State. But this is plainly untrue, according to the decisions which we have already quoted, and with which all the great interpreters of law have ever decided. "Let a man," says Black­stone, "be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself (as drunkenness or the like), they then be­come, by the bad example they set, of pernicious effect to society; and therefore it is then the busi­ness of human laws to correct them."—I. 124. On these principles, our own commentator on American law says:

"The Government may, by general regulations, in­terdict such uses of property as would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaugh­ter-houses, operations offensive to the senses, the de­posit of powder, the building with combustible materials, and, the, burial of the dead, may be interdicted by law, in the midst of dense masses of population, on the gen­eral and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interest must be made subservient to the general interest of the community." Kent, 340.

Now we have convicted the business of selling rum of being injurious to health, destructive of wealth, opposed to education, in antagonism to the religion of Christ, and being a moral nuisance. It is the direct cause of nine-tenths of all the crimes in the land, and the fruitful source of much of the misery and most of the degradation and depravity now known to the world. If there can be found a reason for prohibiting anything known to law, that reason will hold good in legislating against the sale of intoxicating beverages.