A REVIEW DIG LEWIS' OBJECTIONS Prohibitory Liquor Laws, V ON THE GROUND OF THE RESTRICTION OF PERSONAL LIBERTY. BY HENRY NEW COMB. PRICK, 10 crasrrs. HYDE 1'ARK: 'f California I>K I N| KI> AT THE OFFICE OF Tin: NORFOLK rot MY CJA/.KTTK. Regional Facility ' ' 1874. UCSB LIBRARY A REVIEW DIG LEWIS' OBJECTIONS Prohibitory Liquor Laws, ON THE GROUND OF THE RESTRICTION OF PERSONAL LIBERTY. BY HENRY NEWCOMB. PRICK, 1O CJNTS. HYDE PARK: PRINTED AT THE OFFICE OF THE NORFOLK COUNTY GAZETTE, 1874. PREFACE. WHEN leading men differ upon subjects of vital importance to the community, it becomes necessary for the people to investigate for themselves. I have no other excuse to offer for placing the following pages before the public. My object has been not so much to refute the alleged objections against prohibitory liquor laws, as to show the true basis of alco- holic legislation. The views expressed in regard to this may be different from those now held by a majority of the public, but un- less they can be disproved they must be correct. Among such views no doubt is that of irresponsibility in drunkenness under a license law. It is probable a careful reading will afford food for thought for many persons for some time to come. NATURE OF THE QUESTION. The first great mistake of Dio Lewis, and in fact of all who ob- ject to prohibitory liquor laws, is in confounding prohibition with re- striction of personal liberty in regard to the drinking of beverages. Prohibitory liquor laws do not refer to the drinking of intoxicants, but are intended to regulate the selling, simply. If the drinking is affected, it is a secondary result, not the direct object of prohibi- tion. There is a wide distinction between a law which criminates the selling of intoxicating liquor and one which should criminate an individual for drinking a beverage in his own house, at his place of business, or in any other place. This charge against the prohibitory law is a gross assumption, and has no foundation in fact. That question asked by Dio Lewis at Hyde Park, "What, not allow me to buy that which I have a right to drink?" touches the ear with a twang of apparent consistency ; but upon examina- tion we find it to be the very essence of ambiguity. The question is not as to what a person shall or shall not buy for his own use, but as to whether society can justly -prevent the sale of an obnox- ious and injurious liquid which deceives and entraps the ignorant and unwary into a life of vice and crime. In the social econo- my of a well-regulated government there must be harmony between personal rights and the protection of society. Society contracts to protect the individual just to that extent which it deprives him of the prerogative of protecting himself in either person, property, or character. To prevent retaliation society has seen fit to deprive the individual of all prerogatives of protecting himself except in those cases where it is unable to extend the necessary protection. To harmonize this with personal rights society forbids the individ- ual from being in any way molested or injured in person, property, or character by any other individual. To accomplish this, society enacts a prohibitory statute. It is prohibitory, because it forbids under penalty. This prohibitory statute has never yet been per- fected ; it requires constant amendment and addition to counteract the devices of those who seek to defraud or injure other members of society. Here then we come to a point bearing directly upon the subject under consideration, can any class in the community say the criminal statute is complete, and any further additions would be unjust? It is considered that any class of 'the community have a right to do any conceivable thing not prohibted by statute. Against this class of acts individuals would have no protection were they ever so obnoxious or injurious ; it is, therefore, the im- perative duty of society (or the majority) to prevent such acts by criminal statute whenever they conflict with the well-being of any class in the community. If Dio Lewis or any other person relieves society of this obligation, he also relieves it of all obligation to protect him in any other way, and for these reasons : 1st. Every individual in the community has, by virtue of the protection promised by society, surrendered up all right to protect himself (except in case of personal assault). 2d. As this surrender extends to all the peculiar conditions and circumstances of life, the protection must be of equal extent ; oth- erwise, if we say it may not extend thus far, who shall say how far it ought to extend. If society be under no obligations to extend its protection in one instance, where is the obligation to extend it in another in- stance? Must individuals be irreparably injured in person, prop- erty, or character before society moves for their protection ? That would be equal to a memorable instance which occurred under my observation in a southern town : An enraged individual was going about the streets, revolver in hand, hunting a certain person with the avowed intention of shooting him upon sight ; a constable was following him, and when asked why he did not arrest the individual replied, "He has done nothing as yet to be arrested for." But you say society is under obligation to do its utmost to prevent people from being killed. Is it not, then, under equal obligation to pre- vent an individual from being half killed, or a quarter, or an eighth, or any at all ? And does not the same obligation hold good with regard to property and character? If not, where can the limits be fixed ? It is manifestly evident the protection of society must be extended wherever and whenever protection is needed. There are also obligations on the part of individuals as well as of society, and the whole criminal statute is, in one sense, nothing more than society defending itself against a breach of these obli- gations on the part of individuals. Would there be no breach of these individual obligations, there would be no necessity for a penal statute, for in every case there is first a manifest breach of some obligation before the act is made criminal. In this country society is the majority, and government is simply the agent of society. Now society has, by virtue of its existence, certain rights in itself, the principle of which is to act for its own well-being; and the course and constitution of nature is such that society, in acting for its own good, also acts for the good of every individual in the whole community. He who denies this denies first principles, and the only alternative left is to prove that a pro- hibitory liquor law is hostile to the well-being of society. Let it be remembered, however, proof of this does not consist in showing that a part of the community object to the enforcement of such a law, unless those objections show good and sufficient reasons why a correct observance of the law on the part of all the people would, upon the whole, be productive of injury, and nob of benefit. This I apprehend has never yet been done, and, indeed, cannot be, for science as well as experience proves beyond a doubt that alco- hol is injurious to both mind and body. Society, as we have seen, has the prerogative of acting for its own well-being ; to do this it must act for the well-being of the majority of its members.' The interests of a community, however, do not conflict if those inter- ests are based upon principles which accord with the course and constitution of nature ; or, in other words, if they are just ; conse- quently, when the interest of any class in the community conflicts with the well-being of another class, it is sufficient proof that in- terest is contrary to justice and not allowable by society. The limits of the present work will not admit the demonstration of the necessity and justice of a prohibitory liquor law from first principles; suffice it to say that society is divinely commissioned by the Author of Nature to protect the weaknesses of humanity as well as to control the actions of the vicious. At this point there is evidently antagonism of interest between the seller of intoxicants, the drinker, and society ; and yet, between the three, the difficulty must be settled. It is evident the seller has no rights antagonistic to the interest of the buyer ; this princi- ple is recognized in all civil governments by legislative acts against, deception in the various forms of fraud and misrepresentation. In doing this, society does not undertake to say what things an in- dividual shall or shall not buy, nor IB^see that everything is offered for sale which any individual may have a right to use, but to see the buyer is not deceived, first, by the dupilcity of the seller, and second, by the nature of the thing purchased. In regard to the latter it might be claimed that as the individual bought upon his judgment and without constraint, therefore the responsibility rests with him ; yet society considers itself under obligation to ex- tend its protection even thus far, from the fact the individual may be deceived if not injured, and he has no right of himself to re- dress his injury and is powerless to protect, himself against the deceit. This principle we hold to be applicable in all cases where there is good and sufficient evidence of personal injury resulting from the legitimate use of the thing purchased. In this respect alcoholic beverages differ from every other substance known to commerce. The facts presented by observation and coroborated by science proves beyond a doubt that alcohol, in whatever form of beverage it may be concealed, invariably deceive.? the drinker, and drinking is the legitimate use of such beverages. At this point we cometo the tug of war ; it is claimed the legitimate use of intoxicants is limited to a less quantity than will produce any visible intoxica- tion, or at least, this is as near the definition of the idea as we can get, for the fact/ffuch a use of liquor can never he defined. In the first place,, it is an evasion of the point at issue, which is, that the drinker is deceived by the legitimate use of the alcoholic beverage. I do not mean to say he does not experience the sensations of gratification he anticipates, but the deception arises from the reflex influence or effect of the alcohol upon his mind, directly, by its ef- fects upon the substance of the brain, and indirectly, by its effects upon the physical organism, and this even in small quantities. This is the legitimate effect of alchohol whereby the individual is- deprived of the use of his reason in proportion to the quantity drank and the susceptibility of his mental constitution to be af- fected by it. It is beyond the reach of human perception to know to what, extent a certain quantity of alcohol will affect any person who has never been addicted to its use. The physician may know to what extent it will affect the physical organism, but its effects upon the mind he can never calculate. How many wrecks of hu- manity there are whose downward course dates from the physician's prescription for an opiate or a stimulant ; he has calculated its ef- fect upon the body, and in that regard it produces the desired re- sult ; but how little he knew of the life that was to follow from its effect upon the mind. But there are obvious distinctions here ; I do not mean to condemn the efforts made to prolong, life even at the risk of losing all that makes life desirable. I simply bring this in to prove the fact that alcohol affects the mind to a greater degree than its visible effects upon the body seem to indicate, and the re- sults prove both decepiiiUfcand injury. This then we must consider as sufficient ground for interference on the part of society in order that the individual may be protected from injury. As an offset to this we are told an individual has a personal right to injure himself. Very true ; so far as society is concerned, an in- dividual may injure himself by his own free, voluntary act. but the exercise of such a liberty does not release him from his obligations to society ; when, therefore, the individual, by any cause whatever, makes a breach of his obligations to society by committing a crim- inal act, society may institute proceedings to ascertain, upon fact, whether such breach was or was not caused by the free and volun- tary act of the individual. Now where is there any possible proof that any breach of obligation caused by the effects of alcohol upon the mind is the voluntary act of the individual ; and yet a crime has been committed. Who, then, is the criminal? Under the opera- tion of a license law the seller cannot be criminated because society grants him the privilege. Justice says the drinker is not a crimi- nal because he has been deceived and overpowered by alcohol, and through its effects become an involuntary actor not responsible for acts committed while in that condition. 9 It is not the intention of the present paper to advance any views except they be supported by science and provedyto rest upon r the basis of a sound and practical philosophy. I therefore have no hesitation in saying, that to whatever extent society permits or li- censes the sale of alcoholic liquors as a beverage, to that extent it is an equal participant in the crime and guilt of the drinker. Proof of this would be foreign to the present object. I only wish to show that the injury resulting to an individual from the drinking of al- coholic beverages, is not self-inflicted in the ordinary acceptation of a voluntary act ; neither is it accidental in the ordinary accepta- tion of that term ; neither can it be said to result from any inten- tion on the part of the seller or of the drinker. Society is grieved, tormented, and burdened ; the drinker is deceived, injured, and finally ruined, and the seller does not mean any harm ; how, then, are we to clear up the mystery and show where the evil lies ? I have no doubt but that at this point has arisen all the mistakes of alcoholic legislation. There is but one fact bv which we can bring order out of this chaos of contradiction between intention and ef- fects in the selling and drinking of alcoholic beverages. That fact is, alcohol is possessed of a power not to be found in any other substance upon the habitable globe, the power of imparting insan- ity to the human mind. Here, then, we solve the whole mystery. Under a license law society indorses the individual's inclination to use the alcoholic beverage, making that the prerogative of his right to do so, and protects him in the exercise of that right. But alcohol soon takes possession of his inclination and leads him into a course of action of which society his made no calculation f he has been led to make a breach of his most solemn obligations to society. At this point we may consider society as deliberating thus : "What shall be done with this individual? That alcohol has led him into the crime there can be no doubt ; but we have endorsed him in the use of it, and it will not do to give the lie to our own acts, much less to a custom so long established ; besides, if we say he has done wrong in drinking, we shall criminate ourselves and everybody else who may hereafter indulge in this harmless (?) and delightful beverage. Let us make him a criminal because he has let the drink overpower /lint." (drunkenness a crime in itself). But here justice interposes and says, u He could" not prevent th^ effects of the drink after he had taken it ; he should not have had it in the first place." Society "What shall we do, th^en, to clear ourselves and save the liquors? We will do this : we will make believe this man has not drank his liquor for the same purpose as ourselves and other hon- est people ; we will say he intended to bring this evil upon us and himself, because he needn't have drank anything in the first place : nobody compelled him to." (Decisions of English and American courts, under a license law, that the drunkard is Voluntaries l)- mon.) 10 Justice again, (standing in the light of science) "But you can- not prove such an intention. He began his drink for the same purpose and with the same object as all others, and you endorsed him in so doing. You cannot make a thing right and wrong at the same time. You must either condemn the drink and take back your endorsement, or else let him go scott free and bear all the blame yourself." Society (considerably agitated) "But is he not responsible for having drank the liquor to excess?" Justice "He is not responsible in so far as you grant him the privilege ; all responsibility beyond that would depend upon your contract with him (the law). Society "It is impossible for us to specify just the amount he should drink ; we allow him the privilege of drinking all he pleases, so long as he discharges all his obligations." Justice "But do you not see, by the light in which I now stand, that you make a contract with him he cannot possibly fulfil? He agrees not to let alcohol control or overcome him, which your pres- ent knowledge and experience convinces you he is powerless to prevent. The very terms of your contract show that you cannot justly hold him responsible for more than you grant him the privi- lege ; because your privilege includes all he is capable of r< ndering under the circumstances. You grant him the privilege of drinking as long as he is capable of discharging his obligations ; what obli- gations, then, would you consider him ui.der, after he becomes inca- pable of discharging those for which your contract holds him re- sponsible? Can you tell me, under these circumstances, where his guilt originates?" Society (angrily) "We don't believe in metaphysical hair-split- ting. As to the light in which 3'ou now stand, we regard our own inclination as far ahead of it ; rum is better than science. It is expedient for us to make this man a criminal ; we have the power, and it shall be done." (Justice retires amid the groans of the drunkard and the clashing of bottles. The difficulty lies in the fact that society refuses to recognize the antagonism existing between the legitimate effects of alcohol and the intention of the drinker. If the effects of alcohol upon the mind was a voluntary matter, I could make no plea for a prohibi- tory law ; but as it is, there can be no better basis for any law than is presented by the inexorable effects of alcoholic drink upon the mind, for that of prohibition,. The phenomena of intoxication which has heretofore been the basis of all acoholic legislation under the license system has little more to do with the true legis- lation than the prostration of an individual upon his couch has to do with the medicine neccrsary to cure the disease which placed him there. How unwise, how premature then is that legislation which is di- 11 reeled solety to the involuntary and outward manifestation of a fatal and malignant affection of the mind over which the indivi- dual himself has no control. True, alcohol is a passive agent until taken into the system, then it immediately becomes a most powerful agent of society's greatest enemy, anarchy or the loss of reason over brute force. This I have always considered as being emphatically the basis for alcoholic legislation. In this regard it has no precedent ; society could well enough pass it on the score of health, or of economy, as it does hundreds of personal evils all over the land. Every person may have a perfect right to do as they please with their health and their money, but no person has the right to deprive himself of his reason, for the exercise of that belongs to society. It is the essential attributes of an intelligent reason which constitutes man a rational being, and consequently a voluntary agent, free to act for himself, within the limits precribed by society ; but when by any means he becomes deprived of the control of reason, he ceases to be rational and it is impossible for society to know what he will do. This is the legitimate effect of alcohol, which so changes the relation of the individual to society that his existence becomes hostile to its well- being. The motives which govern and control the conduct of human beings in possession of reason no longer apply to the per- son whose reason is governed by alcohol. He ceases to be a sub- ject of such legislation as applies to all other persons controlled by reason, not simply in his paroxyms of intoxication, for in his most sober hours he is a monomaniac. What, then, is society to do? Build asylums for these demented persons, and alms-houses for their unfortunate offspring, and employ agents enough to watch every drunkard in his fits of intoxication, to prevent him from in- juring the person or property of law-abiding people ; and all for what? To sustain the prerogative of personal liberty! Awa} r with such an idea ! Where is personal liberty when the indivi- dual is a slave to alcohol, watched by the agents of society for the preservation of the peace, or incarcerated within the walls of a/i asylum ? Have they left it behind in the record of a noble life, worthy as an example to be followed by those who should become cognizant of their acts? Has not CA r ery vestige of personal liberty been swollowed up in the vortex of alcoholic appetite ? Have they not rather sunk every vestige of personal liberty in the vortex of alcoholic appetite, and a record of shame left to be avoided by all who should become cognizant of it? If that be per- sonal liberty may I for one be forever delivered from it, and bound fast in the chains of a prohibitory law, if chains be necessary to such a law. But say what we will we cannot -deny society the prerogative of preventing any individual dependent upon it for protection, from being deprived of his reason. If the prerogative of personal liber- 12 ty consist in the "as I please" of the individual, it must neces- sarily limit the "as I please" within tho bounds of all existing obligations to society ; otherwise we shall commit the mistake of saying an individual is not obliged to do that which he is obliged to do. No obligation attaches to the "as I please" of any indivi- dual, for all personal rights are exercised independent of any moral obligation. If, then, inclination be a personal right (as Mr. Lewis affirmed at Hyde Park) it must follow that even if there be such a thing as moral obligation, inclination is independent of it. This is a grevious error because it makes moral suason, as well as legal compulsion, not only un- just but absurd ; because if liquor selling or drinking be a right by virtue of the prerogative of inclination or "as I please," the indi- vidual could not be under any obligation to listen to moral suasion, neither could he be moved by it. There is no way of getting at his inclination independent of moral obligation unless you buy him, or force him ; the former would abrogate all law, the latter would be unjust according to the premises because it would be restrict- ing his personal rights by legal compulsion. What kind of a state of society would we have in ten years under such a regime as this. But suppose moral suasion were effectual in moving the indivi- dual's inclination, would it not be an act of injustice to persuade him out of that which is properly his right ? Why should it be neccessary to persuade an individual out of his legitimate right? If it is my prerogative to do as I please I thank no man for tn'ing to persuade me out of my liberty, even by the gentle means of moral suason. But does not the idea of moral suasion express the fact of moral obligation ; and its effectiveness consists in the fact that the indi- vidual knows he has no right to commit such and such acts, let his inclination be what it will. Inclination, then, is subject to moral obligation, and a person has not the right to do as he pleases when he knows it will be the cause of injury or suffering to others ; in accordance with this we notice that knowledge and obligation or responsibility are invariably commensurate with each other. Now all legal enactments, civil or criminal, aie ostensibly for the purpose of compelling individuals to discharge these moral obligations toward society. If laws have any other object, that object has thus far been kept secret. But it is charged against the prohibitory liquor law that it undertakes to make individuals discharge their obligations towards themselves. Here we have a still further insight into the ambiguity of Dio Lewis' question ; if prohibitoiy law forbid the individual from buying that which he has a right to drink, on the ground of per- sonal injury, then the charge would be true, but the fact that such laws forbid the selling of intoxicants shows that it relates to 13 society and not to individuals. Prohibitory law tells us it is a breach of our obligation to society to fc sell alcoholic beverages, but has no reference to obligations concerning ourselves. It is evident an individual may take upon himself the responsi- bility of drinking that which will result in personal injury, and yet no law would interfere, his body being his own he is responsible ; but this liberty of the individual in no way makes it obligatory upon society to license one individual to furnish another with the means of injuring himself; if he will he may obtain it the best way he can, but at his own peril. I have previously stated that the personal right of an individual to injure himself did not release him from his obligation to society, because society, if just, is fram- ed according to the constitution of nature, and according to nature no individual with sane mind will voluntarily and intentionally in- jure himself. What, then, ought to be done with individuals who should voluntarily injure themselves so as to be unable to discharge their obligations to society? Suppose, for instance, a number of individuals in the community should cut off their arms or feet so as to incapaciate them for self-support and they with their families become dependent upon society? Is it not evident such a course as this would call for special and extraordinary legislation? So far as the personal right is concerned the individual may cut off his hands or feet, provided he can be responsible for all the con- sequences ; but by no means has he such a right if others have to suffer or bear a part of the consequences. Some may ask, what analogy there is between cutting off one's hands or feet and drink- ing alcoholic beverages ? I reply so far as his voluntary act is concerned it makes no difference to society how the individual comes to be in that condition which causes a breach of his obliffa- O tion, whether it proceed from one cause or another ; it is as much a crime for a person to incapaciate himself for supporting himself and family, by cutting off his hands, as it would he by drinking alcohol, provided it be done voluntarily and intentionally. Now in this case society would have to do one of three things ; let such individuals with their families suffer all the consequences and starve for want of sustenance, or support them, whatever their number might be, or else prevent the cause of the evil. I would ask if the latter is not the best, the more just and equitable way for all concerned when it can be done without injury to any class of the community. But 1 am far from allowing that persons who use alcoholic beverages do so with the intention of making themselves criminals and their families paupers. They have not made use of their personal liberty with intent to injure themselves as in the case just mentioned. To them it is not personal liberty, because they have been deceived and -injured. I know society generally does not take this view of it, but the statement cannot be disproved. 14 If then such persons have been deceived and injured it is evident somebody has done it. Here again we refer to the remarkable and peculiar effects of alcohol ufbon the mind ; it is undoubtedly the deceiver ; yet this I aver, that under an_y form of license law society is auxilliary to the deceit. I know of no more direct analogy to this case than that of counterfeit money ; it deceives, yet being a passive substance, the crime of deceit reverts to the voluntary agent, though he was only auxiliary to the deceit. It may be claimed that the public know just what intoxicating liquor is before they drink it. I reply, even if that be true the deceit is none the less apparent under a license IHW, with this difference that society repudiates the currency of right to drink intoxicants in the case of those who are affected by them, by criminating such persons on the ground of having voluntarily drank such liquors. It is evident this is an evasion of the point at issue. The point is, has the individual intentionally placed himself in that position? We are compelled to answer yes, or no. If we say yes, we assert that of which there is no possible proof, because such an act is without the limits of reason, and contrary to nature. Self-preser- vation is the strongest instinct of nature, and we cannot conceive of a person in full possession of their reason as committing inten- tional self-injury. I am aware of the fact that in law intoxication has always been assumed as intentional on the ground of preceding voluntary acts. No doubt the individual intended to experience auch sensations as the state of mental intoxication alone affords, but we are here again confronted by the peculiar effects of alcohol because its effects invariably exceed his intentions, otherwise he would receive no injury ; in fact, the effects of alcohol are at com- plete variance with his intentions ; his intention is happiness and facility ; alcohol deceives him, and brings misery, degradation and crime. Under a license liquor law, then, society is auxiliary to the deceit, but to justify itself repudiates in the case of the drunk- ard what it passes as current coin to the rest of the community, the voluntary drinking of intoxicating beverages. This act of in- justice society does to protect itself from the evil which it allows, under the plea of sustaining the prerogative of personal liberty. Prohibitory liquor laws, on the contrary, repudiate the whole thing as a cheat, a swindle, a counterfeit, as much so to the mod- erate drinker as to the drunkard ; and by that law softiet}' declares itself clear of all duplicity in the matter, and warns the community against being deceived by it. Prohibitory liquor laws virtually brand alcohol as a beverage, in whatever form, as a counterfeit, hence, persons who deal in it are criminals, as well and truly so as if they had attempted to deceive the public by passing counterfeit money. If any person wishes to disprove this conclusion he can do so by proving that every person who becomes addicted to liquor does so for the specific purpose, and with the avowed in- 15 tention of bringing upon himself and family all the consequences of a drunkard's life ; otherwise the conclusion must be correct. It will be seen by the foregoing considerations there is no ground for an argument against the strictest prohibitory liquor law on the ground of pensonal liberty, even granting the individ- ual more liberty than he asks for, the liberty of injuring himself. It is unreasonable to suppose any individual asks for such a pri- vilege, and that person has a questionable motive who claims for the public a privilege they in no wise would exercise did they know as much about it as he. None of t.he arguments used against pro- hibition in supposed analogous cases of personal liberty, in eating and drinking such food, and wearing such clothing as the indivi- dual choses, nor personal liberty in any other form, has any bear- ing upon the subject as here presented ; it rests solely upon the undeniable evidence that alcohol deceives the drinker by its effects upon the mind, producing insanity in all its degrees from the sim- ple monomania when the appetite first begins to form, all the way down to the raving mania of delirium tremens. UCSB LIBRARY University of California SOUTHERN REGIONAL LIBRARY ^AGILITY 405 Hllgard Avenue, Los Angeles, CA 90024-1388 Return this material to the library from which it was borrowed. P.CT 07 1! bFC 071991 lllPnttW""^ 298 1 Universii South< Libra