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 1839
 
 
 ■AM 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 INVESTIGATION 
 
 INTO THE 
 
 FIFTEEN GALLON LAW 
 
 OF MASSACHUSETTS, 
 
 BEFORE A JOINT COMMITTEE OF THE LEGISLATURE 
 
 WHICH BEGAN JAN. 39 AND CLOSED FEB. 30, 1839, 
 
 UPON TH1 
 
 MEMORIAL OF HARRISON GRAY OTIS AND OTHERS 
 FOR THE REPEAL OF THE LAW: 
 
 WITH THE ARGUMENTS OF 
 
 FRANKLIN DEXTER & B. F. HALLETT, 
 
 As Counsel in support of the Memorial. 
 
 7*"*- 
 
 PUBLISHED BY DIRECTION OF THE COMMITTEE FOR THE MEMORIALISTS. 
 
 BOSTON : 
 PRINTED BY J. H. BUCKINGHAM, 
 
 OFFICE OF THE NEW-ENGLAND GALAXY. 
 
 1839.
 
 s
 
 
 INTRODUCTION. 
 
 It was not the original intention of the Committee who had charge 
 of he Memorial of Harrison Gray Otis, Thomas H. Perkins, John 
 barker, Thomas Dennie, Nathaniel Goddard and forty-eight hundred 
 others inhabitants of Boston ; to present to the public a detail of the 
 proceedings before the Committee of the Legislature to whom that 
 subject was referred; but the repeated misrepresentations made of the 
 views ol the Memorialists by those who in this unhappy division in 
 society,— created by a busy few, the most intolerant and the least dis- 
 creet,— have sunk the original benevolent purposes of this moral 
 .re orm into a mere partizan struggle for a triumph in the experiment of 
 cstaohshing an inquisition over the consciences and appetites of their 
 ellow-c.tizens, by aid of an obnoxious law; seem to render it a pub- 
 lic duty to the present, as well as to future generations, to embody in 
 a permanent form, the grounds of the objections to the law and the 
 incontestible facts which were substantiated in the investigation. 
 
 It becomes the more important to discharge this duty because this 
 great question is still open before the public for their further action, in 
 consequence of the failure of the Legislature to repeal or modify the law 
 at the last session, although repeated votes in both branches demon- 
 
 fnrl th f ^ WaS a d f \ ded ma J° rit ^ a S ainst k ' in its P rese "t form, 
 and that it was not repealed solely because this majority, at the close 
 
 N S ?° n ; an " the dlF6rS ^ ° f °P inions > caused h y a S^ "um- 
 ber of different projects, were unable to agree upon a substitute. 
 
 It is also important, that while so much is published in support of 
 the law, the r e ason S against it should be equally accessible to an in- 
 quiring pub he. The opponents of this law object to it on the highest 
 fundamental principles of the Constitution ; viewing it as reaching much 
 deeper than a temperance reform ; and as, in fact, an entering wldge, a, 
 plausible pretext for an experiment upon popular forbearance, to°tert 
 
 686431
 
 how far fanaticism and bigotry can go in getting the sanctions of law 
 in tnis State to enforce particular creeds, and in reviving the long ex- 
 ploded dogma of persecution for opinion's sake, by virtue of pains and 
 penalties. 
 
 They wish, therefore, to have their views fairly presented, and not 
 distorted through the medium of prejudice and intolerance, which the 
 advocates of the law attempt to place before the eyes of the people, 
 whenever they are called on to look at this subject. These views will 
 be found in the following pages, as stated in the Memorial, and in the 
 arguments and evidence by which it was sustained before the Commit- 
 tee. To these positions, deliberately taken, and which will be firmly 
 and perseveringly sustained, is now asked the candid attention of that 
 enlightened and liberal portion of the people who have not lost their 
 clearness of perception by looking at a single object through the nar- 
 row orifice of sectarianism and party spirit, until they can see nothing 
 else ; nor have learnt to regard the professed end in view as a sufficient 
 justification of any means, however arbitrary and inexpedient, that may 
 be resorted to by heated partizans, to sustain it : forgetting that tem- 
 perance in legislation, temperance in the social relations, temperance in 
 language and opinions, temperance in moral reform, and temperance 
 in the enforcement of favorite theories, with becoming charity toward 
 all who differ in opinion from the promulgators of new creeds and doc- 
 trines in meats and drinks as well as morals and religion, are quite as 
 emphatically enjoined upon all good citizens as is that temperance 
 which they suppose can be enforced only by a legally enjoined 
 abstinence, under pains and penalties, from the temperate use of a par- 
 ticular beverage. In a word, the opponents of this law, as will be 
 seen by a candid examination of the grounds taken before the Com- 
 mittee, oppose coercion as applied to voluntary morals, in every form ; 
 and their arguments against law temperance, are precisely the same 
 in principle as have been urged in this Commonwealth, from the per- 
 secution of Roger Williams to the present time, against law religion. 
 The flippant retort of the temperance zealots, which is their most ready 
 and efficient argument, that the opponents of this law want rum lib- 
 erty, is just as sound, and no sounder, as was the like argument of the 
 persecuting bigots who prayed for laws to hang Quakers and banish 
 Anabaptists, that the opponents of those detestable laws wanted athe- 
 istical liberty. We want, that Liberty wherewith God and the Consti- 
 tution have made us free, and he who surrenders it at the call of fanati- 
 cism, in a single point, be it in meat or drink, mind or matter, body or 
 soul, is recreant to the principles and faith of those who won it, and is 
 prepared to surrender the whole, whenever the tyranny of despotism or 
 the intolerance of bigotry demands the sacrifice. 
 
 Boston, August 1839.
 
 INVESTIGATION 
 
 INTO THE 
 
 FIFTEEN GALLON LAW 
 
 OF MASSACHUSETTS. 
 
 The law against which the Memorialists protested, was passed the 
 19th of April, 1838, and is as follows: 
 
 An Act to regulate the sale of Spirituous Liquors. 
 
 Be it enacted by the Senate and House of Representatives, in General Court assembled, 
 and by the authority of the same, as follows : 
 
 Sec. 1. No licensed innholder, retailer, common victualler, or other person, except 
 as herein after provided, shall sell any brandy, rum, or other spirituous liquors, or any 
 mixed liquor, part of which is spirituous, in a less quantity than fifteen gallons, and 
 that delivered and carried away all at one time, on pain of forfeiting not more than 
 twenty dollars, nor less than ten dollars, for each offence, to be recovered in the man- 
 ner and for the use provided in the twenty-sixth section of the forty-seventh chapter 
 of the Revised Statutes. 
 
 Sec. 2. The Count)' Commissioners in the several counties, may license for their 
 respective towns, as many apothecaries or practising physicians as they deem neces- 
 sary, to be retailers of spirituous liquors, to be used in the arts, or for medicinal pur- 
 poses only ; and the mayor and aldermen of the several cities may, in like manner, 
 and for like purpose, license apothecaries, as retailers for their respective cities; and 
 the Court of Commen Pleas in the County of Suffolk, in like manner, and for like 
 purposes, may license apothecaries or practising physicians, as retailers in the town of 
 Chelsea ; which licenses shall be granted in the same manner, and under the same 
 restrictions now provided by law for licensing retailers: Provided, That the number of 
 persons so licensed shall not exceed one for every two thousand inhabitants, and in 
 towns containing less than two thousand inhabitants, one person maybe licensed: 
 And provided, further, That in such cities and towns where there is no apothecary, or 
 practising physician, such other person or persons may be appointed as aforesaid, as 
 may be deemed proper by said County Commissioners; and no person, so licensed, 
 shall sell any spirituous liquor to be drunk in or about his premises, on pain of the for- 
 feiture provided in the first section of this Act. 
 
 Sec. 3. All licenses hereafter granted to innholders, retailers and common victual- 
 lers, shall be so framed as not to authorize the licensed persons ta sell brandy, rum, or 
 any other spirituous liquors ; and no excise or fee shall be required for such a license. 
 
 Sec 4. The provisions of all laws now in force, inconsistent with this Act, are 
 hereby repealed. 
 
 Sec. 5. This Act shall take effect on the first day of July next, but shall have 
 operation upon any licenses granted previous to that time. 
 
 [Approved by the Governor, April 19, 1838.]
 
 MEMORIAL 
 
 To the Senate and House of Representatives in General Court 
 
 assembled : 
 
 When a law has been enacted involving a new and dangerous principle in legisla- 
 tion, unequal in its operation, at best of extremely doubtful constitutional right, infffi- 
 cTent in promoting its professed end, and tending to endanger a good moral cause, by 
 exciting opposition and stirring up division as to the means for promoting that cause, 
 in communities where all good citizecs were desirous to have a thorough leform in 
 habit, and appetite effected by moral persuasion ; it becomes the duty, as well as right 
 of the people to ask of their public agents, the repeal of such law. 
 
 For these general reasons, the undersigned respectfully ask for the repeal of the law 
 passed at the^last session, entitled " An Act to regulate the sale of Ardent Spirits." 
 
 The title of that Act, we submit, is a misnomer, for instead of regulating, as all acts 
 on this subject have hitherto assumed to do, it entirely prohibits, in any form or under 
 any circumstances, to be used except in the arts or for medicine, the sale of any liquid, 
 " part of which is spirituous," unless sold to the extent of fifteen gallons, to be all 
 delivered and carried away at one time 
 
 The question is not whether this law, if enforced, might or might not promote tem- 
 perance, but whether in its application to a particular description of property and to 
 the free agency of the citizen, it does not contravene all" sound principles applicable to 
 the possession, use, and enjoyment of property as a whole, and the exercise of plain 
 personal and domestic rights that lie at the foundation of free Government. It is not 
 a question merely affecting morals, but the highest constitutional guarantees of prop- 
 erty and individual liberty. 
 
 We ask for the repeal of that law, on these grounds, for the following summary of 
 reasons : 
 
 Because it assumes to prescribe the particular uses to which properly lawfully 
 acquired shall be put; prohibiting a use lawful in itself ; — thus following the article 
 when sold to the home and the closet of the citizen who buys, and instituting a new 
 system of espionage upon his domestic acts. 
 
 Because the paramount laws of Congress authorize the importation of this article of 
 rnarchandize and its incorporation into the mass of property, all of which is under a 
 regulation of -commerce, which power is wholly ceded to the United States by the 
 States, and therefore no State can prevent such importation and incorporation into the 
 mass of property. 
 
 Because when so incorporated it becomes like all other merchandize or chattels law- 
 fully acquired, a part of that property which the Constitution of this State secures to 
 every citizen, and guarantees to him " the right of acquiring, possessing and pro- 
 tecting," and in the " enjoyment" of which property, like all other, the Constitution 
 says "each individual has a right to be protected by Society." 
 
 Because, to proscribe by a State law, any particular description of merchandize which 
 under the United States Constitution becomes the lawful property of a citizen of this 
 State, and withhold from it the right of " enjoyment" secured to all property, on the 
 ground that excess in the use of it is injurious to Society ; is as manifestly an evasion 
 of the guarantee of property rights, as it would be to deny the constitutional protec- 
 tion to jewels, plate, equipage, or any article of luxury, the excessive use of which, or 
 its use at all by the poor, tends to demoralize and impoverish a community. 
 
 Because when the Constitution of this State and of the United States were adopted, 
 the chattel now deprived of the most essential quality of property by this law. was fully 
 recognized as possessing all the immunities attaching to other property ; and hence it 
 being the subject of lawful property under the supreme law of the land, for a State to 
 deprive it of value by denying to it sale and transfer, is an act of Nullification of the 
 laws of Congress, rendering the right of importation useless by destroying the right 
 to sell. 
 
 Because, by thus singling out and virtually confiscating one species of property 
 which one portion of Society believe it is unsafe for another portion to hold, except in 
 large quantities, an arbitrary and despotic precedent will be established, by which the 
 6acred right of acquiring, possessing and enjoying property, may be narrowed down to 
 the mere will of a majority of the Legislature for the time being, as to the kinds and 
 quantities of property the;,' may think it safe to let the citizens enjoy. 
 
 Because the arguments in support of this law, drawn from the legal suppression of 
 
 gambling, lewdness, lottery tickets and drunkenness, are not applicable to a law which 
 
 prohibits the sale from any and all citizens to others, of a specific chattel or property, 
 
 Sported and incorporated into the mass of property under the sanction of the para- 
 
 -^^nt laws of the land.
 
 Because it assumes that the sale of a particular article of property lawfully acquired 
 and held, is a crime, and then only punishes the alleged offence when little, but legal- 
 izes it in large quantities, thus contravening the plainest principle of right, by punish- 
 ing crime in the inverse ratio of quantity. 
 
 Because this law in effect confiscates property lawfully acquired, in the hands of the 
 purchaser from the importer, and aunuls the importation laws. Hence if a State can- 
 not directly prevent an article being imported and sold to its citizens in the first in- 
 stance, would it not be unworthy a Legislature to adopt any evasive or cunning device 
 to effect indirectly what the constitutional compact and the public faith due to the 
 National Laws, prohibit being done directly. 
 
 Because, so long as lire supreme law attaches to this article the right of being law- 
 fully acquired, there can be no just distinction made as to the enjoyment and use of 
 this right, beyond its abuse and the mere regulations of police, which does not apply to 
 all other property in the hands of the citizen. 
 
 Because, if the Constitution of the United States does not prevent a State from pass- 
 ing any law, however arbitrary, for regulating its internal commerce between citizens, 
 the Constitution of the State protects the citizen in the enjoyment of all lawfully 
 acquired property, and to abolish the sale of it, is in effect a law of confiscation, be- 
 cause the value of property depends on what it will bring, and to abolish its transfer, 
 abolishes its value. 
 
 Because it is no answer to this objection to say that the transfer of this property is 
 abolished only in given quantities, but allowed, unrestrained, in larger quantities; 
 which is only saying that if a citizen is able to acquire a great deal of property, he 
 shall be protected in the enjoyment of its use and sale, but if he is able to acquire only 
 a Tittle property, he shall be punished for selling it to another, and also tire individual 
 who sold it to him. 
 
 Because the Constitution in securing the right to keep and bear arms, does not more 
 directly involve the right to purchase, and sell such arms, subject only to proper police 
 regulations, than does the provision that each citizen shall be protected in the enjoy- 
 ment of property, lawfully acquired, involve tire right of purchase and sale. Hence if 
 the sale of lawfully acquired property may be forbidden to prevent its tendency to 
 abuse in bad hands, may not the Legislature, should the Non Resistance Societies de- 
 mand it, prohibit the sale of fire arms, in small quantities, lest they should be used ill 
 self defence. 
 
 Because this law makes another innovation upon settled principles governing the 
 rights of property, in prescribing for what particular purposes of domestic and private 
 use, property shall be sold, or shall not be sold. It says that any quantity of the pro- 
 scribed property may be sold provided it is to be used in arts or medicine — that none 
 shall be sold under a given quantity, to be used for any other purpose ; but that it may 
 Be sold, to any extent and for any use, over a given quantity at a time. 
 
 We ask for the repeal of this law, then, as a dangerous precedent affecting the rights 
 of property. We ask for that repeal, further — 
 
 Because it is a departure in principle from the ui'iform course of legislation upon this 
 subject, under the Constitution, which has been to regulate and not to prohibit; former 
 laws being founded on a matter of police, to govern places of resort, preserve order ( 
 and punish actual violations of law. 
 
 Because it is a false principle in penal enactments to punish an act, not criminal in 
 itself, on the ground that it tends to crime in another, while at the same time the law 
 freely furnishes this tendency to crime in large quantities, and only prohibits it in 
 smaller. 
 
 Because the law is founded on another position as false as it is unjust, viz: that the 
 moral sense is not as strong in the poor as in the rich, and that the former cannot 
 without restraining laws, resist temptations that may be safely presented to the latter, 
 without injury to the common good ; thus assuming the odious distinction that the 
 Legislature must take care of the poor, by guarding them against temptation, whiie 
 the rich may be safely left to take care of themselves. 
 
 Because it is a libel on humanity to assume that the poor must be restrained in appe- 
 tite and the rich indulged, when in fact it is the industrious classes with small means, 
 who are trained by circumstances to self-denial and abstinence; while the rich are 
 more exposed, from habit and means, to excess in indulgence. 
 
 Because it is a sumptuary law against appetite, always odious in any form, but espe- 
 cially so in this case, where, instead of restraining the luxury of the wealthy, it is aim- 
 ed exclusively against the appetite of the poor, and freely indulges that of the rich ; 
 thus infringing the spirit of that provision which declares that the Constitution was 
 expressly framed " to provide for an equitable mode of making laws." 
 
 Because voluntary principle is the only safe reliance in a free government, for the 
 support of religion and the advancement of moral causes; and the professed object of 
 this impossible law, viz: the suppression of appetite in a particular class, is as muc u 
 beyond the reach of penal laws, as are the conscience and the internal will of man.
 
 8 
 
 Becaust it is a law against moral agency, imposing punishment not upon anj crime 
 or offence, but upon an indulgence in appetite that may lead to crime. 
 
 Because the argument that Society has a right to prevent pauperism through intem- 
 perance its greatest source, no more justifies this law, than it would a law to punish 
 any citizen who should keep or use the article at home— and, moreover, this argument 
 is a libel on a majority of the people, in assuming that the pauperism which is engen- 
 dered by intemperance, is confined to those who cannot purchase fifteen gallons at a 
 time, while the higher classes, who indulge at their tables and sideboards, are in no 
 danger of becoming a public charge. 
 
 Because this law is an alarming precedent, tending to revive that series of arbitrary, 
 bigoted and outrageous restraints upon personal freedom, domestic rights and private 
 opinions, known as the Blue-Laws of the old Colonies ; and on this principle, when- 
 ever any sect in morals or diatectics happen to get a majority in the Legislature, they 
 may pass laws to prohibit and punish all the indulgences they think proper to 
 condemn. 
 
 Because there is obviously a dangerous tendency in the times to intemperate excess, 
 in carrying out benevolent and noble objects of reform, which threatens to drive the 
 sober and prudent and reflecting from all such useful associations— wherefore v.e con- 
 ceive it is peculiarly the duty of the Legislature not to countenance a doubtful and 
 vexed measure of reform having this tendency, and which, if persisted in, will encour- 
 age those who run into the wildest theories of moral restraint, to get up combinations 
 and parties to force their particular creeds into the form of law. 
 
 For these, among numerous other reasons, v.e address ourselves to the calm good 
 sense of the Representatives of the people. We pray them, as friends of temperance, 
 not to endanger the healthful moral influences that were carrying forward that cause 
 as rapidly as the condition of society would admit. We ask them not to forget that 
 thouo-h temperance is a noble cause, Liberty and Equal laws are nobler. We assure 
 them that this law must fail of its professed object, and will not succeed in restraining 
 appetite which will be indulged by combinations and evasions to a greater extent than 
 without this ineffectual attempt at restraint. 
 
 We ask them not to compel those who have uniformly sustained the moral cause of 
 temperance and still desire its success, to rally against this measure in defence of a 
 higher principle than temperance itself, the liberty of the citizen. Very many of the 
 devoted, practical friends of temperance, solemnly hold this law to be a violation of 
 fundamental principles. They deny its right, they doubt its constitutionality, they 
 are satisfied of its inexpediency, and that it will react, and retard the cause rather than 
 advance it. They cannot consent to do wrong that good may possibly come. They 
 will rather wait for moral causes to operate, than force the end they wish to accom- 
 plish, at the expense of reaction and the soundest and plainest principles of Equal 
 Rights. 
 
 Wherefore we pray the Legislature to repeal this law, and thus remove from the 
 Statute Book, the first act of a Sumptuary law, which has been placed there since the 
 adoption of the Constitution. 
 
 MR. HALLETT'S OPENING ARGUMENT, 
 
 B. F. Hallett opened the inquiry on the part of the Memorialists. 
 His purpose was to present the reasons and facts on which the repeal of the 
 law of 1838, prohibiting the retail sale of spirituous liquors, was asked for 
 in the Memorial, and his wish was to confine the investigation strictly to 
 the matter in hand, viz. whether the law in question ought to be repealed 
 or not. 
 
 We disclaim the issue of Temperance and Intemperance. It would dis- 
 credit the intelligence of the Legislature to treat this subject as if they de- 
 sired to be instructed through a committee as to the blessings of temper- 
 ance or the evils of intemperance. The question is not the evil, but the 
 remedy : whether this law is a remedy for the evils that are connected with 
 ntemperance in society, and whether it is such a law as ought to be enact- 
 ed under any circumstances. I am aware that the attempt will be made 
 ^ the other side, to represent the opponents of this law as the opponents
 
 9 
 
 of Temperance, and thus, by making a false issue, preoccupy the favorable 
 opinion of the Committee. In the outset therefore, I protest against this 
 assumption ; and so far as the evils of intemperance are concerned, the sup- 
 porters of the law may if they choose, take our general cognovit, and thus 
 relieve the Committee from the wide range of inquiry which that mode of 
 treating the subject would lead to. The Memorial asks for the repeal of 
 the Law on the very ground, among other objections to it, that it is adverse 
 to temperance, and endangers the progress of a good moral cause. On this 
 point we shall have much to say, and many facts to present. 
 
 The question is simply whether so long as the laws sanction the importa- 
 tion, acquisition and use, of this species of property ; a moral act of self-de- 
 nial, lutal abstinence from the use of spirituous liquors, shall be attempted 
 to be enforced by a law of prohibition and penalty, or be left to moral influ- 
 ences under general laws of regulation. The object of all former laws on 
 this subject has been to promote temperance, by regulating the sale to all : 
 the aim of this law is to enforce total abstinence in a part, by prohibiting 
 the sale to one class and allowing it to another. 
 
 The friends of the law claim an authority for its enactment under the in- 
 junctions in the State Constitution. To show that this claim has no foun- 
 dation in the Constitution, it is only necessary to refer to the plain distinc- 
 tion between temperance and total abstinence ; the one meaning a moder- 
 ate use of an article of appetite or luxury, and the other an entire abstinence 
 from such use. Temperance, when applied to any act or indulgence, im- 
 plies that the virtue of temperance consists not in the absolute denial, but 
 in the moderate use. It cannot therefore be applied to any indulgence, 
 wrong in itself. We do not say that men should be temperate in gambling, 
 vice, or crime ; but that they should abstain altogether, because any partic- 
 ipation, however moderate, is criminal. Consequently, by temperance, our 
 fathers meant a moderate use of the luxuries of life, and as the Constitution 
 must be interpreted by the manifest intent of those who framed it, it is plain 
 that they never could have intended to enforce total abstinence from any 
 description of food or drink, under the denomination of Temperance. This 
 word which is used but once in the Constitution, is as applicable to eating 
 as drinking, and it might with equal propriety be urged that the Constitu- 
 tion enjoins upon the Legislature to make laws to enforce total abstinence 
 from all kinds of food not indispensible to life, as that it authorizes such 
 laws in relation to drinks. 
 
 The State Constitution speaks of temperance but no where of total absti- 
 nence. The law in question is designed to enforce the latter, upon a partic- 
 ular class, who have not the means to get over it; and if the Constitution is 
 to be appealed to for its sanction it must be shown that by virtue of the Con- 
 stitution the enforcement of total abstinence by law comes within the prov- 
 ince of the Legislature. 
 
 As the Constitution is so often referred to, and by a disingenuous per- 
 version of this word Temperance from its true meaning, wrested into a 
 seeming sanction of any law, however arbitrary, to prohibit the moderate 
 use or sale of alcohol, it is proper to set this part of the inquiry to rest in 
 the outset. 
 
 The State Constitution on Temperance. 
 
 The only use made of this word in the Constitution is the following. 
 
 "Art. 18. A frequent recurrence to the fundamental principles of the f 
 Constitution, and a constant adherence to those of piety, justice, modera- ' 
 tion, temperance and frugality, are absolutely necessary to preserve- 
 the advantages of liberty, and to maintain a free government. The peof* 5 
 
 /
 
 10 
 
 have a right to require of their lawgivers and Magistrates an exact arid 
 constant observance of them in the formation and execution of the laws." 
 If this sanctions a prohibitory law against beverage or food, the "constant 
 observance" of it enjoined, would require that total abstinence should be 
 regarded in forming all the laws. This is sufficient to show that the Tan- 
 perance here referred to is a quality ; a virtue the opposite to excess in all 
 things. With as much propriety might we argue that because the Consti- 
 tution enjoins a constant adherence to frugality, therefore the Legislature 
 ought to pass laws restraining the expenses of living, and prohibiting the sale 
 of all unnecessary articles in housekeeping, to save people from the tempta- 
 tion of running in debt, getting insolvent and committing suicide. As 
 well might we argue from this article that the moderation and Justice it en- 
 joins in the making of laws, render it the duty of the Legislature to repeal a 
 law so immoderate and unjust as the prohibitory law under consideration. 
 As well might we say that we ought to have an established religion by law, 
 because the observance of piety is enjoined. The " fundamental principle" 
 of equality, is the first principle to be referred to in making- laws; and this 
 principle the law of '38 violates. How then can the ISth article support it? 
 Another part of the Constitution relied on by the advocates of the law, is 
 the 4th .Article of the 1st Chapter in which "full power is given to make, 
 ordain and establish all wholesome and reasonable orders, laws, statutes and 
 ordinances, necessary for the good administration of the Commonwealth." 
 If this is to be construed without limit, it sets up a claim of irresponsible 
 power in the Legislature, and abrogates the Constitution itself. If other- 
 wise, it is begging the question to assume that this is a wholesome and reas- 
 onable law. It must not only be shown to be wholesome and reasonable, 
 but to be "necessary for the good administration of the Commonwealth." — 
 To be reasonable, it must be equal in its operation on all classes of citi- 
 zens. 
 
 The 2d Section, Chap. 5, has also been pressed into the service of this 
 law, which says, — "It shall be the duty of Legislators and Magistrates to 
 countenance and inculcate the principles of humanity and general benevo- 
 lence, public and private charity, industry and frugality, honesty and punc- 
 tuality in dealings, sincerity, good humor, and all social affections and gen- 
 erous sentiments among the people." 
 
 The argument attempted to be drawn from this is, that because intemper- 
 ance is adverse to the principles here recommended, therefore the Legisla- 
 ture must pass laws to enforce total abstinence. As well might it be argu- 
 ed that because wine is said to make men generous, good humoured and 
 social, therefore the Legislature ought to encourage its convivial use. 
 
 But to place this matter beyond dispute, we have a contemporaneous ex- 
 position of the intent and meaning of the founders of the Constitution, which 
 is the soundest and safest rule of construction, as to delegated power. The 
 Convention that framed the Constitution of Massachusetts assembled in 
 1779. Two years before that, in 1777, the General Court of Massachusetts 
 composed of many of the same individuals who were members of the Con- 
 vention in '79, passed a law to the following effect, which may be found in 
 the first Vol. Resolves of Massachusetts Bay for February 1777, p. 33. 
 
 "Resolve to prevent the exportation of rum and other articles out of this State, as 
 well by land as water, passed Feb. 7, 1777. 
 
 "Whereas, the Rum, &c. now in this State are all needed for the supply of the army 
 and the inhabitants of this Stale, It is therefore resolved that all exportation of Rum, 
 Molasses, Sugar, Cotton Wool, Sheepswool, flax, salt, coffee, cocoa, chocolate, linen, 
 cotton and linen, woollen and cotton goods of all kinds, provisions of all and every sort 
 shoes, hides, deer skins, sheep skins, and Leather of all kinds, as well by land as by wa- 
 ter, from every port of the State, be stopped except to the different ports of 'this State. 
 
 And if any vessel shall be found having any quantity of rum, more than fit) callons 
 
 1
 
 11 
 
 im a vessel of 80 tons, for a three months voyage, and in that proportion for a Itirger or 
 smaller vessel and on a longer or shorter voyage, being 'outward bound or found at sea. 
 having sailed from any port in this State for any part of the world without this State ; 
 such vessel shall be a lawful prize for any person who shall take the same ; and shall 
 be condemned and sold in the manner provided for sale of vessels taken in carrying 
 supplies to the enemy. 
 
 And if the Committee of Correspondence, Instruction and Safety, of any towns in 
 this State shall suspect that any team is loaded with such article to be transported out 
 of the State, said Committee are empowered and directed to stop all such teams till 
 they can make proper inquiry, and to seize and file an information against the same, 
 as forfeited, one half to the Committee and the other half to the State. 
 
 Provided this resolve shall not prevent the carrying of the article from this to any 
 neighbouring State, as purchased at ordinary retail, either for the consumption of indi- 
 viduals or single families. And it is hereby recommended to the good people of this 
 State to afford all possible aid to the Committees aforesaid to enable them to carry 
 these resolves into effectual execution." 
 
 Resolved, that if it appear any article has been transported contrary to this Resolve, 
 the owner shall forfeit the value, to be recovered by action of debt. 
 
 Mr. Hosmer is directed to procure 2000 copies to be printed, and cause the same to 
 be printed in the Boston Newspapers." 
 
 Jn Council, March 2G, 1777, it was voted, 
 
 Whereas, it is of great importance that there should be ample supply of rum, suo-ar, 
 molasses, cocoa, coffee, cotton, wool and salt, for the use of the army, and every imped- 
 iment to their importation ought immediately to be removed, therefore Resolved, that 
 Benjamin Greenleaf, Thomas Cushing and John Taylor, be a committee, <Vc. to con- 
 eider the expediency of repealing an embargo upon all vessels in this State, and to con- 
 sider what other measures are proper to be. taken for procuring a supply of the articles 
 above mentioned. 
 
 In the House, Mr. Dalton, JudjTe Cushing, B. Thompson, and Mr Phillips arc join- 
 ed, Walter Sheever, in place of Greenleaf. 
 
 Here, in an enumeration of all the staple necessaries of life, rum is placed 
 foremost as indispensible for the use of the army in fighting the battles that 
 won our liberties ; and yet we are now told that the same men who passed 
 that law, two years after framed a Constitution which enjoined it upon the 
 Legislature to prohibit the sale of that article, under fifteen gallons, and to 
 enact laws to enforce total abstinence from its use, by all except men of 
 quality and estates ! 
 
 I have no disposition Mr. Chairman, to join with our patriotic forefathers 
 in their eulogy upon rum as the first article in a list of the necessaries of 
 life, or as necessary at all, under any circumstances as a beverage ; but to 
 .such extremes are ultra notions on this subject now carried, that it would 
 seem incredible that the world could have stood, or a virtuous community 
 have been found in it, with the toleratiou of rum; and yet these Resolves 
 were passed, and were practiced upon, by the purest patriots and the wisest 
 and best men of our Commonwealth, who sacrificed every consideration of 
 self to the public good, and the loss of whose simple virtues is but sadly 
 supplied by the mock morals and pharisaical pretensions of the present day- 
 After this exposition of facts, the friends of this law must look to some 
 other source than the Constitution for enjoining its adoption as a duty, upon 
 the Legislature.* 
 
 " Mr. Hallett intended to have stated another fact nearly contemporaneous with the 
 Constitution. The Convention of 355 Delegates, who adopted the U. S. Constitution 
 in 1788, voted at the close of their labors, to proceed to the State House to proclaim the 
 ratification and take an affectionate leave of each other. An invitation from a number 
 of the inhabitants of Boston requesting the members of the Convention to take refresh- 
 ments at the Senate Chamber, when the ratification should be declared, was read, and 
 thereupon voted, that the thanks of the Convention be given to the inhabitants of 
 Boston for their polite invitation, and that the Convention will attend as requested. 
 
 The Boston Centinel of February 9, 1788, gives the following particulars in con- 
 formation of the views the framers of the Constitution took of temperance : 
 
 "The whole Convention having been previously invited, partook with a number 
 the respectable citizens, of a decent repast, prepared in the Senate Chamber, and sw 
 
 nu 
 of 
 
 jn- .'
 
 12 
 
 General Principles. 
 
 I will now proceed to state the general grounds on which we object to 
 the law of 1838, and ask for its repeal. 
 
 It involves a novel and dangerous principle in legislation as applied to 
 personal rights, and acts lawful in themselves. 
 
 It is of doubtful constitutional right, and directly unconstitutional, as an 
 unequal law, and as an infringement of the power of Congress to collect 
 revenue. 
 
 It aims at an end the law cannot reach, and is ineffectual in promoting 
 its professed end. 
 
 It endangers a good moral cause by exciting opposition and stirring up 
 division and party strife. 
 
 It divides the community politically in an injurious controversy as to the 
 means for promoting total abstinence, whether moral and persuasive, or 
 penal and coercive. 
 
 It creates a new conflict in society and raises up two strong opposing 
 parties, where before, all good citizens were united in desiring a thorough 
 reform in the customs of society, and the indulgence of appetite. 
 
 It retards and diverts from their true course the healthful moral influen- 
 ces that were carrying forward the temperance reform as rapidly as the con- 
 dition of society and the permanency of the cause would admit. 
 
 It compels those who have uniformly sustained the temperance reform as 
 a moral cause, but who disclaim its attempted control of legislation by po- 
 litical action ; to rally against this law in defence of higher principles than 
 temperance; the liberty of the citizen, and the fundamental rights of property. 
 
 It thus tends unavoidably, to identify actual opposition to Abstinence as 
 a moral cause, with the just opposition to an alarming encroachment by this 
 specious legislation, upon personal rights and first principles, that lie at the 
 foundation of free government. 
 
 It compels those who are jealous of popular freedom and the right of self 
 government, to remember that Liberty and License laws have subsisted to- 
 gether for centuries, but Liberty and arbitrary laws, never. 
 
 It disregards the rational progress of moral causes, and impatiently at- 
 tempts.a legal enforcement of self denial, at the expense of inevitable reac- 
 tion, and without respect to sound and settled principles of equal rights, or 
 equal laws. 
 
 It seeks for precedents of justification in the most doubtful and long 
 exploded applications of legislation to restrict rights and control personal 
 action; and is a backward movement in government, assuming to make 
 men abstemious as bigotry formerly undertook to make men religious, by 
 pains and penalties. 
 
 The law is moreover based on a false principle of legislation ; false be- 
 cause it cannot be applied to property or right in general ; and false, be- 
 cause it becomes absurd and unbearable the moment it is attempted to car- 
 ry it out to its legitimate and unavoidable conclusions. 
 
 The doctrine of the law is this — that because drinking a certain liquid 
 to excess injures the individual, and he injures society, therefore the law 
 
 a spirit of joy, union and urbanity was diffused, as if continued, must be attended with 
 the most happy consequences. The toasts given were truly conciliatory, and were 
 drank with sincerity, by every one present." 
 
 When President Washington made his grand entry into Boston, October ^9, I7S9, 
 one of th« most prominent in the display of trades and occupations in the immense 
 procession that welcomed him, was the whole body of Boston distillers, preceded by 
 Mr. Thomas Hill, with banners. Device on the flags, a Still with the Distillers Arms. 
 Motto, "drop as rain, distil as dew-"
 
 13 
 
 must prohibit it as a beverage. If this position is sound, it must follow 
 that wherever it can be shown that any article of luxury of food or drink is 
 unnecessary and injurious to an individual or his family, the law must inter- 
 pose and prohibit its use by all those who cannot afford to ruin themselves 
 without ruining their families. 
 
 Again, it is a law originating not in philanthropy, and benevolence, but 
 in distrust of moral influences and contempt of the capacity of men with 
 small means to practice wholesome self denial. 
 
 It is a law against moral agency, assuming not as all other laws do, onlv 
 to punish crime when committed, but to restrain by penal enactment, the 
 exercise of discretion in the moderate use of a beverage, because it may be 
 used to excess, thus denying to one class a right,because others use that 
 right to do wrong. 
 
 It punishes the moderate sale as a crime in order to prevent the temper- 
 ate use, and yet does not punish the use at all until it amounts to drunken- 
 ness, when in fact, it is the use and not the sale that is the cause of drunk- 
 enness. 
 
 The seller is only accessory to the use ; the user commits the overt act, 
 yet the first is punished, though no injury is proved to follow his act, while 
 the latter is punished only in case of excess and positive wrong done. 
 
 As well might the law punish those who keep gambling houses and im- 
 plements, and not those who gamble, as to punish those who sell and not 
 those who drink. 
 
 This law assumes to enforce prevention of an act, not wrong in itself, 
 but on the ground that it may tend to wrong in another ; thus punishing 
 an innocent act in one man without rpgard to criminal intent, and only be- 
 cause another may commit a crime ; as if the law should punish him who 
 innocently sells edge tools because they may be used to maim or murder. 
 
 It divides society morally by a false and invidious- line — assuming that 
 self control is coextensive with pecuniary means, denying its existence as a 
 rule of action to be trusted in those possessing small means, but admitting 
 its unlimited and safe influence with those of large means. 
 
 It affirms the necessity of restraining the appetite and taking care of the 
 morals of the poor by law, but leaves the rich to take care of their own mor- 
 als and appetites. 
 
 It is a sumptuary law ; a species of legislation always odious in the most 
 arbitrary governments, and never to be tolerated in a free one. It ia a 
 sumptuary law even in the technical sense of that term, for it assumes that 
 a certain article of ordinary consumption is unnecessary, and undertakes to 
 prohibit the indulgence in it by one class of society who heretofore have 
 had it in any quantity they chose to buy it. 
 
 It is therefore a sumptuary law in restraint not of excess, but of a sup- 
 posed tendency to excess in the indulgence of an appetite not unlawful in 
 itself. 
 
 It is moreover a sumptuary law to restrain indulgence and unnecessary 
 expense, exactly in the inverse ratio of the means to indulge and buy. 
 
 It prohibits an act (the sale of a pint of ardents) which is just as inno- 
 cent as the sale of fifteen gallons, which it allows ; and while it claims au- 
 thority to prohibit or restrain, solely on the ground of the injurious tendency 
 of an act innocent in itself, it most absurdly prohibits only in small quanti- 
 ties and permits in large quantities. Thus it undertakes to punish an al- 
 leged offence to society in the inverse ratio of quantity. 
 
 It differs from all former laws 
 this prohibiting ; the former limi 
 but never the quantity they migh 
 six cents the same privilege of buying according to his means, as to the m* rt 
 
 /erse ratio of quantity. . 
 
 on this subject, the former regulating and ^r 
 liting the persons who might lawfully seller 
 ht sell — the former securing to a man ojr
 
 14 
 
 of millions, while this law outlaws every man who cannot command at one 
 time, at least six dollars. 
 
 This law undertakes to prohibit the traffic on the ground of common 
 good, and yet prohibits it only to those who cannot raise six or ten dollars 
 at a time for an unnecessary expense ; as if the common good required that 
 only common men should be restrained by pains and penalties. 
 
 The only evil to society which can warrant any law regulating this arti- 
 cle as distinguished from other articles of food or drink, is the intemperate 
 use. That evil, it is assumed, grows out of the moderate use, yet the law 
 does not punish the moderate use at all, only the moderate sale. 
 
 Hence if the public good demands the suppression, by law, of all tenden- 
 cies to excessive use, it should punish the moderate user as well as the 
 moderate seller. 
 
 If there were no sale by retail, still the moderate use would continue, 
 but if there were no use there would be no sale at all. The law there- 
 fore, if it means to suppress the evil, should go directly to its source, the 
 use, and suppress that by pains and penalties. The fact that it cannot do 
 bo, is conclusive that the attempted prohibition of sale, while the use is 
 permitted by law, is founded on a false and ineffectual application of legis- 
 lation. 
 
 The law is invidious and unequal, because it is so framed as in intent 
 and practice, if enforced, to be a prohibition to one class and a free indul- 
 gence to another. 
 
 It is invidious as to the kinds of beverage to which it is applied ; for it 
 says to those who prefer alcohol in the form of rum, brandy and gin, that 
 they must be restrained, while it says to those who prefer alcohol in the 
 form of wine, that they may be freely indulged in any quantity. 
 
 It is invidious because those who made the law have reserved to them- 
 selves the means of indulgence, by not extending the restriction to a quan- 
 tity beyond their reach at any time, while they have prohibited the sale of 
 it in quantities within the compass of the means of a large portion of their 
 constituents. 
 
 If it be, as is contended, only a partial prohibition, then it is a partial 
 law ; for if the common good demands prohibition at all, to be equal and 
 just, it must be universal, both in selling and baying. Ability in means, 
 to do an act on a large scale, cannot make that act venial, while the same 
 act, on a small scale, by those of small means, is made a crime. 
 
 These are some of the leading principles in morals, equity, and law, 
 which demonstrate that the Act of 1838 prohibiting the sale of an article 
 of merchandize in less than fifteen gallons at a time, is based on a false 
 doctrine in legislation. 
 
 Property Rights. 
 
 The law is equally odious and objectionable in its application to prop- 
 erty rights, for the following reasons : — 
 
 It singles out a particular description of lawful property and merchan- 
 dize, and deprives it of its ordinary uses and sale by force of law. 
 
 It thus interferes with and abrogates, as to this kind of lawful property, 
 the universal right of acquiring, possessing and enjoying property. In this 
 respect it evades, and arbitrarily suspends, and as I hold, openly violates one 
 of the fundamental immunities of the State Constitution. 
 
 It also evades, and in effect nullifies the United States Laws of importa- 
 tion, because the power it claims to prohibit the sale of property except 
 from the importer to the next hand, if enforced, would in fact destroy im- 
 portation. 
 
 It prescribes a limited use to which alone lawful property shall be put,
 
 15 
 
 prohibiting its ordinary, lawful use, and that not by punishing the use hut 
 by punishing the sale for that use. 
 
 It thus makes even a licensed seller responsible for the particular use to 
 which his customer puts the article, subjecting him to a legal inquisition as 
 to knowledge he had of the intended lawful use when he sold the article ; 
 subverting all principles of criminal jurisprudence which never punishes 
 intent in one man connected with the act of another, unless that intent is 
 accessary to a criminal act. 
 
 It is absurd and contradictory in the application of prohibition of the 
 use of this property : 1st, permiting it to be sold in any quantity to be used 
 in arts and medicine; 2d, punishing the sale for any other use, in small 
 quantities; and 3d, permitting the sale in large quantities for any use 
 whatever. 
 
 It assumes that the sale is a wrong to society. It then sanctions this 
 wrong in gross, or when committed to indulge the rich, and punishes it 
 only in detail, or when committed to indulge the poor. 
 
 It allows an unrestrained indulgence to all who can enjoy it largely, and 
 denies it to others merely because they can procure it only sparingly, or in 
 small quantities at a time. 
 
 It is admitted by those who sustain this law, that the evil is not in the 
 article, which is no nuisance or offence in itself, like infected goods or taint- 
 ed provisions, but in the appetite for its excessive use. We say, therefore, 
 that you cannot on any known principles of equal and just legislation, treat 
 this lawful property as a nuisance or a source of physical contagion under 
 the health and quarantine laws; nor as an article unsafe to be kept in 
 shops and warehouses, under the police laws which regulate the fire de- 
 partment. 
 
 The evil being not in the thing, but in the appetite for it, you cannot by 
 law, destroy or remove this thing of lawful possession, in order to destroy 
 the appetite for its abuse, with any more right than you could destroy or 
 remove all personal property, to prevent robbery and theft. You cannot 
 punish the propensity to do wrong until wrong is done. You cannot de- 
 prive one man of his lawful rights, because his possessing and using them 
 may tempt another man to sin, The tendency to crime, while generating 
 in the mind — the propensity or the habit of not unlawful indulgence — are 
 not subjects for penal laws, but for moral influences. So also is the appetite 
 or habit, connected with the moderate use of ardent spirit, while generat- 
 ing the vice of intemperance. It is an evil, but like many other evils, be- 
 yond the reach of a statute. Hence we say, in the advancement of tem- 
 perance, which depends on the control of appetite, on voluntary absti- 
 nence ; trust to the voluntary principle, or you can establish nothing per- 
 manent. Rely on moral influences and enforce no law beyond wholesome, 
 reasonable, just and uniform regulations. 
 
 This is the distinction we take between the laws of regulation of two 
 hundred years standing, and this new law of prohibition ; and if these posi- 
 tions are sound in matters of legislation, it follows that this law ought not to 
 be tried at all as an experiment, to see whether it will fail or succeed. We 
 deny the moral or constitutional right of the General Court to make experi- 
 ments in legislation, trenching on fundamental rights, merely to test a 
 doubtful theory whether the lawful appetites of a particular class of citizens 
 cannot be exterminated by force of law. 
 
 We object to this law as useless and overmuch legislation ; the first in 
 the revival of that series of personal restraints imposed under the Colonial 
 system of Blue Laws, which sought to enforce by penal enactments, 
 sanctimonious observances, and tic up every domestic and private indul- 
 gence. I
 
 16 
 
 We oppose i; as a dangerous legislative premium held out to ultras in all 
 t he extremes of moral doctrines and reforms of the day, to get up combi- 
 nations and sects, in order to control legislation and press their particular 
 creeds into the form of law. 
 
 We oppose it because it assumes as a principle of legislation, that sin, 
 evil, exists in the inert object that may be abused to sin, and not in pro- 
 pensity and the human heart, and thus carries legal coercion over the line 
 of voluntary morality. 
 
 We oppose it because it creates an artificial crime in order to punish it, 
 and by a monstrous absurdity in law and morals, makes one half of an act 
 which cannot be consummated without tho consent of two parties, a crime 
 in one, and no offence in the other. 
 
 The Law is Inexpedient, as well as Absurd and Unjust. 
 
 It is inexpedient even if it could be enforced. 
 
 It is inefficient, for it cannot be enforced. 
 
 Regarded, then, by the test of every fundamental principle in free gov- 
 ernment, this statute is wrong in law, wrong in morals, wrong as it effects 
 private rights, and wrong as applied to principles of human action. 
 
 ft Involves a neiv Principle in Legislation, Prohibition, as Applied to 
 the Sale of Property for Lawful Uses, 
 
 The use as a drink is not yet made a crime, and yet the selling of it 
 for such use, is declared an offence, punishable by severe penalties. The 
 prohibition is not applied solely to that portion of the property which may 
 become unfit for use, as is the case in the prohibition of sales of spoiled 
 provisions and adulterated liquids, but is extended to the whole article in 
 its purest state. No legislation on this principle, has ever before been 
 applied to this or any other article of merchandize. 
 
 No Former Law ever Abolished the Sale in any Quantity for any Use. 
 
 It only regulated houses and occupations as a restriction of police, and 
 limited the number of sellers, not the quantity in which the buyer should 
 be compelled to purchase, or not at all. 
 
 The utmost extent to which any former law, through a period of two 
 hundred years, ever went in prohibiting the sale for use, was to make it 
 penal to sell to the drunkard who abused the use. This law makes it a 
 crime to sell to the most temperate user; and if it be sound in principle, 
 that principle should be extended to the sale of every article of luxury or 
 use which is susceptible of being abused to the injury of the buyer ; be- 
 cause, if alcohol, which may be dispensed with in society, and which may 
 be abused, is to be prohibited in its moderate use because its use results in 
 more injury than good, then every article of luxury, pride or indulgence, 
 which tempts to excess in any one class of society, must be prohibited, in 
 order to prevent crime by removing temptation. 
 
 It does Involve a New Principle. 
 
 The attempt of the advocates of this law to deny that it involves a new 
 principle of legislation, shows that they dare not test it on its true basis, 
 but find it necessary to deceive the people into a belief that it is in fact 
 just like the old laws on this subject. Why then did they ask for a new 
 law, if they do not want to enforce a new principle ?
 
 17 
 
 Ths Old Law Regulated Occupations and Trades. 
 
 The law of '32 was a iaw of regulation as to trades and occupations. It 
 provides (chap. 47 Revised Statutes,) that " no person shall presume to be 
 an Innholder, common victualler, or seller of wine, brandy, rum, or any 
 other spirituous liquor, to be used in or about his house or other buildings, 
 unless he is first licensed as an Innholder or common victualler, according 
 to the provisions of this chapter, on pain of forfeiting one hundred dollars." 
 "And if any person, not licensed as an innholder or victualler, shall sell any 
 wine or spirituous liquor, or mixed liquor part of which is spirituous, to be 
 used in his house, he shall forfeit twenty dollars." The license also pre- 
 scribed the particular place " where the licensed person shall exercise hia 
 employment." 
 
 It is, therefore, the use in the house and the specific employment which 
 were regulated, and not the sale forbidden, under the former law. It 
 applied the restriction or regulation to a particular place in which a cer- 
 tain occupation might be carried on, but did not assume to abolish the 
 occupation or to confiscate the property, in its ordinary use. 
 
 The new law prohibits, and is nothing but prohibition. 
 
 The new law is solely and exclusively a law op prohibition. It as- 
 sumes to legislate on this property, (which is as much an article of lawful 
 merchandize as are teas, coffee, or cloths,) by a special act, applied to no 
 other property, and its only legislation is prohibition. 
 
 This is obvious from a single consideration. This act virtually repeals 
 all others on the same subject, and will be found so in practice, because it 
 is inconsistent with all other acts. Strike it out, and there is no law of 
 prohibition affecting this article of property more than any other subject of 
 sale and transfer. The act does not authorize the sale of fifteen gallons 
 and upwards, because without it the sale of that quantity would be gov- 
 erned by general laws, as the sale of molasses or vinegar is. 
 
 It follows that the entire and sole operation of the law is to prohibit the 
 sale under fifteen gallons, and of course the whole intent of the law is to pro- 
 hibit, for without it there would be no prohibition under fifteen gallons, 
 and with it there is none over. 
 
 Self contradiction of the supporters of the law. 
 
 The disingenuousness of the attempt of the supporters of the law to dis* 
 claim the doctrine of prohibition in this Statute, which they now find to be 
 odious as a new and dangerous principle in legislation, is the more appar- 
 ent from the fact, that the very prohibition they now deny, was the entire 
 thing they asked for when this law was forced through the Legislature by 
 a sort of surprise. 
 
 The Memorial asking for this law, signed by the same men who now 
 deny that prohibition was the intent, and is the principle of the act ; prayed 
 the Legislature " that all laws authorizing the sale of intoxicating liquors 
 may be repealed, and that such sale may be made penal." 
 
 The Committee who reported the law which grew out of that application, 
 say that " this proposition suggests the repeal of laws which have existed 
 from the earliest period of the history of the Commonwealth," — that "the 
 inefficiency of these laws to restrain the improper traffic in spirituous liq- 
 uors has arisen from the fact that they have professed to regulate, but not 
 to prohibit the sale. The laws have not limited the quantity to be sold, 
 but only the persons who should be permitted to sell them. The modifica- 
 tion of these laws, which the Committee propose, is the prohibition of the 
 sale of spirituous liquors as a beverage." 
 
 [House Document for 1838, No. 53-1 
 3
 
 18 
 
 Here then, those who asked fur the law and those who reported it, de- 
 clared that their object was to introduce a new principle, never before em- 
 braced in the legislation of two hundred years on this subject, viz : the 
 substitution of prohibition in certain drinks, instead of the regulation of 
 particular occupations and employments. Instead of the uniform regula- 
 tion of places, they apply a direct disqualification as to sale and transfer, to 
 an article of lawful acquisition and property. If this is not a new principle 
 in legislation, there can be no new application of penal laws to any acts 
 heretofore lawful. 
 
 Test it by this one fact. For two hundred years there has never been a 
 law in existence which deprived any citizen, rich or poor, of the right to 
 buy his money's worth of this species of property, for any use he chose to 
 put it to. This law assumes todeprive him of the right, under any cir- 
 cumstances, to buy, except for uses prescribed by law, the quantity he may 
 want, or which he may have the means to purchase, unless he can com- 
 mand a certain amount of property or credit. 
 
 Comparison with the Game Laics. 
 In this it partakes of the odious principle of the privileged game laws of 
 Great Britain, which require a property with an income of<£100 per annum 
 to enable a man to shoot a partridge, or "being the son and heir of an 
 esquire or person of superior degree." Just so this odious law affecting ap«- 
 petite, requires that in order to be qualifiad to drink rum and brandy, a 
 man must possess sufficient property to be enabled to expend ten or fifteen 
 dollars at a time, when the value of as many cents may be all he wants, or 
 he must be the son and heir of " an esquire or person of superior degree." 
 
 The Law as Applied to Employment. 
 
 The law is alike unjust and dangerous in its principle of prohibition, if 
 applied to trades and occupations. To abolish a trade which has existed 
 two hundred years, and is sanctioned by the laws and treaties of the United 
 States, or to take this trade from one class and give it to another by law, is 
 surely a new and dangerous principle in legislation. No trade can rightly 
 be abolished that is not a nuisance, and even then it can only be restrain- 
 ed. So that there can be no greater absurdity than to contend that a trade by 
 retail in a particular article of lawful property is a nuisance, but its whole- 
 sale no offence whatever, and that, therefore, the first must be prohibited 
 and the last allowed ! 
 
 * Justice Blackstone, in hia Commentaries, says of these game laws, that they are 
 founded on the most unreasonable notions as to property, and are productive of tyranny 
 to the common people— a bastard slip of special legislation. In King John's time 
 these forest laws were so warmly kept up that they occasioned many insurrections. 
 
 The parallel between the game laws of England and this fifteen gallon law of Mas- 
 sachusetts, holds good in other particulars. Blackstone says of the former, that this 
 offence, which is constituted by an act of Parliament, is of a very questionable nature, 
 and yet it is an offence which the sportsmen of England seem to regard as the only 
 matter of general national concern, associations having been formed all over the jiing- 
 dom to enforce the law upon all persons, unless they be people of such rank and for- 
 tune as the law docs not reach. But those indigent persons who violate the law with- 
 out having such rank or fortune, are severely punished, and these punishments are im- 
 placably inflicted by petty tyrants, who are raised up like little Nimrods in every ma- 
 nor. He adds, that the only rational footing upon which rural sports can be consid- 
 ered as a crime, is that in low and indigent persons it promotes idleness and takes them 
 away from their proper employments, which is an offence ao-ainst the public police and 
 economy of the commonwealth ! [4. Blk. Com. 174, 415, 423.] This is just the sort 
 of rational footing upon which the fifteen gallon law is placed ; viz. that it indulges 
 the rich and enables them to control the appetites of the laboring classes, for fear that 
 they should be idle, and thereby become chargable to the " esquires and persons of 
 superior degree," who can enjoy their fifteen gallons and their choice wines at their 
 leisure !
 
 19 
 
 It it a Retrograde Movement in Liberty. 
 It is another grave objection to this law, that it is a retrograde movement 
 in the principles of free and liberal legislation. It goes back for precedents 
 to the worst laws under the worst administrations of government. No lib- 
 eral or enlarged act of legislation is ever cited in its support; but the old 
 Colony Blue-Laws, of the deepest color, and the most questionable acts of 
 our existing code, are the only parallels that can be found to prop it up. 
 
 The Old Colony Laws all Licensed. 
 
 But all the Colony laws, from 1633 and 1645, down to the adoption of 
 the Constitution, merely regulated the places where the trade might be car- 
 ried on, but did not abolish it in any quantity or for any use. No law ever 
 existed, before this, that did not license for any use, or that prohibited the 
 sale in any quantity for any use except by unlicensed persons. The oldest 
 law on record upon this subject, that of 1633, enacted that " the person in 
 whose house any were found or suffered to drinke dnaikc, be left to the 
 arbitrary fine and punishment of the Governor and Council, according to 
 the nature and circumstance of the same." [Old Colony Laws, page 31.] 
 
 This law was at least just and equal, for it applied to the " esquires and 
 persons of superior degree,'' as well as the poor man ; but it would not 
 suit our modern reformers in their private or public entertainments. 
 
 There is, however, one law, precisely in point, of which our opponents 
 should receive the full benefit in their research into the arbitrary and ab- 
 surd enactments of Colonial legislation. It was passed in 1661), and was 
 known as " the gentleman's act," — and was to this effect : though even this 
 law protected the licensed dealer in any quantity. 
 
 " It is enacted by this Court, that henceforth no persons shall have liberty to bring 
 any liquors into this government for themselves or others, to give or sell, but such aa 
 are licensed, more than for their own particular use, which shall not exceed six gallons 
 . in the year; and each man's that is so brought in, shall be distinct in vessels one from 
 another, and in case any do, it shall be forfeit or the value thereof. But if it appear 
 that any man of quality whose condition calleth fur further expense in his family, that 
 then this law shall not rkach them : only this is to be understood that under 
 pretence of this hee shall not give or sell to be carried abroad, except it be soe that 
 the ordinary keepers have none to supply the necessities of lliem that are sick." 
 [Colony Laws, page 1G5 ] 
 
 This is the exact prototype of the present law, its very form and pres- 
 sure, except that your law is more illiberal and aristocratic, for it will not 
 allow the man of moderate means and appetite to provide six gallons or less, 
 but cuts him off, and says, "that if it appear that any man of quality whose 
 condition calleth for further expense in his family, wants wine, or fifteen 
 gallons of spirits for his annual supply, then this law shall not reach him!" 
 
 Restrictions on Domestic Rights. 
 
 But if the Colony laws are to be cited as good precedents for this act, 
 they are equally valid in other arbitrary restrictions upon individual and 
 domestic rights, and where would that lead us in legislation? By this 
 rule the importation of tobacco might be prohibited and its use punished. 
 [Colony Laws, pages 59. 70, 87, 25:2.] So " if any shall make any mo- 
 tion of marriage to any man's daughter or mayde servant not haveing first 
 obtayued leave and consent of the parents or master so to doe, shall be 
 punished by fine or corporal punishment." [p. Gl.] " And whoever shall 
 inveigle or endeavor to steal the affections of any man's daughter, pupil or 
 maid servant without his consent, he shall be punished by fine of five 
 pounds or corporal punishment." [p. 272.] 
 
 In the same spirit, it was enacted that no single person should live by 
 himself or in any family but such as the Selectmen approve, and families 
 were to be periodically inspected by selectmen ; a provision, by the way, 
 that may be very necessary in the enforcement of this fifteen gallon law, t< 
 
 /
 
 t 20 
 
 ascertain to what ases the liquor bought of apothecaries ic put in the domes- 
 tio arrangementa of the purchaser. 
 
 The Colony had Unlimited Powers — the State has not. 
 The prominent distinction between the Colony Laws, touching this 
 species of property called spirituous liquors, and State Laws, is this. That 
 the General Court of the Colony had unlimited power to prohibit importa- 
 tion as well as sale or use, there being no paramount revenue laws ; while 
 the State has no power to prohibit importation and sale under the supreme 
 laws and treaties of the United States, and may virtually nullify these laws 
 if it can do indirectly what it cannot do directly, abolish the importation 
 by prohibiting the sale. 
 
 Laws under the State Constitution, and Effect of the United Stales 
 
 Constitution. 
 
 Up to the period of the adoption of the Confederation of the States in 
 1778, each State had unlimited power to prohibit the importation of any 
 article of commerce. The Confederation took from each State any power 
 to lay imposts or duties that should interfere with treaties made by Con- 
 gress. The Colony of Massachusetts Bay had enacted laws regulating 
 the sale of ardent spirits, wine, beer and cider, in 1645, 1695, 1698, 1712, 
 1761, 1763. But not one of these laws ever prohibited the sale in any 
 quantity or for any use; and instead of preventing its importation, as they 
 then had power to do, we have seen that in 1777 they encouraged impor- 
 tation and prohibited the carrying of rum out of the State, because there 
 was no more in it than was needed for the army and the inhabitants. 
 
 In 1780 the State Constitution was adopted, and the first law after that 
 was the act of 1786, " for the due regulation of licensed houses." This 
 act was one of regulation merely, and did not prohibit the sale of the 
 smallest quantity for any use. It applied, as all similar laws ever had 
 done, to employments and places, which were taxed and regulated ; and 
 not to persons or property, as the present law does. 
 
 In 1788 the United States Constitution was adopted, which gave to Con- 
 gress the exclusive regulation of commerce with foreign nations and araonc 
 the several states ; and decreed that the laws and treaties of the United 
 States, shall be the supreme law of the land, and the Judges in every state 
 shall be bound thereby, any thing in the Constitution or laws of any state 
 to the contrary notwithstanding ; and the State Judges shall also be bound 
 by oath to support the United States Constitution. 
 
 From this time the regulation of the commerce of the people of Massa- 
 chusetts with foreign countries and other States, in alcohol as well as other 
 merchandize, was exclusively vested in the United States; and from that 
 time, until the law of 1838, no act of prohibition interfering with the im- 
 portation by prohibiting the sale in any quantity or for any use, was ever 
 passed.* Acts have been passed on this subject since the adoption of the 
 United States Constitution, in 1792, 1813, 1818. 1831 and 1832, but they 
 wereall acts of licensing for sale, without any restriction in quantity or use, 
 and went to promote and not to prohibit the sale of lawful property lawfully 
 imported, under the Supreme Laws of the United States. 
 
 The present law is virtually, though indirectly, assuming the whole 
 power affecting the article of merchandize in question, which the State 
 would have had, if no concession of power had ever been made to the 
 United States; for if the State can pass laws to abolish the sale of an arti- 
 cle, it thereby abolishes the importation. If it can abolish it in part, it can 
 in whole. 
 
 _ * Judge Story says, in New-York rs. Milne, 11 Peters 107, — "Uie p<nver to regulate 
 commerce given to Congress, is exclusive, an d not concurrent with the States.
 
 21 
 
 This Law Assumes Universal Guardianship over Private Mural Agauy. 
 
 The only prohibition introduced into former laws, was the prohibition of 
 sale to drunkards, spendthrifts, &c. whose health, in the opinion of the 
 Selectmen, was injured by abuse. This was founded on the principle of 
 guardianship, and applied only to individual cases, upon positive evidence 
 in each case, where moral agency had been subverted by the vic« of the 
 party put under guardianship. If the Selectmen made this restriction upon 
 any individual without cause, they were liable in an action for damages. 
 It did not punish for fear a man would do wrong, but punished and disqual- 
 ified only for the wrong done. The present law assumes that all p oar men 
 are incapable of self-control, and puts them under a general guardianship 
 before a single act of indiscretion is committed. It says that because some 
 men who cannot buy fifteen gallons may do wrong, therefore all men of 
 limited property, shall be deprived of the free agency of choosing between 
 right and wrong in this matter. 
 
 In a word, all former acts established no direct monopoly, gave no exclu- 
 sive privi-leges, nor applied any disqualification to lawful property. They im- 
 posed a tax on those who should choose to exercise a particular trade or 
 calling, as a law of excise, and they regulated the places in which it.should 
 be carried on, as a law of police. The present law forbids the sale of law- 
 ful property by any person, for ordinary uses, and permits none but a par- 
 ticular profession, who never sold it before, to sell it in ordinary qualities, 
 for any use whatever.* It is neithzr a law of excise or police, but sheer 
 arbitrary power ! 
 
 It is Wrong as a Laio of Prohibition, because it is Partial. 
 It is plain, then, that this act oversteps regulation and becomes prohibi- 
 tion. As a law of prohibition, (even conceding the power to make it,) it 
 must be equal and consistent, for it can be justified only on the plea of 
 necessity as above all law, viz : that the evil is so great the common good 
 demands prohibition. To be consistent and equal then, it must be univer- 
 sal. That is, if the Legislature has the power to prohibit an evil, by 
 trenching on individual and property rights, it is unjust to apply the pro- 
 hibition to any class of society, or to one cause of the evil, and tolerate it 
 as to the rest. If. therefore, intoxication be the great evil, and the Legis- 
 lature is bound to prevent it by prohibiting the sale of the cause of intoxi- 
 
 * Chief Justice Parker says, " The Legislature for thirty years lias exercised the 
 right of exacting a sum of money from Attorniesand Barristers at law, vendue masters, 
 tavern keepers and retailers, which has been applied to the privilege of using particular 
 branches of business or employment, such as an auctioneer, Attorney, tavern keeper, or 
 retailer of spirituous liquors." [And he adds, which shows how much wiser some 
 people affect to have grown who ridicule the claim of natural right set up by the Me- 
 morialists against the prohibitory law.] " For every man has a natural right to exer- 
 cise cither of these employments free of tribute, as much as a husbandman or mechanic 
 has to use his particular calling." [12 Mass. Hep. 250, case of the Pc. (land Bank ] 
 So that, according to the views of the Supreme Court in that case, the Legislature has 
 the same right and no more, to tax the employment of a farmer or mechanic, as of an 
 attorney, auctioneer, tavern keeper or retailer of spirituous liquors; and if there is the 
 same right to tax one as the other, there must be the same right, and no more, to pro- 
 hibit the one as the other. Unless, then, the Legislature has power to decree that no 
 farmer shall sell less than fifteen bushels of grain or fifteen pounds of pork to be used 
 for food ; and. that no mechanic shall build a house for vsc as a dwelling that costs 
 less than i$l 5.000 ; it follows, by the above decision, that the Leo-isature has not power 
 to prohibit the sale of any other species of property for its ordinary uses. The Consti- 
 tution has no where made any distinction in I lie general protection of all lawful prop- 
 erty, and unless the contrary is shown from the Constitution, the reasoning of Chief 
 Justice Parker is conclusive against the power, now for the first time in our history 
 attempted to be used by the Legislature in proscribing a particular employment which 
 the supreme laws of the United States sanction ; and in singling out a particular de- 
 scription of lawful property for confiscation or disqualification.
 
 22 
 
 cation; that prohibition to be just and equal, must be universal &a to all 
 classes of men and all descriptions of intoxicating beverage. 
 
 There is no necessary limit up to fifteen gallons. The pretence that the 
 Legislature could not go farther, is utterly false, if it be true that they 
 could so so far. There is nothing in the United States laws to limit the 
 power to prohibit fifteen gallons any more than fifteen thousand gallons. 
 This prohibitory law of 1838 says, that no person shall sell in less quantity 
 than fifteen gallons, thus including the importer as well as retailer. But 
 all agree it is void as to the importer. He may sell to the next of hand, 
 and cannot be restrained but by the laws of Congress. 
 
 The ground taken by the supporters of the law then, is, that when the 
 property passes from the importer, it becomes subject to all State regula- 
 tions affecting internal commerce, and cannot be reached by the laws of 
 the United States. It must follow, if this be sound, that if the State has 
 power to abolish internal commerce as to fifteen gallons, and as to rum, 
 brandy, and spirituous liquors, it has power to abolish this commerce en- 
 tirely, as to any quantity, and as to any articles of property. The assump- 
 tion of State power, therefore, if good for fifteen gallons of brandy, is good 
 for every description and quantity of liquor, and for every kind of prop^ 
 erty (hat is the subject of sale ; so that it amounts to an omnipotent power 
 in the Legislature over the internal commerce of the citizens of a State, 
 to prohibit the sale and transfer of any and every kind of property between 
 man and man, except barely from the importer to the next buyer, who may 
 buy but cannot sell again. 
 
 The power, then, being supreme, if it exists at all, why is it limited to 
 fifteen gallons, and why confined to alcohoi in spirits, and not extended 
 to alcohol in wines, cordials, and fermented liquors? If the Legislature 
 has supreme control over any article of importation the moment it passes 
 out of the hands of the importer, it can stop its transit from the purchaser 
 to another in any and every quantity, whether it be a cask of brandy or a 
 bottle of wine, a bale of goods or a yard of muslin. 
 
 The power, then, if it exists at all, to prohibit sale of a lawful property 
 from citizen to citizen, must be supreme and unlimited. It follows, there- 
 fore, that having the power of entire prohibition, if it have any power to 
 prohibit at all, this prohibitory law, which denies the sale in small quanti- 
 ties and permits it in large, and applies only to the drink of men of 
 small means and not to that of the rich : is not only a palpable violation of 
 equal rights and equal laws, but is false in its sole pretence of right, viz : 
 the common good ; for it is worse than folly to pretend, as this law does, 
 that it is for the common good that men should not get drunk on rum, 
 brandy and gin, but is for the common good that they should be allowed to 
 get drunk on wines, cordials and fermented liquors — that it is for the com- 
 mon good to restrain men who cannot buy fifteen gallons at a time, and is 
 not for the common good to restrain wealthier men who have the means to 
 buy that quantity at pleasure ! 
 
 Plainly, then, if argument can amount to demonstration, the law is 
 wrong as a law of prohibition. It is either too 7)wck, and therefore uncon- 
 stitutional, because it violates the rights of property, or is too little, and 
 therefore unconstitutional, because it violates the equal rights of the citizen. 
 
 The question of Constitutionality. 
 
 This I have touched upon, in general terms, under the preceding branch 
 of the argument. Let us apply it more directly, — first, to the Constitution 
 and Laics of the United States. 
 
 These are supreme, and must govern our State Legislatures in making,
 
 23 
 
 and the Courts in enforcing laws. The sixth article of the Constitution 
 of the United States declares that 
 
 " The members of the several State Legislatures, and all executive and judicial offi- 
 cers of the several States, shall be bound by oath or affirmation, to support this Consti- 
 tution." And that " the Constitution, Laws, and Treaties, of the United Slates, shall 
 be the supreme law of the land, and the Judges in the several States shall be bound 
 thereby." 
 
 These supreme laws authorize the importation into this State of alcohol, 
 on the same terms, and with the same rights, that clothes, teas, or any 
 article of lawful property and foreign commerce may be imported. 
 
 First then, there is no power in this State, to prohibit or prevent the 
 landing of this article at our wharves, its entry at the Custom House, and 
 its being stored in the warehouses of our citizens. 
 
 Second, it is admitted on all hands, that when the property is so intro- 
 duced, and the right of introducing it has been paid for by the merchant, 
 he has the right to sell it. The State has no power to impose on the 
 importer a single restriction, or a cent of tax or excise, in any form, to 
 interfere with his sale of the imported article to other citizens of the State. 
 The same privilege which extends to an importer from a foreign country 
 extends to an importer from another State. 
 
 But this law of 1S33 assumes to deny this right to the importer. It 
 walks right over the supreme laws and treaties of the United Slates, and 
 declares " no person shall sell" — thus assuming to prohibit the importer 
 from selling. , 
 
 All agree that in this respect the law is unconstitutional, and cannot 
 reach the importer. But it is admitted that the law may be unconsti- 
 tutional in one provision and constitutional as to the rest. 
 
 We thus have the demonstration that in passing this Act of 1838, the 
 Legislature did enact an unconstitutional provision, in one part of it, as to 
 importers; and this may well diminish our confidence in the wisdom and 
 integrity of the majority, in passing the rest of the law ; for if under the 
 stimulus of secret societies and combinations got up by bigoted men out 
 doors, to lobby the Legislature into this enactment, the majority consented 
 to violate the supreme law of the land in one particular, why may they not 
 have done so in other respects? 
 
 What are the rights of the Importer ? 
 
 The point then, is established, that the rights of the Importer, se- 
 cured by the supreme law of the land, cannot be infringed by the laws 
 of a State. 
 
 What are these rights 1 Why does the importer import and pay duties 
 to the Government ? Not to keep, use or store the article himself, but to 
 sell it. The right to import then carries with it the right to sell. 
 
 What is the right to sell? It cannot exist in the seller without the 
 right in others to buy. Any restriction on the right to buy, is a restriction 
 on the right to sell. The buyer who buys for consumption, wishes to buy 
 in quantities to meet his convenience and his demand for consumption. 
 If he is compelled to buy more than he wants or can afford, he is obliged 
 either to violate the law or go without, while his richer neighbor is fully 
 supplied. 
 
 The buyer who buys to sell again, will only buy on condition that he 
 can sell in quantities to meet customers generally ; or in such quantities 
 as a great proportion of consumers wish to buy. He then, must either 
 violate the law, or must sell only to that paiticular class who have the 
 means to buy more than they want at a time,
 
 24 
 
 It follows conclusively, that this law, (if enforced,) would be a positive 
 restriction on t lie importer. He imports to sell ; but none will buy of him 
 if they cannot sell again : consequently, to deny to the purchaser from the 
 importer the right to sell, is a denial of sale to the importer himself. 
 
 Now, has the State law a right to deprive the importer of the market 
 which he pays his duties to the United States for enjoying? Look at 
 this fairly. 
 
 Heretofore, (ever since 178S, when the Constitution of the United States 
 was agreed to,) the importer in this State could sell to all, in any quantity. 
 All would buy because they could sell again, or consume in any quantity 
 they chose. Now, under this law, (if enforced,) the importer can sell 
 only to those who buy to sell again or to consume, in fifteen gallons at a 
 time. The importer, (if the law is carried out,) would thus lose nine- 
 tenths of his customers, and thus importation which is guarantied by the 
 supreme laws of the land, would be prohibited nine-tenths by a law of 
 the State. 
 
 If the State can cut off all the buyers under fifteen gallons, it can all under 
 fifteen thousand gallons; because if the restriction of fifteen gallons is 
 construed to apply only to internal State commerce, then the State is 
 omnipotent in its power over that commerce, and can entirely prohibit 
 traffic in the article between its citizens. If it can destroy the traffic 
 between its citizens, it of course destroys importation, for it is imported 
 only because it is trafficked in between citizens of the State. 
 
 Again ; if the State can apply this prohibition to one article of com- 
 merce, (alcohol) it can to all articles of merchandise whenever a majority 
 of the Legislature happen to believe that the use of any such article may 
 be injurious to the citizens 
 
 What then becomes of the poivcr to regulate commerce, which this State 
 has solemnly ceded to the United States? Why do you go to Congress for 
 tariffs, when you can make your own tariffs at pleasure, if this law be 
 constitutional ? 
 
 You want to build up home manufactures ; you say it injures home 
 industry to have foreign fabrics in our market. Just pass a law that no 
 cotton, woollen, or silk goods, shall be sold in less quantities than fifteen 
 pieces. Enforce such a law, and who will buy of the importer, or who 
 will import ? A State may, on this doctrine, usurp the whole power of 
 Congress, and take back all it conceded in the Constitution. 
 
 Wliat is the effect on Treaties ? 
 
 The public faith is violated, if this law be established. The United 
 States has made treaties with France, Great Britain and Holland, opening 
 our markets to their brandy, rum, and gin, the same as to other articles 
 of commerce. These markets are only in the States. Now this State law 
 assumes the power to shut up those markets, and thus nullify these treaties. 
 It says to these foreign traders, "you may send your merchandise to our 
 wharves, but we will pass laws to prevent our citizens buying it?" 
 What is this but in effect, assuming the whole control over foreign com- 
 merce, by shutting up the market, and thus violating the national faith 
 pledged in treaties, by making those treaties of no effect? 
 
 What becomes of the oath of Legislators to support these treaties, if 
 they can thus evade them? Every man who voted for the fifteen gallon 
 law knoics he did it to cut off the market for importation, and to prevent 
 trafic in alcohol. This is the avowed object and aim of the law. He 
 knows too, that under his oath, he has no power to do this directly, for that 
 power is given to Congress. Will he pacify hi3 conscience by doing indi- 
 rectly, what he has sworn not to do directly 1 The end and aim of all
 
 25 
 
 treaties of commerce, and all laws of importation are to secure a market,- 
 When the United States has done this in good faith, shall a State shut 
 up the market by law, and annul all treaties and all laws regulating impor- 
 tation, by annulling sale between its citizens? 
 
 If this is not bad law, there is bad faith in such a proceeding, at which 
 honest and high minded men should stop to consider gravely, how much of 
 moral obligation they have got to violate, before they can enforce this law 
 of pretended moral reform ! 
 
 Effects of this law on the Revenue Laws of the United States. 
 
 The intent of this law is to prevent or diminish importation, and there- 
 fore it is a manifest violation of the 8th section, article 1 of the Constitution 
 of the United States; of the concessions of the States to the power of Con- 
 gress, to raise a revenue upon imports into the United States, and of the 
 laws and treaties made by the United States. 
 
 The decisions of the United States Supreme Court, and of the Supreme 
 Court of this State, bear out this view of the case. In Brown vs. Maryland, 
 [12 Wheaten 439] the question was, whether the State of Maryland, 
 could impose a tax on importers of clothes, rum, brandy, wines, &c. The 
 Court decided it could not. Why? because it would concede to the States 
 a power to annul their concessions to Congress in regulating commerce and 
 raising a revenue. 
 
 Congress has the whole power to tax imposts and to raise revenue on 
 commerce. Why was this conceded by the States ? Clearly that the reg- 
 ulations might be uniform ; that no one state should be able to shut up its 
 market to any article of commerce, or to prohibit its importation by taxes, 
 or by any obstructions that should prohibit its sale. 
 
 This is manifest, from the fact, that no goods are made dutiable unless 
 imported with the intention, and for the purpose of sale. This is what 
 the importer pays the United States Government for, — the right to sell. 
 Having bought the right, shall he be deprived of it, directly or indirectly 
 by state legislation ? 
 
 The privilege of importing, and the privilege of selling, are indissolubly 
 connected. The right to sell is a necessary incident to the right of 
 importing. The grant of a privilege to import would be of no value un- 
 less it also conveys a right to sell. Deny to the importer the right to sell, 
 and importation necessarily ceases.* 
 
 This doctrine is clearly sustained in the decision in Brown vs. Maryland. 
 Chief Justice Marshall says : 
 
 " Why are the States restrained from imposing 1 duties on imports or exports ? 
 Plainly because it was believed that the interest of all would be best promoted by 
 placing that whole subject under the control of Congress. Whether the prohibition to 
 "lay imposts or duties on imports or exports," proceeded from an apprehension that 
 the power might be so exercised as to disturb that equality among the States, which 
 was generally advantageous, or to confer the source of revenue on the Government 
 of the Union, it is plain that the object would be as completely defeated by a power to 
 tax the article in the hands of the importer, the instant it was landed", as by a power 
 to tax it while entering the port. There is no difference, in effect, between 
 
 THE POWER TO PROHIBIT THE SALE OF AN ARTICLE AND TllE POWER TO PROHIBIT ITS 
 INTRODUCTION INTO THE COUNTRY. The ONE WOULD BE A NECESSARY CONSEQUENCE OF 
 THE OTHER. NONE WOULD BE IMPORTED IF NONE COULD BE SOLD." 
 
 I pray you to mark the reasons of this decision of the Supreme Court 
 of the United States ! It denies to a State the power to impose a tax upon 
 importers or upon imported goods in their hands, which was the extent 
 of the case before it. Why 1 Because this tax might be such aa to defeat 1 
 
 *See Mr. Meredith's logical argument in Brown vs. Maryland. 
 
 4
 
 EhSt concession of the States which has given u the source of revenue" to 
 the United States. And why would such a power m a State defeat the 
 revenue power in the United States ? Because of the fact that sale and 
 importation are cause and effect. Take away the first, and the last ceases 
 to exist 4 power to prohibit the sale of an article is a power to prohibit 
 its introduction. This last power no State has, and therefore it cannot 
 have the power to prohibit sale. If, as the Supreme Court says, in Brown s 
 ease it will not permit the power of Congress to raise a revenue, to be 
 defeated by a power in a State to tax an article of import in the hands of 
 the importer, the instant it is landed, will it permit that power to be de- 
 feated still more effectually, by a State law that prohibits the sale of the 
 article after it goes out of the hands of the importer, and thus annihilates 
 importation and revenue together? 
 
 The whole ground then, on which a State is denied the power to tax 
 imports or importers, is, because it might raise that tax so as to render it 
 impossible to sell at a profit, and thus destroy importation by destroying sale. 
 
 This is the whole reasoning in Brown vs. Maryland, and Judge Story 
 re-affirms it in New-York vs. Milne, 11 Peters, 160; where he dissented 
 from the rest of the Court. He says, that in Brown's case 
 
 " It was argued, that the act requiring a license (of the importer) did not reach the 
 property until after its arrival in the State ; that it did not obstruct the importation, 
 but only the sale cf the goods after importation ; but the Court said, 'there is no dif- 
 ference in effect, between the power to prohibit the sale of an article, and the power to 
 prohibit its introtluctio?i into the country. The one would be a necessary consequence 
 of the other. None would he imported >f?wnc could be sold." * 
 
 Judge Story adds, (as his own opinion,) that " the result of the whole 
 reasoning is.', that whatever restrains or prevents the introduction or impor- 
 tation oi' goods into the country, authorised or allowed by Congress, whether 
 in the shape of a tax or other charge, or whether before or after their 
 arrival in port, interferes with the exclusive right of Congress to regulate 
 eommerce." 
 
 Chief Justice Marshall, in giving the opinion of the Court in Brown's 
 case, also says :■ — 
 
 " It is obvious that the same power which imposes a light duty, can impose a very 
 heavy one ; one which amounts to prohibition. If it may be exercised at all, (by a 
 State,) it must be exercised at the will of those in whose hands it is placed. If the tax 
 may be levied in this form by a State, it may be levied to an extent which will defeat 
 the revenue by impost, so far as it is draicnfrom importation into the particular States." 
 
 Apply the whole of this reasoning against the prohibitory power of the 
 States, to this law of 1838. What is the design of that law ? To restrain 
 importation by restraining sale. To prevent the introduction of alcohol 
 into this State, though it is one of the essential articles of commerce on 
 which the United States relies for revenue — to defeat the United States 
 revenue, so far as it is drawn from importation of alcohol into this State ! 
 
 Chief Justice Marshall says, if a State can impose a light duty on 
 imposts, it can a heavy one, amounting to prohibition. Therefore it shall 
 impose no duty whatever. For the same reason, if it can prohibit the sale 
 of an article of import under a given quantity, however small, it can pro- 
 hibit the sale of the article in any quantity, however large. If a State can 
 prohibit the sale of an article (say Chief Justice Marshall and Judge Story, 
 
 * A most extraordinary perversion of this decision was made by one of the counsel 
 in favor of the Law, before the Committee. He contended that it conceded the power 
 to the States to prohibit sale, and by consequence importation, when it expressly 
 denies such a power in a State.
 
 m 
 
 with the whole Court,) it can prohibit its introduction into the country 
 and thus defeat the revenue by impost in that Stale. 
 
 If one State has the power, all have it ; and all can shut up their mar- 
 kets to an article allowed to be imported by the laws of the United States. 
 If this can be done as to one article, it can be done as to all ; and thus the 
 States have the power to destroy all revenue derived from importations. 
 
 [In 1838, the whole amount, in value, of all articles imported into the 
 United States, was $113,717,404. Of this sum, .$60,860,005 in value, 
 were articles free of duty, leaving $52,857,399 in value, of articles 
 imported on which duties were charged for purposes of revenue. The 
 value of ardent spirits and wines imported in 1838, was *3, 795, 190 ; viz. 
 1,476,908 gallons of spirits, and 2,318,282 gallons of wine ; which is 
 13, 92-100, being a fraction less than a fourteenth part of the whole 
 revenue of the United States. So that if the States have the power, inde- 
 pendent of Congress, to destroy importation' of intoxicating liquors by pro- 
 hibiting the sale in their territories, they have the power of abolishing a 
 fourteenth part of the public revenue, thus leaving Congress at the mercy 
 of the States, in providing the sources of public revenue to meet the public 
 expenses. Can this be constitutional? Can such a power as this be con- 
 sistent with the power over revenue ceded to the United States ? Carry it 
 out, for if it exists in little it exists unlimited. Massachusetts, for instance, 
 may wish to prevent importation of alcohol, wine, tobacco, opium, and all 
 sorts of stimulants to intoxication or luxury, on account of morals; and 
 of all articles which she manufactures, on account of domestic industry. 
 South Carolina may wish to prohibit the manufactures of Massachusetts 
 on account of her objections to the Tariff. The Northern States may 
 conclude to prohibit cotton, rice, and tobacco, because they are raised by 
 slaves ; and the Southern and Western States may wish to shut out all the 
 fabrics, shoes, and products of the free States, unless they will put down 
 Abolition Societies.] 
 
 If this fifteen gallon law be constitutional, where is the restraint? All 
 these prohibitions of commerce between the states can be enforced by pro- 
 hibiting the sale of the articles between citizens of the respective etates, 
 and thus the great purpose of the Constitution and the Union, revenue and 
 uniform commerce, is at an end. 
 
 The only question that can be raised to evade the foregoing conclusions 
 is, whether a State can do indirectly what the Constitution prohibits it from 
 doing directly, — that is, whether, altholigh it has not the power to prevent 
 or restrain importation of an article, or destroy the revenue the United 
 States derives from it, by prohibiting the sale from the importer to his pur- 
 chaser, it can do the same thing by prohibiting the sale from that purchaser 
 to any other buyer? If a state can do this, it can effectually destroy the 
 importation of any article so prohibited, and deprive the government of the 
 market for the sale of that article, from the sale of which alGne is derived 
 revenue, by inducing importation. 
 
 Certain it is, that if the states have this power, as a branch of the regu- 
 lation of their internal commerce, they can, by state laws, prohibiting sale 
 between their citizens and in their respective territories, nullify the impor- 
 tation laws, and cut off all sources of the public revenue. To say that the 
 laws of the United States are not infringed by permitting the importer to 
 sell, while the state law prohibits the citizens from buying the article of 
 each other, is to affirm that the prohibition of the traffic between citizens 
 does_ not interfere with or restrain importation, and does not-diminish the 
 revenue that would otherwise be derived from such importation. 
 
 Now, as it is obvious that the prohibition to sell between citizens ramt 
 have this effect, and as that is its avowed object, and only possible beuGftt.
 
 28 
 
 it must follow that a law of prohibition is directly repugnant to the exclu- 
 sive power given to Congress to regulate importations into the states, 
 and to raise a revenue fiom such importations by their sale in the markets 
 of the states. 
 
 Distinction bctioccn the old and new law in this respect. 
 
 This makes a plain distinction between the former license laws of this 
 state, which merely direct and regulate the mode of selling by citizens of 
 the state, without restriction as to quantity, and the existing law, which 
 positively prohibits the sale in less quantities than fifteen gallons ; because 
 such a prohibition cannot be enforced without diminishing importation 
 and revenue, by diminishing consumption and sale in the market of 
 the State. 
 
 This doctrine is fully admitted in the case of the Commonwealth vs. 
 Kimball, decided by the Supreme Court of this State, under the former 
 law of 1832. The Court says, that in the exercise of the powers reserved 
 to the states, " they have the right and power to resort to all adequate and 
 appropriate means, for carrying these powers into effect, unless they shall 
 happen, in any particular instance, to come directly in conflict with the 
 operation of some law of the United States, made in pursuance of its enu- 
 merated powers." 
 
 The only question at issue in this case of Kimball, was whether the law 
 of 1832, requiring a license for the retail of spirituous liquors, was repug- 
 nant to the laws of the United States, authorising the importation of the 
 article, and raising a revenue thereon. The Court decided that "the 
 power to regulate licensed houses, and to provide for the regulation of the 
 sale of spirituous liquors, is an acknowledged power of the state government. 
 It is not to be presumed that the Constitution was intended to inhibit or 
 restrain the exercise of so useful and necessary a power, unless it shall so 
 appear by plain words or necessary implication. The burden is upon those 
 who would set up and enforce the restraint, to establish it by showing that 
 the Constitution, by particular provisions, or in the accomplishment of its 
 general purposes, necessarily interferes with it." And the Court adds, 
 •" that the objects to be accomplished by State regulation, are to be reached 
 and effected by any appropriate means, which do not interfere with the 
 exercise of any of the poioers vested in the General Government." 
 
 These powers are ; to provide for the importation of any article of 
 commerce into a State, and to rarse a revenue from such importation. 
 These are the "general purposes" of the Constitution in this particular ; 
 and they depend entirely upon the right to use the market of the State for 
 the sale of the imported article. 
 
 The law of 1832 did not necessarily interfere with these powers or pur- 
 poses, nor was it designed in its operation or effect, to diminish importation 
 or revenue. It encouraged and promoted the traffic between citizens. 
 
 But the law of 1838 does nothing but prohibit and discourage sale. It 
 regulates nothing, for its whole jurisdiction is confined to less than fifteen 
 gallons, and the sale of this it directly inhibits. If carried into effect it 
 must diminish importation directly, by abolishing demand and supply. It 
 is palpable therefore, that the power of Congress to raise a public revenue 
 from this source, is to be materially affected by the intended operation of 
 this law, should it be enforced. 
 
 "I cannot admit, (says Judge Story, in the case of New York rs. Milne) that the 
 States have authority to enact laws which trench upon the authority of Congress in 
 its power to regulate commerce." — It is no answer to say that the States will have too 
 much wisdom and prudence to exercise the authority to an injurious extent. Laws 
 were actually passed by New "Sork, New Jersey, and Connecticut, during the Steam 
 Boat controversy, which threatened the safety and security of the Union, and demon-
 
 29 
 
 strate the necessity that the power to regulate commerce among the Slates, should be 
 exclusively in the Union, in order to prevent the most injurious restraints upon it."* 
 
 Must it not be conceded, then, either thai this law does infringe upon 
 the importation and revenue laws of Congress, or that the public revenue 
 of the Union is entirely at the mercy of the States, which may annihilate 
 it whenever they choose to cut off importation by prohibiting sale between 
 their citizens and in their respective territories? 
 
 Such are the views I take of the repugnance of this law to the Con- 
 stitution, treaties, and laws of the United States. I must say, that I regard 
 them as deserving much graver considerations than they seem to have 
 received in this excited controversy. 
 
 This Law violates the State Constitution. 
 
 A state law may be constitutional as respects the United States Consti- 
 tution, and yet be a violation of the Constitution of the State, which is the 
 supreme law in the Commonwealth, that legislators, judges, jurors, and 
 citizens, are bound to obey in preference to any enactment by the General 
 Court. 
 
 The fundamental principles of the State Constitution which this law 
 violates, are, 
 
 1st , the unalienable right of acquiring and possessing property. Art.l. 
 
 2d. The right each individual of the Society has to be protected by it 
 in the enjoyment of property according to standing laics. Art. 10. The 
 guarantie that no part of the property of an individual can be jnstly taken 
 from him without compensation. 
 
 3d. The covenant of the social compact, "that all shall be governed by 
 certain laws for the common good ;" and "the duty of the people in framing 
 a Constitution, is to provide for an equitable mode of making laws." Pre- 
 amble. 
 
 4th. A frequent recurrence to the fundamental principles of the Con- 
 stitution, and a constant adherence to those of justice.. Art. 18. 
 
 5th. That no association of men have any title to obtain exclusive 
 advantages distinct from those of the community than what arises from 
 services rendered to the public. That government is instituted for the 
 common good, and not for the profit or private interest of any class of 
 men. [This last objection applies to the employment of Physicians as an 
 exclusive class or profession, who are to have the profit of the trafic taken 
 from the retailer and transferred to them.] 
 
 Effect on property rights, as to acquisition. 
 
 We have seen that alcohol is property, under the supreme laws of the 
 land, (the acts of Congress and the United States Constitution,) as much 
 as tea, coffee, clothes, or any article of merchandize. 
 
 There is no power in the State to prevent its being mixed up and incor- 
 porated with all other property a citizen has a right to acquire. This is 
 the condition of the cession made to Congress by all the States. 
 
 It being property subject to acquisition, and beyond the prohibition of 
 State laws, the State cannot pass a law that one class of men may acquire 
 and possess it, and another class shall not. The State may regulate the 
 means of acquiring property, but it must leave every citizen free to acquire 
 it in greater or less quantities, according to his means. 
 
 "This refers to the leading case of Gibbons ?;s. Ogden & Wheaten, which overthrew 
 the Steam Boat monopoly in New York. Those who cite the private opinion of 
 Chancellor Kent in favor of the United States Constitutionality of the fifteen gallon 
 law, would do well to remember that Mr. Kent also gave his opinion in favor of the 
 Steam Bo_e.t monopoly, but was overruled by the Supreme Court.
 
 30 
 
 But this law says that those who can acquire fifteen gallons or fifteen 
 dollars worth of this property, at one time, may do it; while it says 
 that those who cannot acquire that amount, shall not acquire any, unless 
 through a violation of law. 
 
 Where is the difference between this and a law which should prohibit a 
 citizen from acquiring less than fifteen dollars worth of food or clothing at 
 one time ? Would such a law be just and equal? 
 
 Effects as to enjoyment of Property. 
 
 Property is also .to be enjoyed according to standing laws. These laws 
 make no distinction as to any class of men enjoying a large amount of 
 property, while another class who have little, are not to be allowed to 
 enjoy that little. 
 
 Standing laws for two hundred years have protected the enjoyment of 
 this property in any quantity men chose to possess it. Until now it could 
 always be bought and sold, in any quantity, for any use. There can be no 
 legal enjoyment of property without the right to buy and sell. But this 
 right is taken away from a certain quantity of this property, such as the 
 man of moderate means can acquire, and yet the larger quantity of the same 
 property, which the rich can acquire, is left as free to his enjoyment as is 
 all other property under standing laws. This is as open and manifest a 
 violation of the Constitution as it would be to prevent a farmer from selling 
 over one bushel of rye at a time, under pretence of stopping distillation. 
 
 The Constitution declares that no part of property shall be taken away 
 from any individual, without compensation. This law confiscates one 
 seventh part of the property in this article, by declaring that the part under 
 fifteen shall not be sold, acquired, or enjoyed; and it deprives all who can- 
 not obtain over a seventh part, from lawfully obtaining any ! Where is the 
 difference between this and a law depriving men of acquiring less than the 
 seventh part of a dollar, or of one hundred dollars, — or of one hundred 
 acres of land? Of what avail are standing laws in regard to property, if 
 the Legislature can, at will, make such restrictions as this to limit its use, 
 acquisition and enjoyment ? And as all property comes under the same 
 standing laws, where is the power given in the Constitution to single out 
 this property from others ; and proscribe it, or any part of it ? 
 
 The Legislature is only an agent, with the Constitution for its power 
 of Attorney, to act for the people. If it cannot show the express or fairly 
 implied grant of this power, the exercise of it is open usurpation. Where 
 is such a power given or implied in the Constitution ? 
 
 Effects on Equality of Laics and Rights. 
 
 Again: — The whole object and design of the Constitution was to insure 
 the making of equitable laws, and a constant adherence to the principles 
 of justice is enjoined. 
 
 The object of this law is to make it very difficult, if not impossible, for 
 men of small means to get ardent spirits lawfully. It thus divides society 
 horizontally, according to property or credit, and denies the first broad 
 principle of equitable laws, that every man shall have his money's worth. 
 Why should your fifteen dollars be able lawfully to buy fifteen measures of 
 property, while my dollar cannot lawfully buy one, although the seller is as 
 ready to sell one to me as fifteen to you? No sophistry can make this a 
 just or equitable provision in any law, and no other law in existence has 
 any such provision in it. 
 
 The broadest and largest principle in property rights, which covers every 
 thing in our institutions is this — that every man, high or low, rich or poor, 
 shall have the equal right to acquire, possess and enjoy liis money's worth 
 of all lawful property that is susceptible of divisibility, to the minimum 
 extent ihc seller chooses to divide it
 
 31 
 
 This principle the act of 1838 directly violates, while no other act in the 
 statute book infringes it. Surely then, this is a new and dangerous prin- 
 ciple in legislation. 
 
 When such is the design and effect of a law, got up under great profes- 
 sions of philanthropy, it is wise for the people and for their Legislature to 
 ponder well the maxim of Washington, in his Farewell Address: — 
 
 "Resist with care the spirit of innovation upon the principles of your 
 government, however specious the pretexts." 
 
 This principle may be traced back to the earliest foundation of govern- 
 ment in this State. Governor Winthrop's definition of true liberty, was 
 this, in 1GG0: — 
 
 "Civil, moral, and federal liberty, consists in every man enjoying his property, and 
 having the equal benefit of the lav.s of his country." 
 
 Does the man whose limited means prevent his buying fifteen gallons 
 at a time, without great inconvenience, or who does not want to use so 
 much in a year, have the equal benefit of this law with the man of large 
 means, who can buy that quantity without inconvenience? 
 
 To this equal enjoyment according to means, in every individual, and 
 this equal benefit of laws, whether of prohibition or privilege, the Act of 
 1838 is utterly repugnant. 
 
 If then the Bill of Rights be any thing but a rhetorical flourish, this act 
 is palpably a violation of the Constitution, and can never be regarded by 
 the citizens as a law of the land. 
 
 The question of Expediency and Enforcement. 
 
 We now come to the matter of expediency, and the practical enforce- 
 ment of this act. All the argument tends to this point. 
 
 The act was not necessary to keep society together. There was no 
 palpable outrage on society demanding it, and it was no certain remedy for 
 the evils of intemperance. It is therefore inexpedient unless the public 
 mind is so fully prepared for it, as to readily settle down into a general 
 acquiescence. Every doubt that attaches to its expediency, constitu- 
 tionality or fairness, will operate directly against its enforcement ; and if 
 not enforced, it will be worse than no law on the subject. 
 
 It is inexpedient, because it presses a moral cause beyond the rule of 
 good government. That rule is well laid down to consist in this : 
 
 " To find the maximum of voluntary influence and the minimum of legal coer- 
 cion, — and to do nothing by law that can be done by opinion, or custom, or morals, 
 or religion." 
 
 All that goes beyond this in attempting to enforce moral restraints, 
 constitutes a force law, and this is what we mean by calling this act a 
 force laio. 
 
 It is inexpedient, because, before it was passed, there was a general 
 acquiescence in the temperance reform, and even in the laws, (objection- 
 able as some of them were,) passed to aid that reform ; but this act will 
 embody resistance by extreme pressure, and drive men to an investigation 
 of the principles of these laws of restraint upon lawful opinions and appe- 
 tites, which may endanger the whole, and carry you back far beyond the 
 point you started from. 
 
 A law that cannot be enforced will amount to universal license. The 
 common sense of common justice will revolt at such a law, and juries wil 
 not, perhaps, be found to agree upon verdicts under it. The constit
 
 32 
 
 tionality of this law will be argued to them, and they have the right to 
 determine the law as well as the fact, in each case. 
 
 Laws all depend on public opinion; especially so when designed to 
 enforce a moral reform. Public opinion, which was doinc all that could 
 be hoped for, in this reform, will react under the pressure of this law of 
 prohibition ; to what extent remains to be seen, but inevitably to the extent 
 of rendering this law nugatory. 
 
 Public opinion will sustain all proper and necessary restraints of whole- 
 some regulation, applied to places and occupations, and not to property and 
 classes. But it will resist prohibition, and in that struggle it may break 
 down the whole barrier which custom and moral influence have raised 
 against habits of dangerous indulgence. For these consequences those 
 who shall press this bad law, if they retain it, will be morally responsible. 
 
 The law is inexpedient, because it was not called for by the necessities 
 of the temperance reform. It is the few who want excitement, and who 
 cannot wait for the good seed sown to spring up and bear fruit — it is they, 
 and not the cause, that have demanded this experiment, and therefore it 
 must fail. 
 
 The only proper use of penal laws is to apply punishment and sometimes 
 prevention, to overt acts, wrong in themselves. This law is designed to 
 prohibit the temperate use in all of the comparatively poorer classes, 
 because some, may use it. intemperately. It cannot hold good in law or 
 morals that all men shall be denied a right, because some may use it 
 wrongfully. It is lawful to drink. Shall all men».be denied this right 
 because some may drink too much ? Why cut off" my hand, because my 
 neighbor may imbrue his hand in blood 1 
 
 It is in the nature of a law against freedom of opinion, — for what is total 
 abstinence but the result of opinion? Good citizens differ as to the neces- 
 sity of total abstinence. It is therefore a conflict of creeds, and systems 
 of living. Your law comes in. in aid of one creed and one system against 
 the other. What is this but a revival of the old doctrine of wholesome 
 persecution, to convert men to particular creeds and notions by force of 
 penal laws, after argument and moral suasion have failed ? 
 
 It is a violation of the original Temperance Constitution and pledge. 
 
 Those who began the Temperance reform repudiated all resort to force 
 laws. Such were the terms of the original enlistment in this good cause, 
 and the attempt to pervert it to purposes of legal persecution, is a departure 
 from the original Constitution, and absolves from further union or coopera- 
 tion with Temperance Societies, all who do not mean to become perse- 
 cutors, and who disclaim invoking the strong arm of the law to punish 
 men for not thinking as they do. 
 
 The Constitution of -the American Temperance Society, which first 
 promulgated the great moral remedy of total abstinence, and which remains 
 unchanged to this day, utterly repudiates all force laws. This will be seen 
 by an examination of the articles of association. The preamble says : 
 
 " Whereas the various measures which the friends of Christian morality have 
 adopted, though not altogether unsuccessful, have been found quite insufficient to give 
 any effectual and permanent check to this desolating evil ; and whereas some more 
 vigorous means are evidently required, — therefore the friends of domestic and social 
 happiness, wishing to do all in their power to promote the welfare of their fellow men, 
 resolve to form a Society" &c. 
 
 And what were these " more vigorous means"? Not pains and penal- 
 ties, but, (says the preamble,) 
 
 " Some eystem of instruction and action which will make a steady and powerful
 
 33 
 
 impression on the present and following generations, and in this way, ultimately effect 
 a change of public sentiment and practice in regard to the use of intoxicating liquor, 
 and thus put an end to that wide spreading intemperance, which has already caused 
 such desolation in every part of our country." 
 
 Not an allusion to force laws, fines or imprisonment. It was to be a 
 system of instruction, not of prosecution ; — a change was to be made in 
 public sentiment by appeals to understanding and feeling, — not by pimps, 
 spies, and informers ! 
 
 A change was to be made in regard to the voluntary use, not whips and 
 scorpions, fines and bolts, fire and fagot to be applied to the dealer in the 
 article. His customers were to be taken from him by moral suasion and 
 the change in fashion and habit, not by indictment ; for when public sen- 
 timent abolished the use, the sale, which was the consequence, not the cause 
 of the use, would disappear with it ! 
 
 The only qualification of membership, was to abstain from the use of 
 intoxicating liquor, and the following are all the duties enjoined in the Sth 
 article, upon the officers and agents of this society, in carrying forward 
 the work, viz. : 
 
 "To make appropriate communications, by pamphlets, correspondence, and personal 
 interviews, to ministers of the gospel, to physicians, and others, and to consult and 
 co-operate with them for the purpose of guarding those under their influence against 
 the evils of intemperance ; to take pains, in all proper methods, to make a seasonable 
 and salutary impression, in relation to this subject, on those who are favored with a 
 public and refined education, and are destined in various ways to have a leading influ- 
 ence in society ; to make it a serious object to introduce into the publications of the 
 dny, essays and addresses on the subject (*f intoxicating liquor, and to induce teacheis. 
 and those concerned in the support of schools, to labor diligently to impress the minds 
 of the young with the alarming and dreadful evils to which all are exposed who in- 
 dulge themselves in the use- of strong- drink : to mike affectionate and earnest adz- 
 
 dresses to Christian churches, to parents and guardians, to children, apprentices, and 
 servants, and all other descriptions of persons, and to set clearly before them the effect 
 of spirituous liquor on health, on reputation, and on all the temporal and eternal inte- 
 rests of men, and to urge them, by the most weighty arguments, drawn from the 
 present and the future world, to keep themselves at a distance from this insidious and 
 destructive foe; to do whatever is practicable and expedient towards the forming of 
 voluntary associations for the purpose of promoting the ends of this Society ; and, in 
 general, to labor, by all suitable means, and in reliance upon the divine blessing, to fix 
 the eyes of persons of both sexes, and of all ages and conditions, on the magnitude 
 of the evil which this Society aims to prevent, 3tid on the immeasurable good which it 
 aims to secure ; and to produce such a change of public sentiment, and such a renova- 
 tion of the habits of individuals, and the customs of the community, that, in the end,. 
 temperance, with all its attendant blessings, may universally prevail." 
 
 Here " thr divine blessing,'' and not " the strong arm of the law," is 
 invoked, as the sole reliance in promoting the cause. 
 
 This was the original purpose and pledge of the Temperance reform ; 
 and Mr. Chairman, as one of its earliest adherents and disciples, lit- 
 erally a pioneer in the work, and holding as I still do, the relation of 
 membership to some five Temperance Associations, of two of which I drew 
 the Constitutions and made the firstreports in 1827 ; I here charge the mov- 
 ers of this law temperance, which is now to be enforced by pains and penal- 
 ties, with a gross departure from the original principles of the institution. 
 
 I hold them as guilty, (in a moral point of view,) of perverting the true 
 fiiith of temperance A and becoming persecutors, as were the bigots in 
 rp'igion, who. changed the mild influences and the long suffering of early 
 Christianity, into the rack, the gibbet, and the fagot.
 
 34 
 
 With such persecuting and furiously proselyting temperance, I disclaim 
 all association, as I would with such religion. It has taken the sword, and 
 it will perish by the sword. 
 
 Thus do we find this obnoxious law, not only violating the Constitutions 
 of the United States and the State, but the Temperance Constitution 
 itself. And, are free men or temperance men, to be called on to support 
 such a law ? 
 
 This law, and the means taken to enforce it, are a perversion of the 
 original temperance reform, in another important respect. The design 
 never was to reach the drunkard or the tippler. The constitution of the 
 society says : 
 
 M It is to be adopted as a principle, that while we are to make use, perseveringly, of 
 all fit and promising means for the reformation of those who have already, in different 
 degrees, contracted habits of intemperance, — the utility of the institution must chiefly 
 consist in guarding against danger, those who are yet uncontaminaled by this loath 
 some and fatal vice." 
 
 But what say those who press this law upon us? Why, that they are 
 wearied in well doing; that they have convinced all who they think are 
 fit to be reasoned with, and that a class of men are left who are too obsti- 
 nate to be convinced, and they must have law to put them down and send 
 them to prison. 
 
 This law, then, is designed expressly to persecute and punish the incor- 
 rigible, or those who will not be convinced ; and therefore it is a direct 
 violation of the mild doctrines upon which the temperance reform, like pure 
 Christianity, was placed by its founders, e'er charity and meekness had 
 been changed to ferocity and despotism by the ambition of a few ruthless 
 .eaders, and the lust of party power. 
 
 No liberal man who started in the original temperance reform, before it 
 became degraded into a persecuting, political party, can fail to perceive the 
 great change in all the movements of Temperance Societies. This change 
 has morally absolved him from an association with persecutors and proscrib- 
 es. He cannot go into their meetings now, as he once did, and hear tem- 
 perance discussed. It is all law and the lash. Moral and social influences 
 are almost scouted there, as mean and spiritless, and the cry is, "give us 
 the law, give us the power, down with our opponents; murderers, thieves, 
 robbers! crucify them, crucify them ! !" 
 
 Instead of going into the social circle to protect from the habit by moral 
 influence, those who have not fully acquired it, this law assumes to operate 
 on those whose appetites cannot be restrained without enforcement of penal 
 enactments. It aims at those of supposed fixed habits ; it leaves the 
 highest and richest, who are generally supposed to set the fashions, 
 to indulge freely in their choice wines and their fifteen gallons of 
 strong proof; while it attempts to hedge round the poor man, and to
 
 35 
 
 cut him oft" from hia little indulgence, because he has not the means 
 to buy larger and drink deeper. Can such a law commend itself to the 
 common understanding and the common conscience, as a law which those 
 who exempt themselves from it, really passed for the common good ? 
 
 Temperance has been injured by force Laws. 
 The cause succeeded better on its original moral basis, than it has since 
 done by attempting to bring in the aid of force laws, contrary to its own 
 constitution. Moral influences began to operate generally in 1828 — 29. 
 
 Force laws began to be applied and felt in 1832 — 33. Contrast the two 
 periods of five years each, under moral and legal appliances. 
 
 TABLE No. 1. 
 
 Schedule of Imports and Exports of Foreign Ardent Spirits in the United 
 
 States, from 1829 to 1833, inclusive.* 
 
 Years. 
 
 Imported. 
 
 Exported. 
 
 Home Consumption. 
 
 1899 
 
 3,4-23,1 DO 
 
 735, 0U 
 
 2,688,000 
 
 1830 
 
 1,692,000 
 
 706,000 
 
 986,000 
 
 1831 
 
 2,491,000 
 
 639,000 
 
 1,852,000 
 
 1832 
 
 2,810,000 
 
 662,000 
 
 2,1 '8,000 
 
 1833 
 
 2,954.000 
 
 728,0 
 
 2,226,000 
 
 Total 5 years. 
 
 13,370,000 
 
 ,470,000 
 
 9,0 0,000 
 
 Imports and Exports of the United States from 1834 to 1839. 
 
 Years. 
 
 imported. 
 
 Exported 
 
 Home » onsumptioii. 
 
 1834 
 
 2,511,000 
 
 511 000 
 
 2,0 0,000 
 
 1835 
 
 3,394,000 
 
 310,000 
 
 3,084,000 
 
 183G 
 
 3,524, 00 
 
 272,000 
 
 3,252,000 
 
 1837 
 
 2,672,000 
 
 299,000 
 
 2,373,000 
 
 1838 
 
 3,092,000 
 
 232,000 
 
 2,860,000 
 
 Total 5 years, 
 
 15,193,00U 
 
 1,624,000 
 
 13,509,000 
 
 
 13,310,000 
 
 3,470,0,0 
 
 9,900,000 
 
 lncie:.se of tlie last 
 
 1,823,000 
 
 1,846,000 
 
 3,669,000 
 
 5 years. 
 
 
 Decrease of Exports. 
 
 
 * This statement is made, not from the Temperance tracts, but from returns certified by the Treasury 
 Department at Washington, and politely transmitted to Mr. H. by the Secretary of that Department. 
 The hundreds aie omitted as unimportant, and to avoid unnecessary figuies. 
 
 It appears, from this comparison, that the average consumption of foreign 
 spirituous liquors in each year, for five years, from 1829 to 1883, when moral 
 suasion and " the divine blessing" were relied on, was 1,980,000 gallons. 
 
 For the five subsequent years, when the effects began to be felt of calling 
 in "the strong arm of the law," the average consumption of each year has 
 been 2,713,S00 gallons; shewing an average increase in each year during 
 the last five, of 833,800 gallons. 
 
 The decrease under moral suasion, between 1829 and 1833, was 442, COO 
 gallons. The increase between 1834 and 1838, under force laws, is 800, (iCO 
 gallons. Net difference against the latter period, 1,276,000 gallons.
 
 36 
 
 The average annual decrease from 1829 to 1833, was 92,000 gallons. 
 The average annual increase from 1S33 to 1839, has been 172,000 gallons. 
 Difference against the latter period annually, 20-1,000 gallons. 
 
 Imports into Boston. 
 This unfavorable result for the cause of temperance is shewn still more 
 decisively in the State of Massachusetts, where law Temperance was first 
 started in 1831 — 2, and hs.s been pushed farther than in all the other States 
 in the Union. 
 
 TABLE No. 2. 
 
 Importations of Spirits and Wines into Boston, and Exports of Spirits 
 
 (foreign) from 1829 inclusive, to 1839, (10 years.) 
 
 Year 
 
 Branny 
 
 Rum 
 
 Gin 
 
 Total 
 Spirits 
 
 Exported 
 Ko reign 
 
 Home 
 Cons'mp 
 
 tion 
 
 Wine 
 Tmpoit'd 
 
 J olal 
 
 Wines 
 
 & Spirits 
 
 Do- 
 mestic 
 Exp'ld 
 
 J 829 
 
 | 85,750 
 
 | 319,790 
 
 92 -:t)0 | 
 
 497,940 
 
 181,964 
 
 315,980 
 
 466,500 
 
 | 954,440 
 
 1 
 
 1830 
 
 21,100 
 
 2t>5,810 
 
 78,160 | 
 
 364,i(70 
 
 1 18,829 
 
 215,241 
 
 2 0,680 
 
 | 644,750 
 
 | 4,503 
 
 1831 
 
 60,600 
 
 348.820 
 
 104,510 | 
 
 508,930 
 
 150,626 
 
 304 
 
 511 : 
 
 | 1,020,290 
 
 | 26,035 
 
 1832 
 
 ' 9i,840 
 
 222,810 
 
 165,468 | 
 
 480,110 
 
 186,151 
 
 293.959 
 
 887,850 
 
 1,361 
 
 | 2,545 
 
 1833 
 
 1-9,030 
 
 135,690 
 
 127, 70 | 
 
 391,7 9.) 
 
 173,304 
 
 4 8,486 
 
 620,840 
 
 | 1.012,630 
 
 | 47,530 
 
 1834 
 
 ..8,550 
 
 117,600 
 
 73,810 | 
 
 279,960 
 
 98,65 i 
 
 181,304 
 
 557,790 
 
 | 837,750 
 
 | 230,948 
 
 1835 
 
 121,730 
 
 156,420 
 
 120,850 j 
 
 401,7 
 
 35,712 
 
 365,988 
 
 . 4.-9,650 
 
 | 89 ,350 
 
 234,^11 
 
 1836 
 
 156,420 
 
 190,180 
 
 177,350 | 
 
 523,950 
 
 41,696 
 
 482,254 
 
 737,94 i 
 
 | l,-61,8Sy | ' 11,109- 
 
 1837 
 
 72,360 
 
 8 vi-0 
 
 116,460 j 
 
 2^8,14 > 
 
 22,452 
 
 | 255. its 
 
 397, n(>0 
 
 | 675.! 4n 
 
 I 64,814 
 
 1838 
 
 98,650 
 
 133,27,) 
 
 2 5,4 .0 | 
 
 437,320 
 
 16, 44 
 
 | 421,276 
 
 374 8(1 
 
 | 811,4011 
 
 1 1 '5,169 
 
 
 
 Taking 
 
 Five Yt 
 
 iars, fro 
 
 m 1829 
 
 inclusiv 
 
 z to 1834. 
 
 
 Frm 
 
 1829 
 M»>34 
 
 Brandy 
 
 Rum 
 
 Gin 1 
 
 Total 
 Spirits 
 
 Exported 
 Foreign 
 
 Home 
 
 Cons'mp 
 tion 
 
 Wine 
 Import'd 
 
 i otal 
 
 Wines 
 
 & Spirits 
 
 Do- 
 mestic 
 Exp'td 
 
 Frm 
 
 1834 
 to '39 
 
 3^8,320 
 
 l.,2xj 92 1 
 
 5u7,tiJ0 j 
 
 x, 242,84 J 
 
 810,871 
 
 1,431,970 
 
 2,767 230 
 
 5,000 670 
 
 
 Tut'l 
 
 51 >,7i0 | 
 
 6*0,79 i 
 
 603,870 || 
 
 1,921,070 | 
 
 *14,56il 
 
 1 706,51(i 1 
 
 2556,460 
 
 4 477,530 | 
 
 426,143 
 
 Increase of Brandy, 191,39 ) 
 Decrease of Rum, 605,131 
 
 Increase of Gin, 126,270 
 
 Decrease of Spirits, 321,770 
 Decrease of Exports, 596,31 I 
 Increase Consumption, 274,540 
 jifl crease ) 
 
 •of Domestic > 101,085 
 
 Exported, ) 
 
 Wine average the first 5 years, per year, 
 
 do. do. second 5 years, - 
 
 Average Consumption of Spirits tlie last 3 years, 
 Aveiage Consumption the seven preceding years, 
 
 Decrease of Wines 
 
 Imported 
 Decrease of Wines and 
 
 Spirits Imported 
 Deducting fm. decrease 
 
 of Exports, 
 Leaves increased Con- ; 
 sumption of Wines j 
 and Ardent Spirits, ! 
 
 210,770 
 5C-2,549 
 596,314 
 
 73,774 
 gallons. 
 
 Spiiits. \ 
 
 Average Consumption \ 286,394 
 tlie firs"t5yrs. to 1834, ) 
 Average Con sum p. j 
 
 per year the last 5 > 341,3(2 
 
 years, to 1839, ) 
 
 Difference in the av- ) ,j Qra 
 
 e age of the two £ 0,1 > 9U ° 
 
 periods. } 
 
 rr.3,446 
 
 511,292 
 3S6,4 n 6 gallons. 
 282,752 " 
 
 Showing in favor of 7 former years, e;:di year, ------- 
 
 Average Consumption of two last yeais, -------- 
 
 Still siiowing a greater average than 8 preceding years, by - - - - - 
 
 Increased Importation of Spiiits into Boston in 1838 over 1837, .... 
 
 Diminished Import of Wines during same time, ------- 
 
 Increase of Importation of Spiiits in 838, over the average of 1836, '37, and '38, 
 Import of 1838, -- ------ 
 
 Difference in 1838, 
 
 Increased Consumption of 183S, over t lie average Consumption of 1836, '37, and '38, 
 Increased Consumption of Spirits in 1838 over 1837, ------ 
 
 103,654 gallons. 
 
 33)s,482 " 
 30,790 gallons. 
 
 159,181 
 22,920 
 4 3,137 
 437,320 
 
 24,183 gall, ns. 
 34 ,870 do. 
 165,588 do. 
 
 Boston furnishes rather less than one twenty-eighth part of the whole 
 revenue of the United States, and yet in 1838 one-third of the increased 
 imports of spirits in the whole Union, was made at the port of Beaton!
 
 37 
 
 A startling fact this, that where the laws have been severest, importation 
 has been largest. 
 
 BC3BM 
 
 TABLE No. 3. 
 Comparison of Imports and Exports of Spirits in Boston beticeen two 
 periods of five years, — from 1829 to 1834, and from 1831 to 1839. 
 
 Five years,— from 1829 to 1834. 
 
 Imported. | Exported. | Consumption. || Domestic Spirits exported ironi 1831 to l«3o. 
 27242^8 W i 810,874 | l743l797rj~ fj 235,- '58 ~ 
 
 Five years,— from 1834 to 1839^ 
 
 Imported. | Exported. | Consumption. |j Domestic Spirits exported fro h 1835 to 1»39 
 
 1,921,1.70 j 214,560 j 1,7U6,510 [j 42u',143 " 
 
 Showing increased Consumption the last 5 years, ---___- 274,540 gallons. 
 
 Increased Export of Domestic Spirit- the last 4 years, in two periods of 8 years, - lul,. 85 do. 
 
 Averaae Consumption of Foreign Spirit.-; for the first period of five years, per year, 886,394 Be 
 
 Average Consumption of the last five years, --.---___ 341,308 do. 
 
 Increased Average, ------ ^- - ... . 54,908 
 
 Average Consumption the last three years, ------ 386,406 
 
 Average of the seven preceding } ears, ------- ■_ 750 
 
 In favor of the 7 first year-', --------- 103,054 
 
 Average Consumption of two last years, ------ 338 
 
 Average of the eight preceding years, ------ 3 .'7,690 
 
 Increased averace of the two last years, ------ 3 ,792 
 
 Increased Consumption of 1638 over 1637, ----..-. 155,588 galls. 
 
 The whole increase of 1838, in the United States, is 497,000 galls., one third of which is in Boston, alone 1 ' 
 
 Another singular fact in these statistics is, that while the consumption 
 of alcohol in the form of rum, brandy, and gin, has increased, its use in 
 the form of wine, has diminished. The wines consumed in the United 
 States, in 1837, were 5,992,000 gallons. In 1838, 4,047,000 gallons. 
 Decrease, 1,945,000 gallons. 
 
 The wines imported into Boston in 1837, were 397,000 gallons. In 
 1838, 374,000 gallons. Less, 23,000 gallons. 
 
 And yet all* the force laws have been applied exclusively to ardent spirit?, 
 which have increased under them, while wine, that has been left without 
 restraint, has diminished, under moral suasion. Had the restraints been 
 applied to wine and not to spirits, the reverse would unquestionably have 
 appeared. Such are the laws of human nature. 
 
 Increased Sales in Boston. 
 
 "We are prepared to shew further, the unfavorable influence of force laws 
 upon Temperance, by the increased sales from Distillers and large dealers, 
 since this law was first agitated. We shall offer direoi proof of this fact, 
 and shall also shew that the sales have been very large, and equal to, if not 
 greater, than in former years, by the dealers in Boston, for consumption and
 
 38 
 
 sale in the counties where for three or four years past the Commissioner* 
 have withheld all licenses. The fact of the increased sale under prohi- 
 bition, is well understood by the large dealers in this merchandize, and can 
 be demonstrated by an examination of their books. 
 
 In the midst of the senseless and unchristian vituperation cast upon this 
 portion of our fellow citizens, by the temperance persecutors of better men 
 than themselves, it is but just to recur to this evidence of their fairness and 
 their disposition to do right. It wili be understood better hereafter, should 
 this law not be repealed. 
 
 But let it now be stated and remembered, that so far as profit is con- 
 cerned, the dealers are directly interested in keeping up this law. It will 
 put money into their pockets. It will increase the consumption, increase 
 the demand, increase the sale, and increase the profit. It has had this 
 effect already, and will continue to have this effect with increasing force, 
 the longer it is persisted in. I respect these citizens for the evidence they 
 thus give of a desire to reform the law, though it will be at a loss of profit, 
 rather than avail themselves as they might, of a bad law, to increase their 
 profits. 
 
 The immoral tendtncy of the Law. 
 
 This brings us to consider the influence of such a law on morals and the 
 public justice. It will be evaded in all possible forms, where it cannot be 
 openly disregarded. It gives a free license to wine shops, which are now 
 restrained, and under the name of wine, all things can be sold. 
 
 "Tell me where wine ends and brandy begins," was the shrewd re- 
 mark of a dealer who was asked what he should do if this law was not 
 repealed. 
 
 It will induce malicious prosecutions on one side, revenge and violence 
 on the other, and perjury in your Courts on both. It will engender bigotry 
 in the prosecutions, and hypocrisy in those who will indulge their appetites 
 secretly, while openly pretending to go for the law. 
 
 It has excited, and will continue to excite, angry feelings and bitter 
 collisions, destructive of good neighborhood and the social affections. 
 Your criminal Courts will be filled, not only with prosecutions for violations 
 of this Act, but for the breaches of peace, slanders, libels, and personal 
 assaults, that will grow out of the vain attempts to enforce it. In a word, 
 instead of a law of prohibition, or of regulation even, it will become iu 
 effect, a law of universal license. 
 
 The Expense of Enforcing such a Law. 
 
 lias the cost been counted? There will be great resistance to so 
 unreasonable a law, and the costs of criminal prosecutions of all kinds, 
 growing out of it, will greatly enhance the public expenses in the adminis- 
 tration of justice, which already costs $31,000 annually, in this Com- 
 monwealth. 
 
 Who will pay this additional expense ? Will the getters up and sup- 
 porters of this law? At present it must fall upon the State, already 
 obliged to borrow to meet the excess of her current expenses, over the 
 annual income.* The Governor, in his annual Address, alludes to the 
 increase of County balances, as among the causes of increased expendi- 
 
 * To escape from this unpopular effect of the law, the Legislature subsequently threw 
 the County balances upon the Counties, and took the fines for the General Treasury. 
 But who pays ? Is it any saving to pay a State tax by calling it a County tax ? Will 
 a citizen of Boston, for instance, find it cheaper to pay County balances ae a Suffolk 
 man, than he would as a Massachusetts man ?
 
 39 
 
 lures. In 1832, these balances were 828,626. In 1838, tliey were 
 868,680, showing an increase of $40,000.- Much of this grows out of 
 prosecutions under force temperance laws. The increased expenses 
 between 1836 and 1S38, have been larger in the prohibitory than in the 
 licensing Counties. 
 
 The angry feelings this laio engenders. 
 
 These are to be taken into the account where a new and unheard of 
 law is made, under the y pretence of improving the moral condition of the 
 people, and promoting the social affections. 
 
 This law will not only prove to be the mother of hypocrisy in those who 
 enforce and those who evade it, but it will engender angry and vindictive 
 feelings. It singles out for proscription and punishment, a respectable 
 class of citizens, whose business has been sanctioned by the laws for two 
 hundred years. 
 
 Assertions like these are made in reference to such men, by one of your 
 honorable Senators, who voted for this law.* 
 
 "They ought to be charged in account annually, for one half the pauperism, one 
 half the insanity, one half the conflagrations, one half the suicides, thefts, murders, 
 and rapes of society." 
 
 Epithets like the following are heaped upon these citizens by the news- 
 paper organ of the supporters of this law, which daily grossly and openly 
 violates the law of libel, (if there be such a law,) while exclaiming with 
 horror against other violators of law ! 
 
 [Epithets from the Mercantile Journal.} 
 
 " Whig liquor dealers, whose inclination to deal in rum is more than a match for 
 their patriotism ; petty, little faction ; dictators of the parly ; playing a deep game ; 
 preconcert, mancenvering, and fraud ; selfish and private ends ; secresy of some eastern 
 despotism; tainted with fraud, treachery, usurpation, proscription, and favoritism > 
 proscriptionists ; Rum Whigs, and Rum-sellers ; striped pig liquor dealers !" 
 
 Harsh epithets have led to harsh laws. This law was preceded by a 
 systematic attempt to create a new moral offence in society. Professedly 
 christian men publicly branded their fellow citizens who were as free from 
 crime or evil intent as themselves, with robbery and murder. 
 
 I deprecate in Christian ministers, whose moral influence would else be 
 as salutary in this cause as their learning is eminent, remarks like these, 
 calculated to stir up worse passions than intemperance itself engenders. — 
 
 " I challenge any man, who understands the nature of ardent spirits, and yet con- 
 tinues to be engaged in the traffic, to show that he is not involved in the guilt of 
 murder." — Lyman Beechf.r. 
 
 " No man can act on Christian principles, or do a patriot's duty to his country, and 
 make or sell the instruments of intoxication." — Henry Ware. 
 
 "The evils of intemperance can never cease until the virtuous in society shall unite 
 in pronouncing the man who attempts to accumulate wealth by dealing out poison and 
 death to his neighbor, as infamous." — John Fierpont.* 
 
 In contrast with these unchristian denunciations, I love to hear opinions 
 
 *Hon. S. G. Goodrich, of Norfolk. 
 
 "And yet, strangely inconsistent as it must seem, these estimable and reverend 
 gentlemen have been for years, and still are, supported in their parishes, to a very 
 considerable extent, by the men they pronounce traitors, murderers, and infamous ! 
 Are they not, by their own showing, content to receive from these men the price 
 of blood ?
 
 40 
 
 ]\kc. this, from wise and eminent men in the land. It will do more good 
 than volumes of abuse, or a whole code of force laws : — 
 
 " Beinrr satisfied from observation and experience, as well as from medical testimony, 
 that ardent spirit, as a drink, is not only needless, but hurtful ; and that the entire 
 disuse of it would tend to promote the health, the virtue, and happiness of the com- 
 munity, we hereby express our conviction, that would the citizens of the United 
 States, and especially all youvg men, discontinue the use of it, they would not only 
 uromote their own personal benefit, but the good of their country and the world. 
 1 Signed, JAMKS MADISON, 
 
 ANDREW JACKSON, 
 JOHN QU1NCY ADAMS." 
 
 Does public opinion demand this Law ? 
 
 This is not a mere question of majorities. To make such a change as 
 this in legislation, affecting voluntary morals, and not the immediate 
 exigencies of society, the demand of public opinion should be open, mani- 
 fest, unquestionable, and to a degree, unanimous. The sudden passage 
 of this law in 1S33, was a surprise upon the public. Jt was the result of 
 external pressure upon the Legislature, by self constituted societies, and 
 of an ex-parte hearing before an ex-parte committee. No law ever raised 
 a more decided opposition, from the moment of its passage. It has kept 
 the community in a broil ever since. What has been the popular expres- 
 sion as indicated by the return of members this year? (1839.) 
 
 Elections of twenty-three Senators by the people have been prevented, 
 solely by opposition to this law, in six out of fourteen counties, namely, 
 Suffolk, Worcester, Middlesex, Norfolk, Hampden, and Franklin, leaving 
 but seventeen chosen by the people. 
 
 In the Senate of 1838, twenty-four Senators voted for the law, and nine 
 against it. Of the twenty-four who voted for the law, nineteen were can- 
 didates for re-election. Ten were chosen, and nine were defeated. 
 
 Of the nine Senators who voted against the law, five were candidates; 
 three were chosen, and two defeated. 
 
 The popular vote, as far as it can be estimated, from the known opinions 
 of the candidates, without regard to party, gave the following results : — 
 
 In Suffolk, the majority against the law was 5099. In Worcester, the 
 opponents of the law threw an average of 638 more votes than its friends. 
 In Franklin, the majority over the candidate who would not declare 
 against the law, was G43. Here is a majority of 8049 in three counties, 
 which all the other counties cannot balance on the other side. 
 
 In Hampden, the candidates supported on open ground of opposition to 
 the law, combining both parties, had 3805 votes, to 2(516 for advocates 
 of the'law. Difference 1189. Mr. Boise, who voted for the law, was in a 
 minority of 416. Mr. Ives, who opposed the law, in a minority of 204. 
 An entire liberal ticket prevented an election. 
 
 In Norfolk, three candidates who had voted for the law, were defeated. 
 The two candidates having the highest votes, were against the law. The 
 scattering for the liberal ticket would have elected them. 
 
 In Bristol, one who voted for the law was beaten. Those chosen were 
 not supporters of the law, and one, (Mr. Whitmarsh) had published his 
 opposition to it, and his determination to vote against it, if elected. 
 
 In Middlesex, one who had voted for the law was elected. One for it, 
 and one against it, rejected. Of the three having the highest vole, two 
 were against the law and one for it. 
 
 Hampshire was equally divided, one for the law and one against it. 
 But Mr. Clark, who had voted against the law, had 275 more votes on the 
 same ticket, than Mr. Lawrence, a champion of the law, and President 
 of the Senate.
 
 Berkshire, Essex, Plymouth, Barnstable, and Nantucket, re-eiected sup- 
 porters of the law. 
 
 The popular will, as shown in the canvass for Senators, gave the prefer- 
 <ence to candidates divided on this question, as follows : — ■ 
 
 Against ike Law. For the Lais 
 
 Suffolk, Q .......... ^ 
 
 Middlesex, 3 --•-»-.>..., 2 
 
 "Worcester, 6----»-- = .-0 
 
 Essex, Q.-.......^§ 
 
 Hampshire, 1^-.. ....... \ 
 
 franklin, 1 
 
 Hampden, 8 » 
 
 Berkshire, .-... = ----2 
 
 Norfolk, 2 -..-... 1 
 
 Plymouth, --••....... <2 
 
 Bristol, 2--. ....... ^ 
 
 Barnstable, ...... ^ .... %_ 
 
 Nantucket, ......... . . % 
 
 23 17 
 
 In the House, but a very small portion of those who voted for the law 
 were sustained by the people in 1839; — not one in three, as is seen by the 
 following table. 
 
 Number of members in the several Counties , who voted on the Law o/"1838 s 
 
 
 and were re-elected in 1839. 
 
 
 Yeas 
 
 Re-elected 1 JNavs 1 He-elected 
 
 
 in 1838. 
 
 in 1839. in 1838. in 1839. 
 
 ■Suffolk, 
 
 36 
 
 3 
 
 28 
 
 5 
 
 35ssex, 
 
 36 
 
 17 
 
 7 
 
 3 
 
 Middlesex, 
 
 30 
 
 4 
 
 38 
 
 9 
 
 Worcester, 
 
 30 
 
 4 
 
 22 
 
 11 
 
 Hampshire 
 
 15 
 
 6 
 
 2 
 
 1 
 
 Hampden, 
 
 8 
 
 
 
 6 
 
 
 
 Franklin, 
 
 8 
 
 2 
 
 8 
 
 5 
 
 Berkskirej 
 
 S 
 
 1 
 
 5 
 
 1 
 
 Norfolk, 
 
 ID 
 
 10 
 
 7 
 
 4 
 
 Bristol, 
 
 19 
 
 8 
 
 3 
 
 1 
 
 Plymouth, 
 
 20 
 
 30 
 
 
 
 
 
 Barnstable, 
 
 18 
 
 30 
 
 
 
 
 
 Dukes & Nantucket, 
 
 5 
 
 2 1 
 
 
 
 
 
 
 229 77 106 . 33 
 
 This unusual change in the members has taken place, so that although 
 ihe great object of the supporters of the law was to prevent its repeal in 
 1839, they have nevertheless returned but srvcvty-seven of the original 
 advocates of the law ; thus clearly indicating that the unpopularity of that 
 measure has obliged the friends of the law to take new candidates, whs 
 were not known to be pledged to uphold the law. 
 
 Neither was there a full expression of the representatives in passing the 
 law at the close of the session of 183S. It was in fact passed by a minority 
 of the House, and was almost the last Act of the session. The whole 
 number of members belonging to the House, in 1838, was 478, requiring 
 240 for a majority. But 229 voted for the law, which is eleven less thaE 
 a majority. It was therefore passed by a minority of the House! 
 
 Of the whole number of members in the respective Counties, there were 
 wanting majorities for the law, viz. — in Suffolk, 25 less than a majority? 
 Worcester, 9; Hampden, 8; Franklin, 4; Berkshire, 19; Bristol, .2,
 
 42 
 
 Total, 67. The Counties where majorities of the members voted for the 
 law, were, Essex, 13; Middlesex, 2; Hampshire, 9; Norfolk, 5; Ply- 
 mouth, 7; Barnstable, 12; Dukes and Nantucket, 1. Total, 49. 
 
 The. opponents of this law, therefore, show conclusively, that there has 
 not been a fair and full expression of the public sentiment upon it ; and 
 that the elections for 1839, indicate a decisive expression against the law, 
 calling for a modification o/ repeal of it at the present session. 
 
 Conclusion. 
 
 What then have the people a right to expect, and what can be done to 
 settle this unhappy conflict in a question of public morals and private 
 right? The answer of the opponents of this law, (who, though they may 
 fail now, never will, and never can cease to oppose it3 arbitrary and unjust 
 principles,) is **. regulate, but not prohibit," Apply your laws to places 
 and police, not to property or its uses, — to offences, not to innocent acts ; 
 and leave the rest to moral and social influences. Do not attempt to single 
 out and separate classes of men according to their property, who may 
 indulge on one side of the line, and who are to be restrained on the other; 
 nor to prescribe the quantity these two classes may or may not purchase 
 at a time. 
 
 All history, all experience, and all the attributes of human nature, are 
 against the success of such a law. 
 
 Your law professes to aim to stop poor men's appetites by stopping sales 
 in small quantities. How futile ! 
 
 You leave the habits and the wants of society, which demand and will 
 have this indulgence while the article is to be found. They will seek it 
 the more eagerly the more your law attempts to restrict it. You leave the 
 customers, and think to stop the sale, while you increase the demand by 
 the reaction against your law. 
 
 You leave the free importation of ardent spirit, — you leave its manu- 
 facture, — you leave its unrestrained sale over fifteen gallons, — you leave 
 wine, in all its gradations, unrestricted in any quantity, and by any one 
 who chooses to expose it to sale ; — and yet you expect such a law will 
 put an end to tippling, and compel the poorer classes to resort to total 
 abstinence! 
 
 Be sure of it, the end of this law, if it be unwisely persisted in, will show 
 the folly of such an estimate of human nature. 
 
 We have history for it, and history is philosophy teaching by example. 
 I pray your attention to the following extract from a highly authentic 
 work, (McCulloch's Encyclopedia., page 1073,) shewing the effects of just 
 such laws as this, designed to be prohibitory, which the ultra friends of 
 temperance attempted to enforce in 1742, with the same mistaken zeal that 
 influences the ultra friends of Temperance, in 1839. Let them not rely 
 on the supposed difference in public sentiment now and an hundred years 
 ago. If men love temperance more than they did then, so do "they love 
 liberty and hate arbitrary laws more. They can be more easily persuaded 
 now, but cannot be so easily driven, as in ,1742. 
 
 [Extract from McCuUock, p. 1073.] 
 " During the latter part of the reign of George I., and the earlier part of that of 
 George 11., gin drinking was exceedingly prevalent; and the cheapness of ardent 
 spirits, and trie multiplication of public houses, were denounced from "the pulpit, and 
 in the presentments of grand juries; as pregnant with the most destructive conse- 
 quences to the health and morals of the community, At length, ministers determined 
 to make a vigorous effort to put a stop to the further use of spirituous liquors, except 
 p.s a. cordial or medicine. For this purpose, an act was passed in 1736, the history and 
 effects of which deserve to be studied by all who are clamorous for an increase of the 
 duties on spirits. Its preamble is to this effect :— ' \Vhe1ea3, the drinking of spirituous
 
 liquors, or strong water, is become very common, especially among people of lower 
 and inferior rank, the constant and excessive use of which lends greatly to the destruc- 
 tion of their health, rendering them unfit for useful labor and business, debauching 
 their morals, and inciting them to perpetrate all vices; and the ill consequences of the 
 excessive use of such liquors are not confined to the present generation, but extend to 
 future ages, and tend to the destruction and ruin of this kingdom.' The enactments 
 were such as might be expected to follow a preamble of this sort. They were not 
 intended to repress the vice of gin-drinking, but to root it out altogether. To accom- 
 plish this, a duty of twenty ehilLingS a gallon was laid on spirits, exclusive of a heavy 
 license duty on retailers. Extraordinary encouragements were at the same time held 
 out to informers, and a fine of £100 was ordered to be rigorously exacted from those 
 who, were it even through inadvertency, should vend the smallest quantity of spirits 
 which had not paid the full duty. Here was an act which might, one would think, 
 have satisfied the bitterest enemy of gin. But instead of the anticipated effects, it 
 produced those directly opposite. The respectable dealers withdrew from a trade pro- 
 scribed by the legislature ; so that the spirit business fell almostentirely into the hands 
 of the lowest and most profligate characters, who, as they had nothing to lose, were 
 not deterred by penalties from breaking through all its provisions. The populace 
 having in this, as in all similar cases, espoused the cause of the smugglers and unli- 
 censed dealers, the officers of the revenue were openly assaulted in the streets of 
 London and other great towns; informers were hunted down Jike wild beasts; and 
 drunkenness, disorders, and crimes, increased with a frightful rapidity. 'Within two 
 years of the passing of the act,' says Tindal, 'it had become odious and contemptible, 
 and policy, as \j?ell as humanity, forced the commissioners of excise to mitigate its 
 penalties.' — (Continuation of Rnpin, vol. viii. p. 358, ed. 1759.) The same historian 
 mentions, (vol. viii., p. 300,) that during the two years in question, no fewer than 
 twelve thousand persons were convicted of offences connected with the sale of spirits. 
 But no exertions on the part of the revenue officers and magistrates, could stem the 
 torrent of smuggling According to a statement made by the Earl of Cholrnondeley, 
 in the House of Lords — (Timber land's Debates in the House of Lords, vol. viii. p. 338,) 
 it appears that, at the very moment when the sale of spirits was declared to be illegal, 
 and every possible exertion made to suppress it, upwards of seven millions of gallons 
 were annually consumed in London, and other parts immediately adjacent! Under 
 such circumstances, government had but one course to follow — to give up the unequal 
 struggle. In 1742, the high prohibitory duties were accordingly repealed, and such 
 moderate duties imposed as were calculated to increase the revenue by increasing 
 the consumption of legally distilled spirits. The bill for this purpose was vehemently 
 opposed in the House of Lords by most of the bishops, and many other peers, who 
 exhausted all their rhetoric in depicting the mischievous consequences that would 
 result from a toleration of the practice of gin drinking. To these declamations it was 
 unanswerably replied, that whatever the evils of the practice might be, it was impos- 
 sible to repress them by prohibitory enactments; and that the attempts to do so had 
 been productive of far more mischief than had ever resulted, or could be expected to 
 result, from the greatest abuse of spirits. The consequences of the change were highly 
 beneficial. An instant stop was put to smuggling; and if the vice of drunkenness 
 was not materially diminished, it Las never been stated that it was increased." 
 
 These, Mr. Chairman, are the views of the great body of your fellow 
 citizens who ask for the repeal of this law. Their stake in society, in 
 property, in good government, in pure morals, in virtuous habits, in the 
 education and welfare of their children, is as great as that of the supporters 
 of this law; and they claim to be as good citizens and as philanthropic as 
 they are. Depend upon it, that if the zealous support of this law is to be 
 made the test of true philanthropy and of good morals, it will ultimately be 
 found that the most energetic, industrious, intelligent and honorable, of the 
 people of Massachusetts, must be ranked as bad citizens. They will 
 never approve, though they may not openly oppose, such legislation. 
 
 No, Sir. The opponents of this law are among the best, and most 
 virtuous and liberal, of your citizens. They are the rational friends of 
 temperance; but they are the friends of liberty and enlightened laws, as 
 well as the friends of temperance. They say to you, as the agents of the 
 people, commissioned by them t<i make only reasonable, wholesome, just 
 and rquitablr laws; — " repeal this law, which is founded on a false prin- 
 ciple in legislation, and adopt oihci' means to aid the moral reforms of 
 the day."
 
 44 
 
 THiey say to vou ; — " Punish crime wherever you find it. Preserve 
 
 ^eace and good order in all, private and public places, so far as the com- 
 munity is concerned. Regulate trades and occupations, and the places itt 
 which they are carried on, within the limits of the constitution, for the 
 public good. Break up all disorderly houses, all lawless disturbances of 
 good neighborhoods ; prohibit and punish drunkenness, gambling,, lottery 
 dealing and lewdness, because in themselves crimes, and because no su- 
 premelawof the land authorizes their importation into the State, and mix- 
 ing up with the mass of property. But do not deny to lawful property 
 its essential quality of value, sale ; or punish an innocent man to prevent 
 ©thers being guilty," 
 
 •• Beyond these limits you cannot go, to enforce by law, any moral 
 reform, however noble, however desirable. Resort, as all moral reformers 
 who were not persecutors and bigots, always have done, to reason and 
 argument, the still small voice of moral suasion, and not apply the terror 
 of the law, to restrain poor men's appetites. Take away the customers 
 of the dealer by persuasion and example, and you will then have no occa- 
 sion to resort to pains and penalties against a lawful occupation, or to 
 Brand as criminals upright citizens. 
 
 Mr. Chairman, and gentlemen of the committee : I have now discharged! 
 my duty to the memorialists, in opening the grounds of their objections to* 
 this law. They will have the aid of abler counsel in its close ; but, what- 
 ever may be held to be the extent of professional latitude in, arguing a* 
 sause for, a client, I desire to be distinctly understood, that in a great 
 qpesiion like this, affecting public morals- and fundamental principles of 
 freedom, I would not appear as the advocate for the side my judgment and 
 conscience did not both deliberately approve. 
 
 I stand here, not less the friend of temperance, because I am the friend 
 ®f liberty. In this law I see not only a blow aimed at liberty, but at the 
 cause of temperance, and in defence of that cause, in its original purity 
 and purpose, I claim a right to speak ; a right, older by many years, thai* 
 that of the most relentless clamorers for this law, who affect to denounce 
 all who oppose it, as the enemies of temperance. 
 
 Here is a record, Mr. Chairman, beginning in April, 1827, prepared by 
 ime, as Secretary of a meeting, held to form a total abstinence society^, 
 which was persevered in until the following entry was made :■ — 
 
 « March 11, 1823.— The Secretary appeared at the Vestry, but finding only one- 
 person and the Sexton present, retired., there not being a quorum to adjourn thft 
 meeting." 
 
 Two years after this, and by the perseverance of the same individual, 
 with two others, a numerous society of over five hundred members, was- 
 formed ; and, in looking at the first printed quarterly report of that society r 
 made by myself, in 1S30, I find the same sentiments I advocate now, io> 
 these words :•. — 
 
 " All this moral influence has been put into operation, within four years past. 
 There has been no forcing system, and there can be ao appeal to selrlsh, sordid 3 or 
 ambitious motives." 
 
 "We would enforce no man's conscience beyond its own honest promptings. Wac 
 judge no man, we condemn none; nor would- we, if we could, take one particle from. 
 Ehe respectability or usefulness of any citizen who indulges in an habitual, temperate- 
 •use of ardent spirits. In all other relations except the moral influence he might exert 
 In- the cause of temperance, by example as well as precept, he may, perhaps, hold at 
 Higher place in the estimation of the virtuous and. intelligent, than any member of a 
 temperance society. But. in that relation, can he exert the healthful influence that,, 
 ss a moral, an enlightened, and above ail, a Christian member o£ society, he ought to> 
 ss-epcise ?'
 
 45 
 
 **The strength of Temperance Associations will go on increasing so long as tfwi 
 friends of Temperance constitute, as they now do, solely a moral party ; but the mo- 
 ment these associations shall (urn aside from their legitimate purpose, to mingle in party 
 strife, whether in politics or religion, that moment, bo they ever so strong, they wife 
 become shorn of their strength, and will fall an easy prey to the Philistines Persua- 
 sion, and not coercion, example and not dictation, are the legitimate weapons of our 
 moral warfare."' — [1st Quarterly Report, July 1830, of the Providence Association for 
 the Promotion of Temperance.]. 
 
 Such was my temperance faith then, such is it now, and from that day 
 I have not ceased to show my faith in practical total abstinence, and iu 
 moral suasion, by my works. 
 
 Pardon me for this allusion to my personal relations to this cause, but 
 the unworthy attempt made to identify opposition to this law with opposi- 
 tion to temperance, may seem to justify it- 
 Here then I leave the cause of the memorialists. It has been patiently 
 heard thus far; let it be fairly judged. The Executive who signed this- 
 taw, now intimates strongly in his address to both Houses, doubts of its 
 expediency or practicability. He invites them to a calm and dispassionate 
 consideration of the whole subject. The memorialists earnestly desire th& 
 same - t and if this matter, (aside from the pride of opinion, which often? 
 misleads men to persist in error rather than confess wrong,) can command 
 the ealin, dispassionate, and deliberate action of the Legislature, there 
 irjust be but one answer to the prayer of the memorialists I " It ought to- 
 fee granted V 
 
 TESTIMONY INTRODUCED BY THE MEMORIALISTS. 
 
 Jan. 29, 1339. — Samuel A. Eliot, Mayor of the city of Boston, being sworn, an*? 
 questioned, testified: — 
 
 » That he had examined the law, and thought it would be extremely difficult to 
 enforce it to any extent, in the city. In the position he occupied, as the head of the- 
 police, he had never allowed himselF to doubt the practicability of enforcing any law; 
 but this was different from any that had come under his observation. It would require- 
 unusual energy and even physical force, through a very great addition to the police, 
 to cause it to be carried into strict execution. He could not undertake to do it, wilh 
 the present disposable means of the police. He had had much practical aeqnaintanes 
 with the subject, and was fully satisfied, and thought the opinion -would ultimately 
 become general, that regulation promotes temperance, and prohibition increases intent,- 
 perance. A law of regulation could be enforced, but not of prohibition, to the extent 
 this proposed. 
 
 In answer to an inquiry as to the effect of the recent attempt to intro- 
 duce stronger laws against the sale of ardent spirits, the Mayor stated, that 
 
 "During the past year, according to the reports of the night watch, it appeared that 
 there had been an increase of the number of persons detained for drunkenness during 
 the nicrht. This could be only partially accounted for from the fact that there had also 
 been an increase in the number of the night police. He could attribute it to no par- 
 ticular cause. The population of the city had increased but little in that time."' 
 
 u The trials at the' Police Court, for drunkenness, had gradually increased for some 
 years. In 1835 the number of cases tried was 317, at an expense of $1499. In 1836 r 
 367 cases, at $1724. In 1837, 444 cases, at $2,686. In 1838, 076 cases, at $3,177. 
 He. believed that the system of granting licences for the sale of spirituous liquors, in, 
 this city, iu the present state of society, had a greater tendency to check the evils of 
 intemperance than the prohibition of the sale of spirituous liquors." 
 
 "There were certain rules which regulated the Board of Alderman in granting: 
 licences. The number of licences granted since 1830, was as follows : — in 183U, 5(!0j 
 iu 1831, 690; in 1832, 410; in 1833, 492 ; in 1834, 394; in 1835, 300; in 1836, 385; 
 in 1837, 360 ; in 1838, 408." 
 
 "A large proportion, more than half of the commitments by the night watch, had 
 been for intemperance — which was also a frequent cause of disorder and disturbance." 
 
 " He thought it would be extremely difficult, if not impossible, to discriminate 
 between the sale of wine by the glass, and other kinds of spirituous liquors. A per- 
 mission to sail wines, would doubtless be used with impunity to sell other liquors."
 
 48 
 
 " The™ would probably be great opposition to the law from thope who were accus- 
 tomed to sell spirits, arid tii;>s« who were accustomed to buy it — although, doubtless a 
 lar^o proportion of the sellers would support the law if it should not be repealed — or 
 any other which might be enacted." 
 
 '"' He believed that an intemperate man would be likely to drink oftener, and a tem- 
 perate man to indulge more, in consequence of the passage of this law prohibiting the 
 sale of spirituous liquors." 
 
 " In his opinion, the granting of licences had a tendency to prevent violations by 
 the unlicensed persons." 
 
 On the cross examination by Messrs.- Crosby, Bolles, Sprague, and 
 others, who appeared in support of the law, the following facts were 
 illicited : — 
 
 " Has the granting of licenses a tendency to increase or diminish drinking?" 
 
 "Undoubtedly the granting of licenses would check intemperance." 
 
 " What portion of the prosecutions has resulted in convictions i" 
 
 " It is impossible for me to tell; probably most of thein." 
 
 " What fact have you to show that the license law has increased intemperance?" 
 
 " I know of no fact to illustrate it, except from what has come to my knowledge. 
 I know it to be so." 
 
 " What proportion of committals to the watch-house are for drunkenness ?" 
 
 " I do not know. A large proportion. More than half." 
 
 " You say that since 1834, the number of drunkards has increased. Has there been 
 a corresponding increase of other offences, such as theft, &.c. ?" 
 
 " 1 do not know positively, but believe not." 
 
 " Hovy great an increase of the police would it take to enforce the new law ?" 
 
 " I think it would take every bayonet in the city to enforce it." 
 
 " Would licensing houses of ill fame decrease that vice ?" 
 
 " 1 cannot say. The popularity of the vice is not the same. One is an acquired 
 fopensity. The other not." 
 
 "Do you mean to say that the whole military force of the city would be requisite to 
 tftforce the license law?" 
 
 " The attempt to enforce it would be so hazardous that it is impossible to say what 
 s-neans would be necessary to preserve order." 
 
 " You say that intemperance has increased during the last year, in consequence 
 af the law. Do you mean that the drunkard gets drunk oftener, or other people drink 
 more in anticipation of the enforcement of the law?" 
 
 " I believe both." 
 
 [We regret that owing to the noise and confusion of persons constantly 
 coming in and going out of the hall, and the low tone of voice in which 
 the questions were put and answered, we were unable to hear a large por- 
 tion of the testimony. What we did hear of Mr. Eliot's answers appeared 
 to be very prompt, very much to the point, very appropriate, very apt, and 
 he did not seem at all disconcerted by the severe cross questioning which 
 he underwent.] 
 
 THE MAYOR'S LETTER TO MR. DEXTER. 
 
 City Hall, Jan. 30, 1839. 
 
 My Dear Sir, — 
 
 It is stated in one of the papers, this morning, that I was ex- 
 amined as to the probable effect of the law of the last session, respecting licensing. 
 i do not recollect that any direct question of that kind was put to me, and I avail 
 myself of a few moments leisure to state to you what, in my opinion, will be its effect, 
 if it be persevered in by the Legislature. Some three thousand or four thousand male 
 adults, legal voters, in this city, will find themselves suddenly cut off from their 
 iccustomed means of indulgence of established habits — some, of the temperate, and 
 some, of the intemperate use of ardent spirits. Of these, a large proportion will be 
 entirely deprived, by want of means, from the power of obtaining any of their usual 
 beverage, except by some evasion of the law, or open disregard of it, or by the very 
 bad expedient of clubbing together to purchase fifteen gallons, and then dividing it. 
 Besides these, a large number of dealers would lose their customers; and it cannot be 
 supposed that all these persons will submit quietly to what they regard as an infringe- 
 ment of their rights. Open violations of the law, and secret evasions of it, will take 
 place ; and \kt* enforcement of it can but set one portion of the population against
 
 47 
 
 another, and produce a scene of confusion and tumult unparalleled. Jn all this the** 
 is not the least progress of temperance. 
 
 I was asked yesterday if great good would not ensue from the law ? I answered — 
 none which may not be produced by other means, without the agitation which is cer- 
 tain to be the effect of this. The temperance party seem to think this law is the only 
 means of doing good in the cause. They regard it as a father does a pet child— a 
 paragon of perfection, which it never was. Other laws may be devised, in my opinion, 
 much more effectual; and a great objection I have to the law, is the probable opposite 
 tendency of it, viz. — to intemperance. Restrain, — make it difficult for the men 1 have 
 spoken of ahove, to indulge themselves to excess, but not impossible. Leave them to 
 their own free moral agency — put down the limit from fifteen gallons to a quart, or a 
 pint, so that the poorest man may get intoxicated if he chooses ; and then close the 
 dram shops, i. e. say that none shall be mixed or drunk on the premises of the seller, 
 (excepting taverners,) and I would guarantee, for a small premium, a great progress 
 to the temperance cause, in a short time. 
 
 In answer to the question asked me yesterday, as to the facts on which rr.y opinion 
 was based, that licensing hnd a tendency to check intemperance, 1 ought to have said, 
 in addition to the increase of intemperance in the city, that statements, which I be- 
 lieve to be true, have been often made to mo of the increase of the sale of ardent spirits 
 by wholesale dealers, the Inst year,— especially to those markets where prohibition hag 
 taken the place of regulatioji. I do not know whether this is evidence, but I wag 
 asked the grounds of my opinion, and had I been sufficiently collected, should hava 
 answered in this way. 
 
 I observed an attempt to make it appear that the increased vigilance and activity 
 of a temperance man as City Marshal, had revealed all the increased number of casea 
 of drunkenness. But he has nothing to do with those cases-- they are reported and 
 complained of by the police officers and the watch, fie, by the way, is as much op- 
 posed to the late law asT._aro. 
 
 ] put this note into yo'ur harm's to make use of as you deem expedient. If you think 
 proper to call on me to make such statements to the committee, viva voce, 1 am ready-; 
 but as I have three other legislative committees to wait upon at thi>; time, I should 
 rather be excused, if this may be received instead. I write as I should speak, unde* 
 the responsibility of my oalh. Yours very truly, 
 
 SAMUEL A. ELIOT. 
 To Frakklin Dexter, Esq. 
 
 Jan. 31, 1839.— E. J. Baker, of Milton, Norfolk County. In this CYmniv nv 
 licenses have been granted by the County Commissioners, since 1835. The proaibjUwx 
 has increased the sale in many places. Previous to 1835, there were about ten Ik&aStgr 
 in Milton, and the places generally well regulated. There are now six or ei*S? 
 places where spirits are sold. The better class get it at particular houses. Others gsa 
 it in cellars and secret places, and at Irish houses. So long as licenses existed, tt-i 
 sale was confined to licensed places. The sale has increased, and drunkenness uatt 
 increased, within the past year. Has not seen so much drunkenness for six years, t.j 
 in the past year. The law was evaded, and the Sunday law had mil ueen enforced. 
 It was openly violated in many places. He called at a tavern the other day U>t 
 whiskey punch, and was told he could have wine punch, — but the wine punch was 
 made of whiskey. 
 
 The name of the taverner was demanded by the counsel for the remonstrants. The 
 witness replied that he would gh'e any information in his power, to aid the committee 
 in these inquiries, but he could not disclose the names of persons, to subject them to 
 prosecution. 
 
 After a discussion by the counsel on both sides, Mr. Senator Walcot, Chairman of 
 the Committee, without taking a vote in the Committee, decided that the name must 
 be given. Witness declined, and the Chairman refused to hear him any further. 
 
 Josiah Braolee, of Boston, was called, and Mr. Hallett proposed that the form of 
 oath be to make true answers to questions, which was the proper Parliamentary form. 
 Mr. Lincoln, of Worcester, moved that the usual form of the judicial oath be adminis- 
 tered, and the Committee so ordered. 
 
 Mr. Bradlee testified that he was an importer of spirituous liquor. Is a larwe dealer 
 in brandy and gin, and imports and sells as much as he ever did. His general sales 
 are probably larger than ever. The demand is beyond the supply in the market at 
 present, particularly for brandy People were very dry. A cargo of brandy was 
 expected, and they were calling for the article earnestly. The whale ships from New- 
 Bedford, do not carry out rum now. There eould not be any considerable quantity 
 taken out of New-Bedford in that way. If sent there, it must be consumed in some 
 other way. He had for many years supplied orders for the whale ships. Formerly 
 they carried out spirits, but now it was voluntarily discontinued, without any law 
 {eq«jiring it. He had had only two orders for rum for whale ships, in &even years.
 
 From Iris observation about the wharves, lie believed there waa £.s mwc'h eptrrtaose 
 liquor shipped to New Bedford now, as there ever was. Last week he saw seven pipes 
 of brandy put on board a vessel for New Bedford. From all he saw, he was satisfied 
 that there was no diminution in the quantity of spirits sent to New Bedford, but rather 
 an increase. Saw six casks yesterday going on board a New Bedfor.d packet, and the 
 Captain said he had thirty barrels of spirits besides, then on board. 
 
 On cross examination. The shipment of spirits to New Bedford, is certainly 
 greater than ever. More or less brandy, gin, rum, Ac. are constantly alongside the 
 New Bedford packets, in front of my store. Twenty years ago, orders were universal 
 for ardent spirits, in fitting out ships. Now they are entirely out of use. My orders 
 iiave discontinued entirely. 
 
 Ezra Wjgstok, Jr. City Marshal of Boston. — Has the immediate superintendence 
 .of the police department. 1 should suppose that the law of 1838, could not be enforced 
 in the present state of society, "it would require, in order to enforce it to any extent, 
 means entirely different from the ordinary mode of enforcing the laws. Cannot say 
 •what number of extra police, but it must be very large. A large portion of the dis- 
 order in the city arises from intemperance. In my opinion, this law will not diminish, 
 fbut rather increase this evil. I do not think it will decrease, but be likely to increase., 
 the number of places where liquors will be sold. The secresy of the places would be 
 jiksly to increase vice. The secret places are much more injurious than open and 
 licensed ones. These last are under the eye of tiue police. The former it would be> 
 •difficult to reach. The present number of licensed places is four hundred. Jf no 
 licenses were granted, there would no doubt be as many places open, and as many to 
 cell without, as with licenses. Temperance would be better assisted by regulation 
 lhan by prohibition, unless other means than can now be used, are resorted to. Have 
 taken an interest personally in the subject of temperance. From my own observatioB 
 am satisfied that places where ardent spirit is sold, are more frequented now than 
 ■formerly. Know no other cause for this than the effect of restraint by law. My 
 opinion is, that many drams are taken because those who drink them believe they are 
 ■asserting a public and private right. 
 
 On cross examination. Most of the cases of intemperance that fall under the City 
 police, come from low grog shops — places that are not licensed. But very few of the 
 licensed places are low. Most of these low grog shops were licensed many years ago. ; 
 but more care is now taken As to the enforcement of the law in Boston, it would 
 depend mainly on the sense of obligation the dealers and buyers might feel to obsarve 
 sit. The nature of the evidence is difficult for the police to get at, and the mode of 
 :doing it, if pressed, would be unusual. There are probably three hundred tenements 
 in whvr.h the article is sold without license. Believe that at least half, say two hun- 
 dred, of those now licensed, would continue to sell if this law is not repealed. 
 
 ;[Rev. Mr. Cobb, of VValtham, one of the agents of some of the Societies, employed 
 54o appear in behalf of the law, here proposed a very long and elaborate query as to the 
 iKoral effect ot a moral law, in producing moral influences favorable to the observance 
 <of the moral law ; which the intelligent and very correct witness, said it was impos- 
 sible for him to comprehend. The examination then proceeded.] 
 
 •Question, by Mr. Upton, of the Committee. Which would do the most injury.; a 
 public respectable place, or one of the secret low ones ? Jlnsiccr. Decidedly the latter. 
 
 By the same. What would be the effect on public morals, if all the respectable 
 dealers should be stopped by this law? Answtr. It would have a very bad effect 
 upon the morals of this city, to drive the business out of respectable hands, because it 
 would go into bad ones, and be productive of much greater evil in the communitty. 
 If this law went into general operation, such he believed would be the effect as to the 
 respectable and intelligent dealers. Jf all licenses were denied, the sales would be as 
 great, but not so public, and not so likely to be detected where the law is violated. 
 Much the larger number of intemperates taken up in Boston, are foreigners, but resi- 
 dents of the city. Such persons would* be most likely to find supplies, at unlicensed 
 places, if all licenses were withdrawn. 
 
 George Pennijman. — Is a clerk of the Granite Rail-Way Co., in Milton, six or 
 seven miles from Boston. Formerly there was one house licensed there. The traffic 
 is now carried on clandestinely, and there is more liquor used, than when it was sold 
 openly. An Irishman runs a wagon to Boston, and the workmen send in and get 
 supplies. They carry it home, and instead of drinking occasionally, as before, at the 
 public houses, they drink more, privately. If I wanted liquor, I should send to Boston 
 for it; but if J asked an Irishman to get it, and promised to ask no questions, he would 
 bring it to me in two minutes. New rum sells at a dollar a gallon, — worth forty cents 
 in Boston. Drinking has increased since this law, and there is more drunkenness 
 than formerly in that place and the vicinity. 
 
 The Company do not allow liquor on the works. They consider it for their interest 
 to exclude it. if the whole country were to adopt prohibition, it would work w.ell f 
 if it could be enforced. 
 
 £a answer to questions by Mr, Upton. Thwe is more used than there was whfts:
 
 49 
 
 there was a public licensed store. Thinks the reason is, because the laborers now 
 keep it in their houses, and it is a shorter way to a man's chest or closet, than 
 to a shop. 
 
 Ftbruary 1, 1839. 
 
 Moses Williams of Boston, of the firm of J. D. & M. Williams, was 
 offered as a witness to show the amount of sales made to counties in which 
 all licenses have been denied. 
 
 Before taking the oath he wished to understand the views of the Com- 
 mittee as to one question that might be put to him. On Tuesday last, he 
 had taken from the books of ten or twelve distillers and dealers in Boston, 
 the amount of sales of spirits made the last year,, and sent to neighboring 
 Counties where there are no licences. He was one of those dealers, and 
 they were all ready to testify to the correctness of the statement, respect- 
 ively. He had supposed that the Committee, in obtaining statistical facts, 
 would be satisfied with the oath of individuals who have made the sales, 
 without requiring the names of their customers. From what occurred 
 at the last meeting, it would appear that the names of the buyers would be 
 required. He reserved the privilege, in his business transactions, of not 
 publishing the names of his customers, without their consent, unless he 
 was compelled to do so, and if the committee did not wish to receive his 
 statement, under oath, with that qualification, he did not feel at liberty to 
 make it voluntarily. 
 
 Mr. Stowell of New Bedford one of the Committee, objected to 
 receiving any statement, unless the names of the persons it was sold to 
 were given. 'If 79,000 gallons had been sent to Bristol County, he wanted 
 to know who had got it, and what had been done with it. If he believed 
 it had gone there, he should be in favor of the repeal of the law. 
 
 Mr. Blake of Boston, did not see the necessity of splitting legal hairs, 
 in a general inquiry before a Committee of the Legislature. The names 
 could not be material, and would give no additional information on which 
 the Committee could act. The facts of the sale, and the conveyance to 
 these Counties, were the prominent points of the inquiry. 
 
 Mr. Lincoln of Worcester, insisted on the names. The object of the 
 inquiry would be, a cross examination, to test the truth of the statement of 
 the witness, and follow it out in all its ramifications. 
 
 Mr. Brayton of Nantucket, would be willing to adopt the rule to ask 
 no person to expose the name where it would subject the witness to a crim- 
 inal prosecution ! 
 
 The Chairman was of opinion that if the question was put it must be 
 answered, and after a discussion by Messrs Sprague and Hallett, for and 
 against, the Committee decided that the names must be given. 
 
 Mr. Hallett said he regretted the decision, as it obliged him to with- 
 draw all further testimony on the part of the memorialists who would now 
 attend the hearing as spectators. 
 
 The Chairman called on the opposite side to proceed, but not expecting 
 to be heard at this sitting, they were not prepared, and the Committee* 
 adjourned. 
 
 At the next meeting Mr Dexter appeared with Mr. Hallett for the Me- 
 morials, and urged the reconsideration of the decision respecting the 
 testimony, but the Chairman inflexibly adhered to it. It was su^t lined 
 by a majority. Mr. Hallett then read and presented the following state- 
 ment : — 
 
 7
 
 50 
 
 PROTEST PRESENTED TO THE JOINT COMMITTEE 0? 
 THE LEGISLATURE ON THEIR RULE EXCLUDING 
 
 TESTIMONY. 
 
 The opening Counsel fur the Memorial of Harrison Gray Otis and others, 
 respectfully submits the following to the Joint Committee of the Legisal- 
 ture, in behalf of the Committee of citizens who have petitioned for the 
 repeal of the law of April 19.. 1838.. 
 
 The citizens who have appeared before the Joint Committee of the Le- 
 gislature, with a view to aid their inquiries into the matter committed to 
 Them on the Memorial of Harrison Gray Otis and others, and the remon- 
 strances against said Memorial — viz: whether the License Law of April 
 19, 1838, ought to be repealed ; would respectfully present their protest 
 against the rule adopted by the Committee relative to the examination of 
 witnesses, which rule has unexpectedly put it out of their power to produce 
 important and material evidence bearing upon the question of the inexpe- 
 diency and impracticability of that law, as a prohibatory act against the 
 sale of spiiituous liquors. 
 
 The subject referred to the Committee of the Legislature, is one relating 
 to a general law, and not a private act, and affects all the citizens of the 
 Commonwealth. 
 
 The Memoralists, therefore, do not appear as parties' to the issue, nor as 
 representing a private interest — but voluntarily, in the exercise of a right 
 common to all and secured to the people, viz. " to give iustructions to their 
 representatives, and to request of the Legislative body, by way of address, 
 petitions or remonstrances, redress of the wrongs done them" by the opeca,- 
 tion of the laws. 
 
 They also appear as petitioners, under the general right of the citizens, 
 secured by the Constitution, to require of their law-givers an exact and 
 constant observance of the fundamental principles of the Constitution, " in 
 the formation of the laws necessary for the good administration of the 
 Commonwealth." Believing this Taw to he wholly unnecessary, for that 
 purpose, they ask for the revision of a law, which thev believe the Legisla- 
 ture ought to revise under the provision that requires them to assemble 
 frequently " for the redress of grievances, for correcting, strengthening and 
 confirming the laws, and for making new laws, as the common good may 
 require." They disclaim therefore, either the interest or the liabilities o£ a 
 party to a suit or to a private petition. 
 
 The inquiry before the Joint Committee is, whether the law of April 19, 
 1838, is " necessary for the good administration of the Commonwealth," 
 and whether the common good requires that law to be repealed,, and a new 
 law to be made. 
 
 To form a just opinion in a matter where the operatiou of an existing 
 or proposed law on the common good is doubtful, and where the citizens are 
 nearly equally divided as to the beneficial or injurious effects of such law, 
 the Legislature must, to a great extent, rely on such facts as can be laid 
 before them ; not as judicial evidence, bHt as means, as far as they go, of 
 enabling men of sound judgment to arrive at correct conclusions. 
 
 For this purpose alone, we conceive, can Legislative Committees inves- 
 tigate facts and receive testimony or statements from citizens inrelation to 
 a public law ; because the Constitution forbids the Legislature from " ever 
 exercising the Judicial power." They cannot, therefore, exercise the pow- 
 ers and process, or be restricted to mere judicial forms of Courts of law, in 
 receiving testimony ; because the purpose is not to try or to punish, but to 
 ascertain from the best means within their reach, whether an existing or 
 proposed law is " necessary" and "for the common good." In the event
 
 ol 
 
 then of being unable to obtain all tho facts that might be desirable lo arrive 
 at certain results beyond all possibility of doubt, would the Legislature en- 
 tirely reject such information and such facts presented to them as might 
 tend to aid in forming some opinion of the effect and operation of a law 
 disapproved by a large portion of the people, as unnecessary, ineffectual 
 and unjust ? 
 
 An intelligent Committee could always discriminate as to the value and 
 credibility of testimony ; and if a witness should decline answering a que.-.- 
 tion, on ihe ground that it might implicate himself or others, they could 
 never be at a loss to determine how much it ought to deduct from the 
 weight ol his whole testimony. They may exercise a dispensing power, so 
 as to get at substantial truth, without invading private relations of confi- 
 dence. 
 
 The clear distinction bet-ween Judicial and Legislative testimony wo 
 . conceive to be this — Judicial evidence binds those who are to act upon it. 
 The juror is sworn to give his verdict according to the evidence, and there- 
 fore none but strictly judicial evidence should be admitted. 
 
 A Legislative committee of inquiry as to a public law, are not sworn to 
 decide according to the testimony, nor are they bound to regard it at all as 
 controlling their own judgment and convictions of right and expediency. 
 The evidence is only another form of argument to enable them, as far as 
 practicable, to arrive at correct conclusions, and they have full pow< r to 
 recommend to the Legislature to make or unmake a public law, without 
 any evidence at all, or with such evidence as it was in their power to obtain. 
 
 A Judicial tribunal cannot act on matters of fact, unless they are judici- 
 ally proved, nor can it excuse a witness fiom answering any question a 
 party has a legal right to put. A Legislature may rightly act on mere sug- 
 gestion, and may excuse* witnesses from answering, on merely personal and 
 confidential relations. 
 
 The question, then, is, whether a Legislative Committee on a public law, 
 should exclude all but strictly legal and judicial testimony, and should the 
 witnesses before them be bound to conform to strict judicial rules of evi- 
 dence, or be entirely excluded 1 
 
 Under the rule of Judicial evidence insisted on by the Committee, every 
 witness is excluded who will not answer every question that might be put 
 to him in a court of law. If the Committee have power thus to exclude 
 testimony, on a technical objection, ought they not first to have the powtr 
 to summon witnesses and to compel them to testify \ 
 
 In the present case, they have no such power, either to summon, to com- 
 pel attendance, or to enforce answers ; nor can they give this power, bv any 
 process, to the memorialists. If, then, they cannot aid the memorialists iu 
 compelling the attendance and disclosures of witnesses at all, should they 
 reject the testimony which is offered, as far as the memorialists can prevail 
 on witnesses to testify; thus in effect, holding the citizens, who, in a mat- 
 ter of general interest, desire to aid the Committee in the " formation of the 
 laws necessary for the good administration of the Commonwealth," respon- 
 sible, as a party, for full disclosures from witnesses, whom neither they nor 
 the Committee have any power to summon or compel to testify ? 
 
 The Committee of the Legislature are not empowered to send for per- 
 sons and papers. It is not in the power of the Memoralists to invest them 
 with that authority. We have shown them what can be proved, and have 
 used all the means in our power, to furnish the testimony. If the Com- 
 mittee reject this and take no means which they may have, if any, to pro- 
 cure the evidence, it necessarily excludes any evidence whatever 'being 
 given on those points of the investigation, which would show that prohibi- 
 tion tends to increase demand ; for by the rule, as adupted, theCummittaa
 
 m 
 
 of the Legislature exclude all testimony, if, in a single particular, it trees 
 not conform to strict rules of judicial evidence. Ifthe Committee desire to 
 obtain the evidence, it is in their power to enforce it, not in ours. 
 
 The citizens who appear for the Memorial, have done all in their power 
 to procure the pirticular evidence which has been excluded. At the com- 
 mencement of the inquiry, the Chairman of the Committee was applied to 
 by the Counsel for the Memorialists, for a process to summon witnesses. 
 lie declined, not having the power to summon. He was then requested to 
 invite the voluntary attendance of such as should be named. This was also 
 declined. Consequently the Counsel for the Memorialists could only invite, 
 and could not require, the attendance of any citizen. 
 
 If the Committee of the Legislature have not the power to summon a wit* 
 ness before them, can they, if he voluntarily appear, exercise the powers of 
 a Judicial tribunal over him, and compel him to remain in attendance, and 
 to answer all questions put to him? It is presumed they cannot. Must, 
 then, the refusal to answer a question that may tend to criminate others, 
 and the answer to which the Committee has no power to enforce, necessa* 
 rily exclude the witness as incompetent to testify at all 1 Must it go to 
 his competency in fact, and not to his credibility ? 
 
 To assume that those who have conducted the inquiry, on the part of 
 the Memorialists, have the power to comptl witnesses to appear, and answer 
 all the proposed questions, and that, therefore, they are responsible for the 
 withholding of names in private business, would be incorrect, and in fact 
 unjust to them. The practical question is, we conceive, will the Legisla- 
 tive Committee receive such evidence as we can obtain, or will they reject 
 the whole because we cannot get more. 
 
 The state of the case, as we understood it, at the close of the last hearing 
 before the Committee, was this : — The law of 1838 proposes prohibition of 
 the sale of ardent spirits under fifteen gallons, as a means to promote, not 
 temperance, w.hich implies a moderate use, but total abstinence from their use, 
 as a beverage. The inquiry is, will such a law diminish the sale and con- 
 sumption of the article, and promote the proposed end of the law. To aid 
 in such an inquiry, statistical facts, as to the increased or diminished 
 amount of importation into the State, and of the sales of the article in one 
 part of the State, to be sent to other parts of the State, are highly import- 
 ant. The memorialists petition against the law of prohibition " because (in 
 the language of the memorial,) it must fail of the professed object, and will 
 not succeed in restraining appetite, which will be indulged by combinations 
 and evasions, to a greater extent than without this ineffectual attempt at 
 restraint." 
 
 They have shown, by the best possible testimony, that of the Mayor and 
 Marshal of the city of Boston, that a law of regulation can be better en- 
 forced, to promote temperance, than a law of prohibition. They also show, 
 from the Custom House returns, that the increase of imported ardent spir- 
 its in that city, the past year over the former, is lOG.OOO gallons, after de- 
 ducting all exported; and that the whole amount imported and I aft for 
 home consumption the last year, was 393,981 gallons. The increase is the 
 more remarkable, as the pecuniary pressure of 1837 must have operated 
 greatly to diminish the importations of 1838, in this as in other articles. 
 
 They next proposed to show that the sales, at the place of importation, 
 have increased, as the pressure of the laws against it have increased ; and 
 that large and increased sales of foreign, and especially domestic spirits, 
 have been made the last year, in this city, to be sent to the counties of 
 Bristol, Nantucket, Plymouth, and Norfolk, in which the law of prohibi- 
 tion, by entire refusals to license, has in effect prevailed; and that those, 
 .ho have made those s;des, have fouud the demand increase since 1833^
 
 63 
 
 especially the past year. The bearing of such facts is direct upon the ex* 
 pediency and practicability of the existing law, insomuch that one of your 
 honorable Committee stated that if convinced they were so, it would oper- 
 ate on his mind to induce him to go for the repeal of the law. 
 
 The Counsel for the Memorialists, proposed to prove these statistics in 
 the following manner: — The private books of ten manufacturers and four 
 grocers in Boston, show, that they sold, of ardent spirits, from January ], 
 1838, to January 28, 1839, to be sent to those Counties, on the orders of 
 persons not engaged in exporting them, an aggregate of 79,643 gallons 
 for Bristol County, 14,213 gallons for Nantucket, 30,543 for Plymouth, 
 and 42,540 for Norfolk, Bristol and Plymouth : a total of 166,945 gallons, 
 equal to 1518 puncheons, of 110 gallons each, averaging, by the census of 
 1830, at the rate of four and a half quarts of ardent spirits to every man, 
 woman and child, in those counties. 
 
 This sale could be shown from a very few sources, the bulk of it beinc 
 domestic spirits; and, it would obviously not include all that had gone in 
 that direction from New York, Providence, and other sources. Does it 
 not then raise a reasonable doubt as to the efficacy or possible enforcement 
 of a law of prohibition? 
 
 This statistical information being highly important to enable the Legisla- 
 ture to judge, whether a law of prohibition, is not in its effects, a law to 
 promote, rather than restrain intemperance; the question is also important 
 how can it be got before that body. The remonstrants, by their Counsel, 
 raised a technical objection on the cross examination, that the fact of the 
 sale should not be given, unless the names of the purchasers were dis- 
 closed also. The witnesses, to verify these facts, had been sworn. They 
 are beyond the most remote suggestion as to veracity, but they cannot be 
 compelled to disclose the names of their customers, though ready to give 
 every other fact in their power. The facts relate to their private busi- 
 ness, aud are contained in their books, over which the Legislature can have 
 no control. Some of them are signers to the memorial, and some are not ; 
 but in neither case, has the Counsel or the Legislative Committee any 
 power to compel them to disclose the names of their customers. They do 
 not know, nor do they assume, that these customers have violated any law; 
 but in the relation of merchant and purchaser, they say they hold it a point 
 of honor, not to voluntarily disclose their private business, so as, indirectly 
 to be made informers themselves, or to mark out individuals without their 
 consent, for the espionage of either moral reformers or legal informers. 
 The very material difference between volunteerng such testimony, and 
 giving it under compulsory process, to criminate others, is obvious to every 
 honorable mind. 
 
 The Legislature has never exercised an inquisitorial power, to compel 
 one class of citizens to testify so as to lead directly or indirectly to the 
 prosecution of another class; especially in a case like this, where the only 
 material facts wanted, as a matter of statistics, viz. the sale for, and send- 
 ing to, certain places, can be fully substantiated, beyond a doubt, without 
 this invasion of the private relations of business. 
 
 The Memorialists cannot obviate this difficulty. Those of them who 
 have not the facts, cannot control those who have ; nor can those, whether 
 Memorialists or not, who have the facts in their possession, disclose the 
 names of individuals, if, as honorable men, they feel bound not to do so to 
 their probable injury, unless required by absolute necessity, or moral obliga- 
 tion, or due process of law, neither of which is applied in this case. 
 
 A Committee for legislative inquiry on matters of public concern, may 
 exercise discretion and dispensation as to the form in which the evidence 
 shall be received. It may be by statements not under oath, which is not
 
 54 
 
 without precedent in this State. In the British Parliament, the great mass 
 of statistical and other facts, collected by committees, in reference to gen- 
 eral laws, is received as voluntary statements, witnesses not being sworn 
 before such committees. 
 
 Disclosures that might effect the pecuniary and private interest of third 
 persons, are frequently dispensed with by legislative committees of inquiry. 
 In the exercise of full powers to examine the banks charged with a viola* 
 tion of charter, a Committee of this Legislature, in 1835, did not require 
 the officers of the banks, under oath, to give the names of their customers, 
 and the Sub-Committee appointed to inspect the books, made no disclosure 
 of the names of persons on the discount sheet; regarding the confidential 
 relation of the banks to third persons. 
 
 In the investigation of the United States Bank, by a committee of Con- 
 gress with full powers, in 1S34; the Directors of the Bank, when summon- 
 ed by a writ of dates tecum, before the Committee, refused to exhibit the 
 names of Members of Congress, and others, to whom the bank had made 
 discounts, or to state the contents of " the credit books of said bank, show- 
 ing the indebtedness of individuals," alleging that, though ready to give 
 all necessary information to show the pecuniary condition of the bank, 
 they could not disclose the names of individual debtors, with "a necessary 
 regard to the rights of others." 
 
 A majority of the Committee reported this refusal to the House, as a 
 contempt, and moved for compulsory process; but the House, did not sus- 
 tain the motion. The report of the minoiity, presented to the House, by 
 Hon. Edward Everett, and Hon. W. W. Ellsworth, justified the course 
 pursued by the witnessess in the investigation, on the ground that "they 
 had phcei themselves where American citizens, conscious of their rights, 
 should place themselves, under the protection of the laws." 
 
 This precedent is not cited as parallel to the present case, farther than 
 it may rightly go in the estimation of the Joint Committee of the Legisla- 
 ture who have deemed it their duty to require a similar disclosure by wit- 
 nesses before them, of the names of individuals, not parties to the issue, 
 nor present, whose pecuniary or other interests may be injuriously affected 
 thereby. Of the refusal of the witnesses, summoned before the Commit- 
 tee 'of Congress, to disclose the names of their customers, the report of 
 Messrs. Everett and Ellsworth says, — " the call related to concerns involv- 
 ing the highest confidence of individuals, and not to be divulged, except 
 under le^al compulsion, without the grossest breach of faith." 
 
 Such is precisely the relation of the witnesses we have offered, to their 
 customers; and the propriety of the exemption from a breach of confidence 
 in business transactions, except under compulsory process, would seem to 
 be much stronger in this case than in the one cited ; because the Commit- 
 tee of the Legislature, who decline receiving any other testimony from the 
 witnesses, unless they will voluntarily commit this breach of confidence, 
 have not the original power of summoning a witness, or enforcing disclos- 
 ures, and must rely on voluntary testimony alone, or reject all testimony, 
 to aid them in reporting to the Legislature their opinion of the expediency 
 or inexpediency of a law of prohibition. 
 
 The call for names was not made by the Committee to satisfy themselves 
 of the fact of the aliened increased sale and transportation of liquors to par- 
 ticular places, the Chairman of the Committee having stated that it was 
 not desired by them, but that the counsel for the remonstrants demanded, 
 and were entitled to it, to enable them to trace the uses to which the arti- 
 cle may have been put. The Remonstrants not being a party to the issue 
 before the Legislature; and appearing merely as citizens to aid the Com- 
 milteu in forming a correct opinion to report to the Legislature, the abso-
 
 55 
 
 IfHe right of such a demand on their part, not originally desired by tire 
 Committee for their own information, is not clearly perceived ; nor could 
 it aid the investigation, should the names be given, because the Commit- 
 tee of the Legislature, having no power to summon the purchasers here, or 
 to compel them to criminate themselves if here, could not proceed any- 
 farther with the names than without them, in tracing the precise uses to 
 which the merchandise may have been put. 
 
 We have offered to show by the testimony of manufacturers and 
 grocers, and their clerks, (the particulars of which are appended to this 
 protest) the entry of sales in their books, with specific dates and amounts 
 in every item; the orders for specific places, and the actual forwarding of 
 the article to persons known to be tavemers and retailers in those counties, 
 with the particular mode of transportation ; in a word, every fact connected 
 with the transaction, except the names of individuals who might be inju- 
 riously affected thereby, in their private interests. 
 
 All these facts, except the names, might have been given, on the exam- 
 ination in chief, reserving the right, on the cross-examination, to withhold 
 what could not be voluntarily disclosed, with "a necessary regard to the 
 right, of others," and without "involving the highest confidence ofindi- 
 viduak;." But it waB deemed more respectful (o the Committee, and more 
 honorable to the witnesses, frankly to state the extent to which, without 
 compulsory process, they could testify. Such a course it is confidently 
 believed, cannot, in the minds of the Committee, or of any honorable men, 
 prejudice any cause. 
 
 At the last hearing before the Committee, the Counsel for the Memo- 
 rialists desired delay for deliberation as to the course they would pursue 
 under the rule adopted. It was also suggested, as a means of fully satisfy- 
 ing the Committee of the Legislature, that a Sub-Committee might have 
 the inspection of the books without a public use of names, if this would aid! 
 in the developement of the facts. This, however, the Committee did not 
 think proper to adopt. 
 
 The memorialists were accordingly, by the operation of (his rule, 
 deprived of the right of producing evidence of material facts, and there- 
 fore deemed it proper, as they could not not go on under the restrictions 
 put upon the inquiry, to withdraw all further testimony or any right they 
 might urr;e, to restrict whatever testimony the Committee may think proper 
 to receive from the other side of the question ; respectfully protesting against 
 the rule, and reserving the right at the end of the hearing on that side, to 
 be heard by their closing Counsel. 
 
 In relation to the testimony to be offered by the Remonstrants, we would 
 respectfully suggest, that should the evil effects of intemperance, or the 
 beneficial operation of prohibitory laws, on pauperism, crime, morals or 
 government, be presented as the basis of an argument or inference; why 
 the Legislature should enact such laws against the sale of alcohol under 
 fifteen gallons, would not the Committee, by the rule applied to us, reject 
 such evidence, unless each fact is Judicially and fully proved, and the 
 names of the individuals/on whom such alleged effects have been produced, 
 disclosed, in order to enable those who doubt the application of the facts, to 
 trace them in all their ramifications, and ascertain whether the results, or 
 a portion of them, are not fairly attributable to some other evils and vices 
 in society? The object of presenting this statement to the Committee, is 
 to avoid any misapprehension in their minds, or with our fellow citizens, 
 as to the position in which the Memorialists conceive they stand, in this 
 stage of the enquiry. 
 
 Feb. 5, 1&39. Read and presented te the Committee.
 
 56 
 Sa'ti of ardent spiritsAn 1838 for Counties where no Licences were granted. 
 
 Statement for the sales for Bristol County, from January 1, 1838 to January 20, 1833. 
 
 Population in 1830, 49,474. 
 Gallons. Gallons. 
 
 Barnard & Trull 10,748 
 
 Josiah Stickney & Minot 27,825 
 
 A. S. Holmes" 907 
 
 Foss & Gilmore 7,605 1-2 
 
 A. H. Bowman 6,519 
 
 Ezra Trull 1,733 
 
 Luther Felton 1,880^-57,223 1-2 by 7 Diallers. 
 
 Wrio-ht Priest & Co. 10,204 
 
 J. D. & M. Williams 3,578 1-2 
 
 R. M. Morse & Co, 3,584 
 
 Silas Pierce & Co. 3,307 
 
 Littlehale &- Co. 1,080—52,119 by 5 Grocers. 
 
 Total 79,043, equal [to 724 puncheons of 110 
 gallons each. 
 
 Sales for Nantucket during the same time. Population 7,203 in 1830. 
 
 Gallons. Gallons. 
 Wright, Priest & Co. 5,385 
 
 Robinson & Wigo-in 1,080 
 
 Josiah Stickney & Minot 4.183 
 
 H. D. Gray 2,9041-2-14,213 1-2, equal to 129 puncheons of 
 
 110 gallons each. 
 
 Sales for Plymouth Cour 
 
 »ty 
 
 during same lime. Population 
 
 Barnard «fc Trull 
 
 
 5.721 
 
 David Barnard 
 
 
 0,000* 
 
 Josiah Stickney &. Minot 
 
 
 105 
 
 A S. Holmes 
 
 
 3,150 
 
 Gardner Brewer 
 
 
 1,783 
 
 Foss & Gilmore 
 
 
 5.385 
 
 Ezra Trull 
 
 
 1,708 
 
 Smith & Morse 
 
 
 024 
 
 Luther Felton 
 
 
 4,202 
 
 John M- French 
 
 
 1 ,500— 28,298 by 10 Distillers 
 
 R. M. Morse & Co. 
 
 
 1,558 
 
 Merriam & Perry 
 
 
 1,287—2,845 by 2 Grocers. 
 
 Total 31,143, equal to 233 puncheons of 110 gallons each. 
 
 Norfolk, Plymouth, and Bristol. 
 Ezra Trull 950 
 
 Luther Felton 9,590 
 
 A. & J. Felton, for Bristol, Norfolk ) 
 
 and Plymouth: 5 32,000—42,540. 
 
 Total 107,545 gallons. 
 
 Before the foregoing protest was 'presented, the following proceeings oc- 
 curred : — 
 
 Objections to tlie rule of the Committee, excluding evidence against the Laic. 
 At the meeting of the Committee, on Tuesday afternoon, February 5, 
 the Chairman, Mr. Walcot, stated that the Committee had met to hear the 
 counsel for the memorial of Jonathan Philips, and others, against the repeal 
 of the law. 
 
 Fkanklisn Dexter, Esq., Counsel for the Memorial of Harrison Gray Otis, and 
 others, rose and said that he was not present at the last hearing, when the testimony 
 on the part of the memorialists, touching the increased sales in several counties where 
 prohibition had been adopted, was excluded by the course of the proceedings, and as 
 he wished precisely to understand the grounds of the objection, he would state to the 
 Committee that the witnesses who had been called, were prepared to show that the 
 spirit sent by them to those counties the past year, went there for consumption as a 
 
 -Say 4400. [Corrected by Mr. B.]
 
 57 
 
 beverage, the sales having been made to taverns and retailers. They were prepared 
 to state the particulars so lully, reserving only the names of purchasers, as to place the 
 matter beyond all possible doubt of the only material fact, viz: the sale for consump- 
 tion, and no other purpose, and he submitted to the Committee whether the inemori- 
 alists should be permitted to offer this 
 
 Mr. Walcot, the Chairman, said that the Committee had agreed on the form of oath, 
 which was, to tell the whole truth, and it was for the witnesses to say whether they 
 ■vould take the oalli. It was not suggested at the former hearing, that the occupations 
 of the purchasers would be given, to prove the destination of the liquor. This, how- 
 ever, would not relieve the witness, on the cross-examination, from answering a call to 
 disclose the names of the purchasers. 
 
 Mr. Dexter. — I think it is fair that the witnesses should have the opinion of the 
 Committee, as well as of the Chairman, on the suggestion now made. I shall advise 
 them to take the oath, reserving the right to withhold names, should they be called for. 
 We will offer a witness to test the question, whether the Committee will riceive his 
 testimony and excuse him from answering a call for names. 
 
 The Chairman. — That question was raised by the Counsel for the Memorialists at 
 the last sitting, and was settled by the Committee. 
 
 Mr. Dexter. — Then I understand the rule is to be enforced, that the witnesses shall 
 not be permitted to give evidence of the sale and destination, and use, unless they will 
 give the names of purchasers. 
 
 The Chairman. — That is not the decision. It was that the witnesses could not be 
 excused from giving the names, if required^on cross-examination. 
 
 Mr. Dexter. — 1 now propose that the witnesses be called to state that these sales 
 were made to taverners and retailers, and submit to the Committee whether this tes- 
 timony is not conclusive to establish the fact, without requiring the names. 
 
 Mr. Sprague, (Counsel for Remonstrants) — The Committee have decided this ques- 
 tion, as the gentleman must well know, and on broad principles, which no tribunal on 
 earth, that wishes to get truth, can depart from. They now offer to show the article was 
 sent to retailers and taverners, but how can we know that they are such, unless their 
 names are given? We know not what witnesses may state, unless we can require 
 a disclosure of all the facts, to have an opportunity to disprove them. The witnesses 
 may state that they are taverners and retailers, when they are not so. 
 
 Mr. Dexter. — I have but one remark to make on that intimation, and that is, I do not 
 believe that when the witnesses we call, stand up here and state the facts on their oath, 
 an individual in the community will doubt their testimony, except the opposite counsel. 
 
 The Chairman. — The Committee have no power to summon witnesses before them. 
 They have agreed upon the form of oath to be administered, and unless the witness will 
 take the oath and come under the rule, he cannot be examined. If any one of the 
 Committee wishes a reconsideration, the rule can be reconsidered. 
 
 Mr. Dexter. — That is not what is asked of the Committee. I ask for a direct decis- 
 ion from the Committee itself, whether the witness cannot be admitted to be examined, 
 he reserving his right to the limitation as to giving the numes of individuals. 
 
 The Chairman. — The Committee have decided that question, and it cannot be again 
 presented, but upon reconsideration. 
 
 Mr. Dexter. — 1 am sensible that any farther remarks from me would be useless. It is 
 then the determination to exclude the testimony. 
 
 Mr. Lincoln understood the rule to be to admit and not to exclude testimony. They 
 were not called on to make an absolute rule. If a witness was willing to testify, he 
 should tell the whole truth. 
 
 The Chairman called for the hearing of the Remonstrance of Jonathan Phillips and 
 others, and asked — Has the other side any further facte to offer? 
 
 Mr. Dexter. — I mean to be understood; and to bring the matter to an issue, I will of- 
 fer a witness, and advise him to take oath, and not give the names of individuals. 
 
 The Chairman. — If there are any witnesses, we are ready to hear them. 
 
 Mr. Moses Williams presented himself, and slated that he had taken the oath befoie 
 the rule laid down by the Committee, requiring the names of customers, had been adop- 
 ted. He had supposed that the Committee would be desirous of receiving such infor- 
 mation as might be properly communicated. He held in his hand an extract from his 
 books, which showed each item and date, and the individual to whom it went, taken off 
 by himself, and checked by his clerk to-day. He had sent it on orders of four persons, 
 and he was willing to state the occupation and every particular, nut the name. 
 
 Mr. Dexter. — I now ask if the Committee will permit the examination to be made, if 
 the witness reserves his right not to answer as to the names ? 
 
 Mr. Lincoln. — He is sworn i and he may proceed to testify. 
 
 Mr. Dexter. — Then we will proceed to examine him. 
 
 Mr. Upton, of Nantucket — It is the same thing over ag.-j.in. The Committee have 
 once decided, and this is trifling with the Committee. 
 
 Mr Sprague, (Counsel for Remonstrants.) — If a witness comes before a tribunal and 
 refuses to answer any question put, it is a contempt, and if the Committee let this wit- 
 ness go on, it is in contempt of them. 
 
 8
 
 58 
 
 The Chairman.— This is the third time" this matter has been brought up, and on three 
 several days, and the Committee have not reversed the first decision of the Chair. The 
 witness is sworn to tell the whole truth, and he must either answer all or none. 
 
 Mr. Dexter. — I still do not get the deliberate decision of the Committee, but only 
 that of the Chairman which preoccupied the ground. To get at that question, I will 
 offer a witness who has not been sworn. 
 
 The Chairman. — The question is for each witness to answer to his own conscience, 
 whether he will take the oath to tell the whole truth and keep back a part. He must 
 answer as he thinks proper. 
 
 Mr. Lincoln.— There is no question before the Committee. The question is for the 
 counsel and not for us. I would not say this is trespassing on our patience, but unless 
 they can bring witnesses who will conform to the rule, I see no use in their being pre- 
 sented at all. ° If the Counsel wishes to put a witness before us who will refuse to an- 
 swer, that is for him to decide. It is not now the question how the committee will vin- 
 dicate its honor, if he refuses to answer. « If a witness presents himself and takes the 
 whole oath, he must answer the whole questions. 
 
 Mr. Dexter. — I have now accomplished all I wished. 1 have presented this testimo- 
 ny in two forms, putting it distinctly in the power of the Committee to obtain it, if 
 they wish to be informed on the particular facts bearing upon the question before them. 
 1 am now given to understand, though indirectly, that if a witness does not answer 
 a question which he feels bound in honor not to answer, and which is not essential to 
 establish the fact, he will be held in contempt. As 1 do not choose to subject any wit- 
 ness to be sent to jail, should the Committee suppose they have that power, 1 must 
 here leave the evidence, regretting that this very important source of information should 
 thus be cut off. 
 
 [Mr. Hallett, then presented and read the Protest against this rule. 
 
 Tuesday, February 5th. 
 Nathan Crosby, Esq. opened the objections to the repeal of the Act, 
 on the part of the Remonstrance of Jonathan Philips and others, and occu- 
 pied that day's sitting. He closed his remarks on the 6th, and was follow- 
 ed by John A. Bolles, Esq., who also opened on the same side of the ques- 
 tion." Mr. Bolles spoke five hours, and finished on the 8th of February. [The 
 Committee have no full report of these speeches, and as a sketch of them 
 might do injustice to the parties, they prefer to leave their publication to 
 the friends of the Law, designing on their part to present their own side of 
 the question, and the evidence on both sides, fully and fairly, and not to pre- 
 judice the other side by attempting what may be considered a partial 
 representation.] 
 
 TESTIMONY FOR THE REMONSTRANCE. 
 
 February 9th. The Remonstrants offered their testimony, and began with 
 Joseph Kingsbury of Amesbury. He stated that he had resided in 
 Amesbury and Salisbury village fifteen years. When he first resided there, 
 every grocer retailed ardent spirits — almost every man in the place drank 
 it — and there was much drunkenness in the village. When afterwards 
 license were witheld, the grocers, with two or three exceptions, continued 
 the traffic as before. Prosecutions were then commenced — a number of 
 persons were convicted, and a slop was thus put to violations of the law. 
 At this time Temperance lectures were delivered, showing the immorality 
 of the trafic — and the retailers made a proposition to the Temperance society, 
 that if the society would take their ardent spirits off their hands, they would 
 purchase no further supply. This was done, and the effect had been most 
 beneficial — the consumption has been reduced at least seven eighths — and 
 drunkenness was seldom witnessed in that village. 
 
 Being asked how much was owing to moral suasion in his town ; he said 
 we lad a temperance lecture and the force of it wa so strong the dealers 
 came forward and said, if the temperance society would take the liquors off 
 their hands they would not s II, and we did so. [It did not appear what 
 the socie y did with, the liquor so purchased.] Should Parker, who kept 
 the tavern, gave up the sale voluntarily — witness does not know of any 
 place where it was now sold in Amesbury.
 
 59 
 
 [Two Merchants of Boston were present in the hall, who stated to some 
 of the Memorialists that they had sold spirits to go to Amesbury within a 
 few days, and had constant customers there. Testimony of this kind, had, 
 however, been excluded by the ruling of the Committee, unless names were 
 given to lead to prosecutions.] 
 
 Friday, February 10. 
 
 Rev. Mr. Perry of Bradford, E.-sex County, called for the Remon- 
 strants. For four years past, Licenses of Shops had been withheld in Es- 
 sex County, and Tavern Licenses had decreased. The general impression 
 of the temperate men was, that it had been beneficial. Some of the stores 
 had continued to sell after 1834, but for three years very little ardent spir- 
 its had been sold, as he supposed, unless covertly. Wines were sold as 
 usual. Comparing the four years past to the four preceeding, he should 
 think the sales of liquors one third less. He had been over the County as 
 a temperance agent, his parish having relinquished his services for that 
 purpose. He supposed there might be some places where it was now free- 
 ly sold, particularly the taverns. What he had said of Bradford he thought 
 might be generally true of the County, except some few towns. There was 
 a floating population, who if they could not get ardent spirits in one town, 
 would move to another. There had been no change in the use of spirits 
 since the law of 1838, to make it a subject of remark. So far as regarded 
 the poor, there had been no essential change in Bradford the past eight 
 years. 
 
 Cross-examined. Moral means had been used to a great extent. He 
 had preached to his congregation that it was immoral to sell or use it. Be- 
 ing asked if his parish had taken a deep interest in the moral cause of tem- 
 perance ! he did not think they had, which he qualified by saying, as much 
 as he wished. But admitted they paid his salary and supplied his pulpit to 
 allow him to act as a temperance agent. He had no means of knowing 
 whether it was sold in Bradford. He did not go into back places, or visit 
 taverns, and did not suppose that they wouid show him the places, if there 
 were any, it was sold in covertly. They sent into other places and got fif- 
 teen gallons at a time, if they wanted it. One person, Merrill, had been 
 prosecuted within two or three years. Before that, two-thirds of the prose- 
 cutions had been got up by the drinkers. The temperance society had ne- 
 ver prosecuted. He had always dissuaded them from it. On being press- 
 ed, he says the society rely more on moral means than law to advance the 
 temperance reform. Thinks that a strong minority might present obstacles 
 to enforcing the law, but he wanted law to aid the temperance cause. It 
 was no security for one town, if it was sold in another. 
 
 Samuel Wells, of Northampton, is clerk of the Court. The County 
 Commissioners of Hampshire had withheld licenses from shops for three 
 years. They licensed taverns. Should think the consumption had di- 
 minished. In 1827,-35,000 gallons were sold aunually in the County. In 
 1831 it was reduced to 5000 gallons, and had probably decreased since. — 
 He could not state the amount. It had been gradually decreasing. The 
 tavern licenses in the County had diminished 100 in twenty years. Thinks 
 there were about 40 retail shops when licenses were withheld. The crim- 
 inal prosecutions before him were from 25 to 40 a year, and nine-tenths 
 were owing to intemperance. The decrease of consumption, within six 
 vears. he should think was one third. Six distilleries had been discontin 
 ued, and he did not know of but one m the County. 
 
 Cross-Examim d. How much of what you have stated as to the amount 
 sold or consumed, do you personally know to be true ? 
 
 On my own personal knowledge?
 
 60 
 
 Yes. Not what you guess, but what you know. State on your oath. 
 
 I say on my oath I know nothing about it. 
 
 Did'you not undertake to give, on your oath, the precise amount of sales 
 in 1827 and in 1831 ? 
 
 That was from others. 1 was so informed. 
 
 By whom ? 
 
 By an agent of the temperance society, who went through the County, 
 and collected the facts. 
 
 Do you give that as evidence ? 
 
 I stated what I supposed was the fact. 
 
 Being further questioned, he says that the distilleries were discontinued 
 voluntarily. Two in Graiiby were grain distilleries, the others were cider 
 stills. Great moral efforts had been used— preaching, pledges, tracts, lec- 
 turers to go through the County, &c. There were seven or eight licensed 
 taverns in Northampton. Drunkenness had diminished. He would not 
 say that forty inhabitants of Northampton were tried for crimes annually. 
 Being asked if it was possible that in the moral community of North- 
 ampton, 36 of its inhabitants annually committed crimes Irom drunken- 
 ness, witness admits that some are foreigners, perhaps ten or twelve. 
 Being asked if these, cases had increased or diminished the last year, he 
 says that there were forty the last year, which is the highest number he 
 remembers. Before the recent law, there was no excitement against the 
 temoerance movements. There had been a great deal of excitement under 
 the law, among the sellers and drinkers. 
 
 Were no others opposed to the law ? No, but some thought it impolitic. 
 
 Were those who thought the law impolitic in favor, of it? No. 
 
 Then were they not opposed to it? Yes, but it was on account of its in- 
 juring the party. 
 
 Which party ? Both parties. 
 
 Did these persons think it impolitic because it would injure both parties? 
 Witness did not answer, and the inquiry was dropped. 
 
 By Mr. Crosby. Did you ever know the distillers and dealers to ex- 
 ert a moral influence in dissuading their customers f.om drinking? No. 
 
 By Mr. Hallctl. Did you ever know a temperance agent to dissuade 
 temperance societies from employing and paying him in his occupation ? 
 Witness. If it is a proper question I will answer it. 
 
 The Chairman. The pertinency of the question is not perceived. 
 
 Mr. Hallett. I merely asked it to answer the question put on the other 
 side. It seems equally pertinent. 
 
 Mr. Crosby. I asked the question because the gentlemen distillers and 
 dealers in this memorial, claim to be the friends of temperance. 
 
 Mr- Hallett. And I asked the question because the gentlemen tempe- 
 rance agents in this remonstance claim to be[purely disinterested. 
 
 Col. Minot Thayer of Braintree, gave an interre^ting statement of the 
 progress of temperance in that town, which he attributed partly to moral 
 influence, and partly to the law. lie could only state what had been told 
 to him. Has not seen a person intoxicated in the town for two years. 
 Formerly, a farmer gave his workmen a gallon a day. Now gave none. 
 They have but three male paupers in the town. Related a melancholy ac- 
 cident, some years ago, of an outrage upon a dwelling, and its sick owner 
 being killed by a stone, thrown by a drunken party of young men. The 
 town of Braintree was a highly moral town, and he believed was so when 
 they sold rum, but had improved. He employed two laborers, formerly in- 
 temperate, who begged him to support the law. He did not know that the 
 Weymouth packet sold rum there last winter. In answer to a question 
 from Mr. Buckingham, he said they sold wine there, but he did not cal
 
 61 
 
 wine spirits. If, said he, I came into your store and asked for spirits you 
 would not give me wine. Mr. B. replied that he would get neither in his 
 store, for he kept none. 
 
 Col. T. believed that the people in his town were united in support of 
 the law. Being asked if there was not some opposition to it, he thought 
 there was, but none of any consequence, though it might have something 
 to do with the election. Before the law, temperance was going on well 
 there, and he did not think it less so since. Being asked what his major- 
 ity was in the town, he said it was so large he could not remember. 
 
 [It was afterwards understood that the Col's, majority was only four ! 
 against an opponent o f the Law.] 
 
 Sherman Lei.and, Judge of Probate, of Roxbury, Norfolk County, was 
 called, and went iutu an argument and narrative. 
 
 He described the process of subduing the dealers in that place, com- 
 menced about two years ago. The Temperance Society appointed a com- 
 mittee to prosecute. They warned the dealers, who, nevertheless, continued 
 to sell, then they were prosecuted. There was great excitement. The 
 dealers agreed to stop, but began again, and were again prosecuted. Ex- 
 citement ran high, and a town meeting was called. The state of feeling 
 was such, the agents of the Society thought it prudent to suspend opera- 
 tions. They let them go on, till the fines amounted to four or five hundred 
 dollars in each case, and then took them into Court. Some plead guilty, 
 and some were convicted. The dealers agreed to compromise, and were 
 let off on paying $100 each, and the remainder of the fines was kept hang- 
 ing over them for their good behavior. Most ot the principal dealers in 
 large and respectable taverns were broken up, and by this process, in eigh- 
 teen months, the principal dealers wete entirely subdued. When the elec- 
 tions of County Commissioners came on, the prosecution relaxed, and the 
 trade began again. There was always an increase of drinking in the ex<- 
 citement of an election, when they Imped to bring ahout a change. The 
 Commissioners opposed to licensing had a majority of 62 in Roxbury. Six 
 prosecutions were then commenced, and the trade appears now to be essen- 
 tially broken up. Should think very little was sold in the town now. Some 
 moral means were used; but the law was put in force stifly, and order and 
 quiet were restored. He did not see as many red faces congregated to.- 
 gether, as he used to. However under the name of wine, they still get 
 spirits. One or two grocers also sell liquors. It was not possible to pro- 
 hibit spirits where wine is allowed to be sold. The way to convict the deal- 
 ers was to take them before they could see their customers, and they would 
 generally plead guilty. If you bring them up before Court, nine out often 
 of their customers would swear to what was not true. The great difficulty 
 of enforcing the law was the timidity of its fiiends. They wete afraid to 
 prosecute. He had no doubt that rum was sold in some of the towns, and 
 that what a witness ^Mr. Baker) had said of Milton was true. The deal- 
 ers there had not been subdued, especially at the Railway House. You 
 could not subdue them with $20 fines but must get an accumulation of 
 fines. It had increased the costs against the Commonwealth, but it was 
 the best course. He supposed he knew about how it stood in all the towns 
 in Norfolk County. Roxbury he had described. — Brookline.no sale. Dor- 
 chester, some in the South Parish. Milton, pretty tree. Quincy, a free 
 trade. Braintree and Weymouth, none. Cohasset, a little, Randolph, a 
 little. Canton, too much. Foxborough, an example for any town. Wren- 
 tham, Walpole, and Franklin, none. Dedham, a little. Bellingham, con- 
 siderable. When you produce an excitement by attempting to enforce a 
 law, they will drink more, until they are subdued. You may carry temper- 
 ance to a certain point, and then you want the law. As to Boston, he
 
 62 
 
 thouo-ht it would be very difficult to enforce the law there. It. would require 
 very vigorous measures. If the friends of the law would combine, in every 
 Ward, and prosecute every offender, as they had done in Norfolk, till the 
 fines run up to a large sum, he thought they might be subdued in time. If 
 it was left to the city authorities, it would never be done. 
 
 Cross examined. — He was employed by the Temperance Society in these 
 prosecutions, and paid for it. He thought it best to have the relation of 
 of counsel to clients in looking up the prosecutions, The prooceedings he 
 had related took place under the old law. — The new law had not been ap- 
 plied. There was some opposition to it, and they could not elect their re- 
 presentatives. Had to compromise with three for the law and two against 
 it. This was in consequence of the administration party, on the third day 
 bringing up temperance candidates. He corrected himself, and did not 
 mean to say that no temperance men were opposed to the law. There was 
 perhaps more opposition than there had been before this law, but he thought 
 it could be subdued. As to how far religion could be carried, without law, 
 he could not undertake to say. He would not advise to bring in law to en- 
 force it beyond a certain point. What the effect would be on the whole 
 Commonwealth, if the same excitement was kept up (or eighteen months, 
 throughout the State as in Roxbury, to subdue the dealers, others must judge, 
 but it would not operate in the small towns, where public sentiment was 
 well settled. Undoubtedly the prosecutions, if the parties stood trial, would 
 lead to a gieat deal of perjury. He should not rely on the customersif he 
 could help it. Being asked what opinion he had recently expressed con- 
 cerning the new law, he said, he doubted if it was not premature, and he 
 would modify it, if left to him, so as to regulate the sale of a gallon and 
 upwards, and leave the Counties to decide as to a less quantity He had 
 seen the Rhode Island law just passed, and approved it, and thought our 
 law would be more efficacious if so modified. In fact, said he, you never 
 can make the people tranquil under any law unless you include wine in the 
 prohibition. 
 
 Tuesday, February 12. 
 
 DR. ABEL L. PIERSON of Salem, was sworn, to show the physical 
 evils of intemperance. [The Memorialists had in no way called this in 
 question, but the Committee deemed it necessary to have it proved.] 
 
 Dr. Pierson stated that he had been in medical practice twenty-two years. 
 In answer to the inquiry what is (he effect of alcohol on the humansystem 1 
 he replied — That he had practiced among the poor, when young, and tlicy 
 generally use ardent spirits. A great deal of intoxicating liquor is drank 
 which contains other properties than alcohol. Distillation in copper, causes 
 copper precipitate. He believed that common rum and gin contained other 
 qualities besides alcohol. There was, perhaps, as little of deleterious qunl- 
 ities in New-England rum, as in any spirit. The immediate effect of alco- 
 hol on the stomach was inflamation. If its effect be very great, it would 
 extinguish life at a blow. It operates on the blood like electricity. Ascends 
 to the brain and quickens the motion of the heart, making a man " live too 
 fast," as the saying is. It is absorbed by the veins. The heart, under its 
 influences, beais 1 10,000 times a day. It should never bent but 100,000 
 times. Apoplexy is caused by the heart driving the blood into tire brain, 
 and producing congestion. 
 
 The remote effects are, that the stomach becomes habituated to the stim- 
 ulus, and requires it. Induration is produced, and finally ulceration. A 
 great qua iti y can be borne, and a person may use it to excess, and retain 
 tolerable health. It i§ a poiaoji, but a very slow poison, and may be used 
 in proper quantities with impunity. Men may use poison without serious 
 injury. Dropsy is a common case in drunkards.
 
 63 
 
 As to the effect on the senses. Insanity and intemperance ad on each 
 other. Intemperance affects the hearing. Perhaps yon (to Mr. Crosby) 
 may not have experienced the effect, but it produces, a sensation, like water 
 wheels turning. It affects the sight, so that a man may see double. Has 
 a tendency to prevent cure of diseases, and to aggravate them. The only 
 way to guard men against it, is to protect them from themselves. When a 
 man, is found frozen to death, there is always an empty bottle by his side. 
 Have seen many diseases that he traced to the use of alcohol. 
 
 As to its medicinal qualities — To a healthy man he should say, avoid all 
 intoxicating drinks; but if out of health, it. may be useful as a medicine. 
 In this country, the article was much less adulterated than in Europe. Here 
 it was honest alcohol. In Europe, it is drugged to increase stimulus. Reads 
 from the Domestic Chemist as to dru^s in English ardenis. It was a mis- 
 take that ardent stimulus aided labor, or relieved fatigue. It cau e,, s a man 
 to do more for a brief period, but at the expense of his constitution. Al- 
 cohol was beneficial as medicine, but a person in health should avoid all in- 
 toxicating liquors. 
 
 Cross-examined by Mr. Hallett. Were not the physical effects of luxury 
 and gluttony in eatinghighly deleterious? Ans. Unquestionably they were, 
 and often led to aggravated diseases. 
 
 Ques. Can men be morally persuaded not to eat to excess ? Ans. Not 
 in all cases. 
 
 Qucs. Would you recommend a law that should enforce such a diet as 
 physicians would prescribe to be safe and healthy ? Ans. Such a law would 
 be perfectly proper in many cases. It a shell fish should be fLund in great 
 abundance on ourshores, of a delicious flavor, but which produced a poison- 
 ous effect on the system, prostrating the body and mind, and producing dis- 
 ease, misery and death — and the people were so infatuated that they would 
 cot be persuaded to forego partaking of this poisonous food, he thought it 
 would not only be proper, but the duty of the Legislature, to pass penal acts 
 to restrain persons from destroying in this way, themselves and their fam- 
 ilies. 
 
 Ques. You think then, the people are not to be trusted with the regula- 
 tion of their own appetite for food as well as for drink ; but would you in 
 the case supposed, have a law that the rich might use fifteen bushels of the 
 shell fish, but the poor not have a less quantity, if they could buy it ? Ans. 
 He would prohibit it altogether. Whatever was clearly proved to be inju- 
 rious, he would prohibit by legislation ! 
 
 Ques. Would it be physically possible for a man to live till seventy or 
 eighty, in the habitual, constant use of such a poison as you describe =ilco- 
 hol to be? Ans* I have stated that it is a slow poison, and that a man 
 might accustom himself to the use of positive poison. 
 
 Ques. But Doctor, how is it that the medical faculty never discovered 
 the physical effects you have described, until recently? Ans. He could as- 
 sign no reason, if they had not, unless it was that modern medical science 
 had progressed farther. 
 
 Ques. In dissections, would not the indications of poison in the stomach 
 appear ih the subject who died from poison. Ans. Undoubtedly. The 
 presence of such an agent would be indicated. 
 
 Ques. Has not medical science for the last thirty years, been competent 
 to detect poison in the stomach 1 Ans. It has. 
 
 Ques. Will you then, explain why the most celebrated anatomical pro- 
 fessors never detected the poison of ardent spirits in the stomach, till with- 
 in a dozen years ? Ans. He could not, if such were the fact, but he pre- 
 sumed it had been detected.
 
 64 
 
 Ques. Can you nime any case in which the medical faculty, previous 
 to 1827, discovered in their dissections the evidences of poison you have 
 described, arising from alcohol? Alts. He could not; their attention was 
 not called to it. 
 
 Ques. Then does not the preconceived desire to find these iesults, aid 
 in their discovery? Ana. He was not aware that it did, but he presumed 
 that anatomists had made the discovery bng ago, though it had not been 
 minutely developed. 
 
 Ques, Was not, in fact, Dr. Rush of Philadelphia, the first physician 
 who represented the moderate, habitual use of ardent spirits as unnecessary 
 and injurious ? Ans. No; he considered Hypocrates as the first discov- 
 erer of the f.ict. It was as old as medicine. 
 
 Ques. Can \o;i refer to any authority to establish that assertion. Ans. 
 lie was not prepared to, pn the instant. 
 
 Ques, Were you acquainted with Dr. Hollyoke, of Salem ? Ans. I was, 
 and well knew his habits. 
 
 Ques. How long did he live, and did he not habitually use ardent spirits 
 temperately ? Ans. He used ardent spirits in small quantities habitually, 
 a table spoonfull at a time, diluted with water, and sometimes with cider. 
 He also used tobacco habitually. He lived to be over 100 years, but let it 
 be remembered that Dr. Hollyoke did not die of old age! On a post mor- 
 tem examination it appeared that the heart was in a healthy state, and 
 might; from all which its appearance indicated, have beat another hundred 
 years. But the immediate cause of his death was an affection, perhaps the 
 duly one, which might have been induced by a moderate, but habitual use 
 of ardent spirits — a cancer in his stomach. He then described the schir- 
 rus stomach, which he said was attributable to the effects of alcohol*. 
 
 Ques. Are not the same indications found in the stomach, as the effects 
 of tight lacing'' Ans. He did not consider lacing as decidedly injurious 
 to the system. 
 
 Ques. Are not tea and coffee injurious to the system ? Witness believed 
 they were, and objected to their use as a beverage. 
 
 Ihj Mr. Stowell, one of the committee. How much longer might Dr. 
 Hollyoke have lived, if he had not used ardent spirits? Ans. Thatisadir- 
 ficult question to answer. 
 
 Dr. Pierson thought th:it alcohol, although useful as a medicine, in some 
 cases — could be excluded from the materia medica, if the good of the com- 
 munity required it. 
 
 Dr. Walter Changing of Boston, called to the same point. He said 
 that Dr. Pierson had left very little for him to say. Dr. C. then made an 
 earnest address to the Committee in behalf of temperance. Related the 
 cases of four distillers: one of whom never drank any, and described the 
 effects of alcohol upon the stomach.. Read extracts from Sir John Ross' 
 Journal of his voyage to the north pole, stating that he brought home all 
 the rum he carried, having persuaded the sailors that they could stand the 
 cold best without its use. They abandoned its use voluntarily, without 
 compulsion. 
 
 On the cross examination Dr. C. was asked whether, on the whole, the 
 habitual use of ardent spirits shortened life in a community? He believed 
 it did. 
 
 Question by Mr. Hallett. What was the comparative use of alcohol 
 
 *JYolc. Dr. Bowditch died of the same disease. Is his memory to be aspersed by 
 intemperate zeal ? His biographer, Rev. Mr. Young, says : " The disease of which Dr. 
 JJowditch died, was found by a post morten examination to be a schirrus in the stomach 
 a disease of the same type with that whichcaused the death of Napoleon."
 
 65 
 
 now, and during the period of the Revolution? He could not tell precise- 
 ly, but presumed it was greater in the former period than now. 
 
 Question by the same. What was the comparative state of longevity 
 then and now? He could not tell. 
 
 Q. Was not the average life of man in the former period longer than 
 it is now 1 
 
 Ans. Perhaps it might have been. He had no data to make a com- 
 parison. 
 
 Q. But do people generally live to as great an age now as the gener- 
 ations of men, sixty or seventy years ago ? 
 
 Ans. Others could judge as well as he could of that. 
 
 Mr. Hallelt then gave a list of the ages of the signers of the Declaration 
 of Independence, and inquired if an equal long vity could be calculated 
 on the present race of men ? The Dr. was not prepared to answer the 
 question fuliy, but thought probably not. Could not say positively. He 
 thought the men of the Revolution had something more important to think 
 of than ardent spirits. 
 
 Q,. Was not the ages of the surviving soldiers of the Revolution, the 
 pensioners, much greater, relatively, than could be calculated on the lives 
 of men of the present day, under the temperance reform? 
 
 Ans. Could not answer positively. He was aware that the Revolutionary 
 pensioners had generally survived to a great age, but he did not attribute it 
 to the use of ardent spirits. 
 
 Mr. H. Neither do I. That is not the inquiry, but how you can philo- 
 sophically reconcile their great age, and known habits of constantly drink- 
 ing spirits, with the theory that the habitual use of spirits shortens life, and 
 total abstinence lengthens it? 
 
 Dr. C, was not aware that they drank spirits to excess. 
 
 Mr. H. That is not to the point Doctor. We are on the effects of 
 habitual use upon life, compared with total abstinence. Is it not notorious 
 that the men of the Revolution used ardents constantly in the army, and 
 regarded them as a necessary of life? 
 
 Dr. C. It might have been so, but he was not aware of it, and did not 
 fully comprehend the object of the inquiry. 
 
 Mr. H. Did you never read in Sparks's Lives, that in a severe battle 
 General Putnam, who was almost perforated with bullets, complained most 
 of all, that a shot had passed through his canteen and spilt all his rum, 
 which he regretted more than the loss of blood ? 
 
 Dr. C. That fact had never fallen under his observation. He was desir- 
 ous of fully answering every enquiry which he could comprehend. 
 
 Mr. H. The object of the inquiry then is this — to arrive at the fact 
 whether luxury, idleness and effeminacy in the present race of men have 
 not tended to shorten life much more than the use of ardent spirits did in 
 the men of the Revolution ? 
 
 Dr. C. The causes named undoubtedly had that tendency, but he could 
 make no comparison between the two supposed cases. 
 
 Mr. H. But if you justify this law, because intemperance affects life 
 and health, would you not then restrain luxury and high living, by force 
 laws, as well as the sale and use of ardent spirits? 
 
 Dr. C. That was a matter for the wisdom of the Legislature. 
 
 Mr. H. Is not the practice of tight lacing and slight dressing among 
 females, a crreat source of consumption and other diseases, and the shorten- 
 ing of life? 
 
 Dr. C, did not perceive the bearing of the question. Undoubtedly such 
 was the fact, however. 
 
 Mr, H. Then why not restrain these pra&tices in females, by law, in 
 
 9
 
 66 
 
 order to save them from themselves, as Dr. Peirson said must be done with 
 men, in regard to alcohol ? 
 
 Dr. Channing. Gentlemen — I have no wish to press this law. I do 
 not wive any opinion upon it. I have only spoken of the evils of intemper- 
 ance, and these I know to be so great it is impossible to exagerate them. 
 You sir, (to Mr. H.,) know them, and have often described them better 
 than I can. 
 
 Mr. H. We do not differ materially, Dr. Channing, as to the evil, but 
 the question now is the remedy. The effect of this lata, not the effects of 
 alcohol. 
 
 Mr. H. Does the habitual use of alcohol create a powerful thirst for the 
 liquid that contains it? 
 
 Dr. C Undoubtedly. 
 
 Mr. H. Is it stronger than the natural thirst ? 
 
 Dr. C. Unquestionably it is. 
 
 Mr. H. Which is the strongest appetite in man, hunger or thirst — and 
 which is the most excruciating and will soonest terminate life? 
 
 Dr. C. Thirst, undoubtedly. 
 
 Mr. H. Then if hunger will break through a stone wall, what will thirst 
 for ardent spirits do ? 
 
 Dr. C. Of that you must judge. 
 
 Mr. H. Which would most promote thirst, a vegetable or a meat diet ? 
 
 Dr. C. A meat diet. 
 
 Mr. H. Then would it not promote temperance to enjoin by law a veg- 
 etable diet under the Graham reform, in order to diminish thirst ? 
 
 Dr\ C. It is not my province to decide. 
 
 Mr. H. Is alcohol in wine the same as alcohol in ardent spirits ? 
 
 Dr. C. That is a question not fully settled. 
 
 Mr. H. From your intercourse with those who are sometimes called the 
 higher classes, what effect do you find this law has in restraining their ap- 
 petites ? 
 
 Ans. It was impossible for him to say. Some thought it would have a 
 good effect. He gave no opinion as to the law ? 
 
 Mr. H. Is there not a disease in medicine known as mental extrava- 
 gance ; the effects of strong representations upon the imagination, called, 
 in the medical books, morbid afflatus ? 
 
 Dr. C. Such diseases were laid down in medical books. He did not 
 perceive the bearing. 
 
 Mr. H. May not this mental disease in temperance societies, be the 
 origin of this very law, rather than a sober desire to do good ? 
 
 The Chairman did not perceive that this question required answer. 
 
 Mr. H. Doctor, will you please state, as a medical man, what would 
 be the tendency on the imagination, in contemplating a single subject as 
 the source of all evil, and collecting and dwelling on extravagant pictures 
 of those evils. 
 
 Dr. C. It was not a subject on which he had reflected much. He was 
 not now prepared to give an opinion, if it were required of him. 
 
 Mr. H. Is it not laid down in your books that the effect would be to 
 produce a monomania ; that is a false reasoning on one subject which may 
 completely overcome the operation of the judgment in that particular, 
 though sound in others ? 
 
 Dr. C. Had not seen it so stated. It might be so. 
 
 Mr. H. Are not Doctors Irvin, Cutter, and Good, acknowledged 
 medical authorities ? 
 
 Dr. C. Unquestionably.
 
 CI 
 
 Mr. H. They so state the case very distinctly. My object in the in- 
 quiry is to apply it to the monomania that has got up this law. Mr. H. 
 apologized to Dr. C. for detaining him so long, and thanked him for his 
 candor and patience in the examination, and the Committee adjourned. 
 
 Wednesday, Feb. 13. 
 Dr. Ebenezer Aldjsn of Randolph, was called to the same point. 
 He stated that he was present at the examination of Drs. Pier- 
 son and Channing, yesterday afternoon, and concurred in the general 
 views expressed by those gentlemen in relation to the effects of alcohol 
 on the system. He said there appeared to be an hereditary predispo- 
 sition in some individuals to intemperance — and that the children of in- 
 temperate parents, whether from this cause or the force of example, fre- 
 quently became intemperate themselves. It was often the case that if a 
 person should nearly succeed in overcoming a habit of intemperance, the 
 sight of a dram-shop and exhibition of the decanters, would cause a re- 
 newal of the habit. He believed that the use of ardent spirits as a 
 drink, was always pernicious — and had been the cause of much loss of 
 life throughout the country. It was rightly called a poison because it in- 
 toxicates. It is a diflusable stimulus, and is never necessary in health. 
 
 He said that in an address delivered in 1789 or 1790, by Dr. Benjamin 
 Rush, before a meeting of clergymen, he said that ministers should 
 preach not against the abuse, but against the use of ardent spirit — it 
 being never necessary to health — and in cases of illness, it had better be 
 applied externally than internally. 
 
 Dr. A. stated that licenses had been withheld in Randolph about four 
 years — and since that time the diminution in the consumption of ardent 
 spirit was very great indeed in his view. There were, previous to that 
 time, eleven licensed retailers and three taverns — the population being 
 3300. Now there is only one tavern. There were formerly many cases 
 of delirium tremens — but now that disease is seldom met with there. The 
 amount of drunkenness is much less than it was a few years ago. He 
 thought that restriction was an important means in bringing about this 
 result. There wa&a great visible change in the external appearance of 
 the place. Rum was still used in the town, but chiefly by foreigners, 
 and in comparatively small quantities. We have a class of persons who 
 use it and will use it secretly. But it is difficult to conceal it. Rum will 
 out, although those who drink it will lie ! 
 
 Cross-examined, by Mr. H. What are your means of knowing the di- 
 minution of the use of spirits in Randolph ? Ans. From his intercourse 
 with the people and visiting his patients. 
 
 Ques. Is not the disuse in families the chief cause of the diminution ? 
 Ans. It probably was. 
 
 Ques. Is not this the result of moral influence and not of law. A?is. 
 It was so far as the habits of families were concerned, but the law would 
 be an assistance to the moral cause. 
 
 Ques. Are intemperance and pauperism cause and affect? Ans. 
 They are very closely allied. 
 
 Ques. If there is a diminution in the use of ardent spirits in a town, 
 will pauperism diminish proportionably ? Ans. Should think it cer- 
 tainly would. 
 
 Ques. How is it in Randolph 1 Ans. Believes that pauperism has 
 very much diminished there since licenses were withheld. Has no doubt 
 of it. 
 
 Ques. Have you as good means of knowing the state of pauperism 
 there, as you have of knowing that the use of spirits has diminished? 
 Ans. Believes he has.
 
 63 
 
 Ques. Should it turn out that pauperism has increased in Randolph, 
 how would it affect your theory ? Ans. Such a result is not possible. 
 
 Ques. On which would you place most reliance, the sworn returns of 
 the Overseers of the Poor, or your own opinion ? Ans. Undoubtedly 
 the former. 
 
 Mr. Hallett then produced the following official returns of paupers in 
 
 Randolph, 
 
 Year. 
 
 1835 
 1836 
 1837 
 
 1838 
 
 Paupers. 
 
 24 
 
 27 
 65 
 92 
 
 Expense of Poor. 
 
 $1032 
 
 1354 
 
 1750 
 
 1833 
 
 Intemperates. 
 
 4 
 o 
 
 33 
 
 61 
 
 Ques. Do these facts from official returns, support your theory Dr. ? 
 Witness said he could not account for them if correct. He must say 
 he was puzzled at such a result, if fairly stated. 
 
 Mr. H. You have your own Overseers' words for it. It may serve to 
 show that you have been too confident in your own opinions of the mat- 
 ter. 
 
 T-he opposite counsel complained that .the witness was unfairly pressed, 
 and the examination closed. 
 
 Thomas Bradley, of Tisbury, on Martha's Vineyard, a member of 
 the House, sworn. Thinks the withholding licenses in Dukes County 
 has diminished the use of ardent spirits. In 1830, there were 3000 gal- 
 lons of ardent spirits used annually in this town. Thinks now there is 
 not over 300. The pauperism has remained about the same since 1831, 
 when licensing was stopped. Being cross questioned as to lhe facilities 
 of getting it to the Island, says it can easily be brought there in vessels 
 and boats, or got from those that stop in the harbors, but the reason it is 
 not used, the people do not want it as they used to. Is in favor of the 
 law, but does not think it will make any difference there. 
 
 Being asked if there are no sales there now, and whether it is not ob- 
 tained by those who want it ; says they have one place for the old topers, 
 where they can get it. 
 
 Ques. Then you think it necessary to have a safety valve kept open ] 
 Ans. I do. 
 
 Wilkes Wood of Middleboro.ugh, Plymouth County, Judge of Pro- 
 bate. No persons are licensed in Plymouth County. As to the compar- 
 ative use since the suppression of licenses he cannot tell. Habits have 
 changed. There is not half as much consumed now as formerly. Tav- 
 ern keepers frequently violate the law. Thinks there is less intoxication 
 than formerly. There are in our village individuals who think it no dis- 
 grace to get drunk. 
 
 Cross-examined. Are ardent spirits less used in private families than 
 formerly ? Yes, generally discontinued. Q. Is that the effect of law 
 or moral influence 1 Doubtless the latter. 
 
 Q. t Is not the discontinuance of this practice the great cause of the 
 diminution in use 1 Probably it is. 
 
 Questions by Mr. Hallett. Is there any law to prevent using spirits or 
 wines at public dinners? Ans. I never heard of any. 
 
 Ques. You say that some people in your town, consider it no dis- 
 grace to get drunk. Do you not know that the last 4th of July 400 per- 
 sons held a political celebration in Middleborough, and dined without 
 wines or ardents 1 Ans. I understood so, and have no doubt of it, but 
 was not present. 
 
 Ques. Do you know who delivered the oration on that occasion 1 
 Ans. I understand you did.
 
 69 
 
 Ques. Do you attribute that to moral influence or to this law ? Ans. 
 You must judge for yourself. 
 
 Ques. Does it not show the extent of voluntary temperance in your 
 town? Ans. I think it does. 
 
 Being asked, by the remonstrants, what had been the effect upon pau- 
 perism in his town, witness says — 
 
 Formerly there were from 50 to GO paupers. Now the number is from 
 20 to 30. Within 12 years the number has diminished about one half. 
 Thinks there were formerly double the number of paupers from intem- 
 perance that there are now. 
 
 Mr. Hallttt. What has been the result as to pauperism since this law 
 took effect ? Ans. Cannot tell, should suppose pauperism must have 
 diminished. 
 
 Mr. II. Judge Wood, do you speak from personal knowledge or from 
 
 conjecture ? 
 
 Ans. I have no positive knowledge, but presume it is so from my gen- 
 eral understanding of the case. 
 
 Mr. H. You say there was more intemperate pauperism formerly 
 than now. But here are the statistics, sworn to by the Overseers of the 
 Poor of Middleborough. Mr. H. then read the following figures from 
 the official pauper returns. 
 
 Middleborough in 1635 had 52 paupers, of whom 11 were intemperates. 
 In 1836, 45 paupers and 8 intemperates. In 1837, 49 paupers and 17 
 intemperates. In 183S 50 paupers and eighteen intemperates ! The 
 expenses of supporting the poor were in^l835, 81078. In 183G, 81071. 
 In 1639, 81251. In 1838, 81300. Showing an increase of paupers, in- 
 temperates, and expenses under the prohibitory law since 1834. 
 
 Josiaii Bacon, of Sandwich, a member of the House, was sworn 
 and testified. It was six years since licenses had been granted in Sand- 
 w ich. Withholding licenses had been beneficial. No spirits were used 
 there now but by those who are beyond moral means. Does not know of 
 any spirits being sold there now. None was sold openly. There were 
 two taverns. Did not visit them and did not know if they sold. 
 
 On cross examination, says — there has been a decided effort to ex- 
 clude ardent spirits from Sandwich. 
 
 Ques. Had it succeeded, was none brought there last year ? Ans. 
 There were two importations in the Spring and Fall, 25 barrels in the 
 Spring and 41 in the Fall. 
 
 Ques. Was there any law to prevent sending rum to Sandwich in 
 barrels? Ans. "Not as he knew of. 
 
 Ques. Then what do you rely upon to prevent the use of the article, 
 if you cannot stop its introduction ? Pause. 
 
 Ques. Must you not rely on moral influences '? Ans. Yes. But the 
 dealers in Boston would trust men with rum when they would trust them 
 witli nothing else. Witness saw several barrels of the ruin brought from 
 Boston, in a store in Sandwich, and asked the man why he did not buy 
 flour, Sec. His answer was that he could not get these articles on credit. 
 He said they would trust him for rum when they would for nothing else. 
 
 Mr. H. Does not that fact prove that it is easier to get rum to sell 
 than any thing else, and yet you expect to stop it by law ? Ans. It 
 might be so. 
 
 Mr. H. You say that no spirits are used there now, but by those be- 
 yond moral means, and yet Gti barrels, which is 2640 gallons, were sent 
 there last year, as you know ? What proportion would that give to your 
 inhabitants ? Witness had not made any estimate. 
 
 Mr. H. Would it not not be over half a gallon to every man, woman,
 
 70 
 
 and child in your town 1 Arts. It would, compared to the population.* 
 
 Mr. H. How then, has withholding licenses helped } r ou 1 Ans. I 
 consider the law auxiliary to moral influences. 
 
 Mr. H. Do you mean to say that all your fellow citizens who used 
 that rum are outcasts beyond moral influences 1 Ans. I did not mean 
 to be so understood. 
 
 Mr. H. You said so. 
 
 Mr. H. Would you be in favor of this law if it permits wine to be 
 retailed by every body 1 Ans. I should not. The sale of wine would 
 be very injurious if the new law does not prohibit it. 
 
 Mr. H. What is the effect in your town, upon pauperism compared 
 wilh former years ? Ans. Do not think the expense of paupers has 
 been diminished in three years. In Barnstable County the proportion 
 of paupers is to the inhabitants as 1 to 101. Plymouth, 1 to 73. Suf- 
 folk 1 to 25. Essex, 1 to 38. 
 
 Mr. II. Have you gained any thing in pauperism, in Sandwich, by 
 force laws ? Ans. Have no means of stating the facts. 
 
 Mr. II. then showed the statistics of Sandwich, as follows. In 1835, 
 18 paupers, 3 intemperates. In 1836,22 paupers, 5 intemperates. In 1837, 
 28 paupers, intemperate. In 1838, 48 paupers, seventeen intemper- 
 ates. 
 
 Mr, II. I will ask you one question Mr. Bacon, to prove that ardent 
 spirits are not necessary to sustain labor, which the other side have not 
 shown. You are an agent in the Glass House, at Sandwich. Which 
 workmen best stand the heat of the furnaces, those who drink spirits or 
 water ? Ans. He had taken some pains to ascertain that fact, and there 
 was no question that a glass blower could do much more work, and stand 
 it longer on water than any other drink. 
 
 Mr. Spofford of Beverly sworn. 
 
 What has been the effect of withholding licenses in Beverly. Very 
 great. 
 
 How many places were there where ardent spirits were sold. 
 
 Does not know exactly, twenty or thirty. 
 
 Has the consumption of ardent spirits diminished in Beverly 1 Yes, 
 very materially. 
 
 Has pauperism diminished within the lastyear? 
 
 It has increased. Many paupers have been thrown upon the town 
 from other places. 
 
 During the last year, has the use of ardent spirits increased or dimin- 
 ished 1 
 
 Diminished. During the last four years there were nine commitments 
 to the alms-house. During the previous four years there were twenty. 
 
 Mr. Clapp of Dorchester, sworn. 
 
 Are paupers in Dorchester supplied with ardent spirits 1 
 
 No. They formerly were. 
 
 How many licenses were formerly granted in the town 1 
 
 Believes seven or eight. 
 
 What has been the increase or diminution of pauperism in the town 
 within the last few years 1 
 
 Believes there is little, if any, variation. Thinks there are two or 
 three less paupers than there were a few years since. 
 
 What proportion of the paupers become so by intemperance 1 
 
 Two thirds to three quarters. Till the year 1836 rum was bought by 
 the hogshead for the use of the paupers. Since that time its use has 
 
 [Note. The population in 1830 was 3,367. This would give over five pints]
 
 71 
 
 been discontinued, except in the year 1836, when the overseers hough' 
 one barrel, which they furnished them to taper off with. 
 
 Do the paupers ever get ardent spirits 1 
 
 Sometimes a jug is found, which the keeper cracks. Thinks but very 
 little is used by them. 
 
 Which is the most effectual in preventing drunkenness, the law or 
 moral suasion 1 
 
 Thinks moral suasion will have little or no effect on the drunkard. 
 
 Being asked how men can be effectually kept from rum who hanker 
 after it ] Says it could only be done by shutting them all up and having 
 a high wall, and then they would get it somehow. 
 
 Mr. H. here remarked that Dorchester was one of the towns of Nor- 
 folk, represented by Judge Leland as a rum town, where it was sold 
 pretty freely. But that town had improved as to its pauperism. In 1837, 
 it had 55 paupers, and 37 intemperates. In 1838, 45 paupers and 30 
 intemperates. 
 
 Thursday, Feb. 14. 
 
 Mr. Bliss moved that it is inexpedient to hear any more evidence as 
 to the evils of intemperance. 
 
 Mr. Crosby (Agent of the Massachusetts Temperance Union,) hoped 
 the Committee would not adopt that course, to exclude their evidence. 
 
 Mr. Bliss. It is for the Committee and not the Counsel, to decide this 
 matter. Much time had been spent upon matters about which there was 
 no dispute. 
 
 Mr. Bollcs wanted to put in evidence as to the effects of intemperance 
 upon man as a social being. 
 
 Mr. Hallett said that after his withdrawal on the part of the Memorial 
 of H. G. Otis and others, he had suggested no limit as to the course of 
 the other side, though they had gone into all manner of inquiries. Nor 
 should he now. He had since been retained for the Memorial of Samuel 
 Earle, and 1100 others, for whom he now appeared, and had confined 
 himself to cross questions, in order to bring out the whole truth. 
 
 Inquiry was made as to the appearance for other Memorials. Rev. 
 Mr. Whittemore said he appeared with four others in behalf of a Con- 
 vention of Middlesex County. Rev. Mr. Cobb was also an agent for 
 the same Convention, and wished to be heard. Joseph Harrington, 
 Esq. appeared for the Roxbury Society. 
 
 Mr. Bliss's motion then prevailed by a vote of 7 to 3. [Showing only 
 ten out of 35 of the Committee present. This was quite the average 
 attendance.] 
 
 Mr. Stoioell moved to re-consider the above vote, and it was re-consid- 
 ered, and 
 
 Moses Grant of Boston was called by remonstrants. Is Chair- 
 man of the Committees' on the Houses of Industry, Reformation and 
 Correction. In 1838, 405 males were committed to the House of Cor- 
 rection — 190 were common drunkards; 319 females, 152 common drunk- 
 ards. Of those committed by the Police Court, 19 out of 20 have the 
 delirium tremens. In ten years, 7588 persons had been committed to 
 the House of Correction. 
 
 Deacon Grant read at considerable length, statements from a pamph- 
 let of the statistics of the Houses of Correction, Reformation, &c Ho 
 had been 30 years connected with these institutions, and should like to 
 relate a few affecting stories, which he did. He said he knew of a case 
 where a man in Lynn had sent his hoys to Salem to get ardent spirits. 
 Could get none in Lynn. He spoke feelingly upon the evils of intemper- 
 ance in society and families, and read several Police Reports from the
 
 72 
 
 Boston Morning Post, particularly one of June 26, 1838, " I'll not march 
 through Coventry, that's flat." Does not know that it is true, but has no 
 doubt of it. He said, our Police reports do trifle with misery and crime. 
 He knew a case of children coming to a Primary School, intoxicated. 
 It was the fault of their parents, not the Instructress. He could not but 
 think that the new law would have a good effect if enforced. As to its 
 oppression upon the poor, lie had conversed with drunkards who desire 
 the law to be supported. Many persons came to him to know if the law 
 would stand. They expect more than it will effect. 
 
 They did not assist intemperate persons oul of the Alms-house. But 
 their families were aided. He had no means of tracing crime and pov- 
 erty to intemperance, only by general statements and observation. Could 
 not undertake to speak from investigation in each case. The estimates 
 were general. There were more facilities for getting spirits in Suffolk 
 than in any other County, and there ought to be a greater increase of 
 pauperism there than in any other County. 
 
 [Statistics, however show less increase, than in most of the prohibiting 
 Counties.] 
 
 Rev. Jared Curtis. Has been 13 years Chaplain of the State Prison. 
 In all the inquiries he has made of prisoners, three fourths have stated 
 that they owe their commission of crime to the use of liquor. About 
 one half perhaps, committed crime under the influence of liquor. He 
 does not pretend to be numerically correct, but substantially so. The 
 report of Massachusetts State Prison 1833, shows that out of 119 con- 
 victs, 100 say they owe their imprisonment to this beastly vice. Report 
 of 1837, out of 313 convicts in the prison, 150 traced their crimes to 
 drink; 19 used none ; 10-1 temperate drinkers; 190 intemperate. Re- 
 port of 183S — 116 admitted. Examined 1 14 ; 5 used none ; 44 temper- 
 ate drinkers; 62 intemperate; 59 say, led to crime by drink. Believes 
 the prisoners might be reformed, if it were not for intemperance. Last 
 year a person came back ; wished to get into prison again to avoid temp- 
 tation to drink. On cross-examination, says he was simple, an idiot. 
 He stole a horse to get back. 
 
 Cross-examined. There has been an increase of commitments the last 
 year. In 1837, 291. In 1833, 302. The whole class of higher crim- 
 inals-are temperate men. Forgers, burglars, pickpockets, and in crimes 
 that require shrewdness, the convicts are usually total abstinence men. 
 "Witness attributes the increase of crime under the new law, to the in- 
 creased drinking from principle, or opposition to the law. 
 
 Being asked his means of tracing crime to intemperance, says he has 
 no other than what the convicts tell him. . 
 
 Mr. H. Do they not consider it a fair excuse to attribute their crimes 
 to drink 1 Arts. Unquestionably. They are desirous of palliating their 
 crimes by ascribing them to intemperance. 
 
 Ques. Are you not liable to be misled from that cause? Ans. I 
 think so. They often use it" as a palliation. 
 
 Ques. Can you tell how much of intemperance is the result of pre- 
 vious crime and disgrace or bad conduct, as well as the reverse ? Ans. 
 Have no means of arriving at a result. 
 
 Ques. But may not crime produce intemperance as often as the re- 
 verse, and can you show it does not ? Ans. Should think it did not, 
 but undoubtedly they are mutual cause and effect. 
 
 Ques. You speak of intemperance as a beastly vice. Do you know 
 of any beast that habitually injures itself by excessive drinking? Ans. 
 I do not.
 
 73 
 
 Mr. H. Then is it not unjust to irrational animals to call drunkenness 
 a beastly vice ? Mr. C. It had never occurred to him in that light. 
 
 Ques. What means do the convicts in prison resort to, to get intoxi- 
 cating drink ? Ans. They used to resort to various expedients. It is 
 almost impossible to exclude it, but believe it is done now. Some time ago 
 it was found that they would keep their allowance of molasses and yeast 
 for bread, out .of which they brewed stuff that would intoxicate. This 
 was put a stop to. 
 
 Rev. Dr. Tucrerman, of Boston, resident minister for the poor, was 
 called to testify as to the effects of intemperance upon social affections. 
 These he described in an eloquent and impressive manner, and with deep 
 sincerity. If the dram shops could be closed he would willingly take 
 care of the poor. Being asked as to the benefit of laws designed to aid 
 temperance among the poor, says — I hardly know how to answer. Moral 
 persuasion will best succeed with the better sort, but there are cases it 
 cannot reach. When I go to a poor man, whose children are in rags and 
 filth, I cannot use moral suasion with him under this hankering thirst. — 
 There are men far beyond the reach of moral influences. 
 
 Being asked if any law could restrain the hankering of such men, says 
 only by making the gratification impossible. 
 
 Being asked if either law or moral suasion could reform the drunkards, 
 witness says a few are recovered, but very few. 
 
 The counsel for remonstrants asked his opinion of the law of '38? 
 Ans. I am not willing to hazard a judgment, as to the law. They also 
 asked, would the poor resist the law ? Ans. I doubt not the poor 
 would readily submit. The difficulty would be between the City Govern- 
 ment and the sellers. Ques. Would it be oppression to deprive the 
 poor of the use of ardent spirits ? Ans. Oppression ! O ! no ! it would 
 be a mercy. 
 
 Cross-examined by Mr. Hallett. Do you mean to say Dr. Tuckerman, 
 that the poor need more restraint upon their appetites than the rich ? 
 Ans. By no means. I do not wish to be so understood. 
 
 Ques. Do you not find more of the virtues of self-denial and patient 
 endurance in the poor than in the rich? Ans. Undoubtedly. 1 freely 
 admit the virtues of the poor. 
 
 Ques. Is it not unjust then, to attribute so much of poverty to vice 
 and intemperance, and is not poverty inseparable from society without 
 intemperance ? Ans. Surely there is a great amount of poverty arising 
 from circumstances in God's providence. 
 
 Ques. Then you would not imply that poverty involves crime, but 
 may arise from virtuous misfortune? Ans. Unquestionably. I would 
 by no means be understood otherwise. 
 
 Ques. You spoke of oppression. Did you mean to say that a law 
 which should deny an indulgence to the poor in proportion to their 
 means, and grant it to the rich, was not an oppressive and unjust law ? 
 Ans. I do not mean to give any opinion as to the law in question. I 
 only speak of the evils of intemperance which cannot be too deeply de- 
 plored. 
 
 Mr. H. I only asked the question, Sir, to prevent a wrong inference 
 from your answer to inquiries on the other side. No one who knows 
 your disinterested labors in the cause of humanity, can doubt your sin- 
 cerity or fail to respect the purity of your motives, as I do. 
 
 Ashacl Huntington of Salem, District Attorney for the Counties 
 
 of Essex and Middlesex, called and sworn. No retailer's licenses 
 
 had been granted in Essex since 183G, except a few retailers of wine. 
 
 There were great difficulties previous to 1836. There have been prose- 
 
 10
 
 74 
 
 cutions formerly, got up by the drinkers. Now they are got up by the 
 friends of temperance. In Salem there were 32 licenses last year. As 
 to enforcing the law, I am satisfied there will be no difficulty. I think 
 the people are satisfied that it is better that licenses should be withheld. 
 Have bad no considerable difficulty in enforcing the former law and ap- 
 prehend none in this. Have had as practical experiment of enforcing 
 the law in Essex. After licenses were withheld in '36, the friends of 
 temperance determined to enforce the prohibitory law. Indictments 
 were found, the parties would not contend, and were let off on paying 
 costs upon condition they did not offend again. This put a stop to the 
 sale. There were less prosecutions in Essex than in Middlesex, where 
 licenses had been granted. In the latter the fines and prosecutions 
 amounted to $1600; costs to $969. In Essex, fines $375. Costs $1200. 
 
 The Court has decided that the new law repealed the old law as to re- 
 tailers. Whether it does not restrict wine at retail he is not prepared to 
 say. It may be it does not. But he thinks the old law remains as to 
 wine. As to enforcing this law, it can be done wherever there is a gen- 
 eral disposition to enforce it. Otherwise it might be difficult. In the 
 first place he relied on those favorable to the law to enforce it, and next 
 upon the trade, who are very kind in furnishing the best evidence. They 
 understand who the customers are, and if one is prosecuted and can't sell, 
 he likes to see others stopped as well as himself, and will furnish the 
 means to do it. 
 
 In Salem there were 555 paupers, 500 of them from intemperance. 
 The temperance reform was showing itself in Essex. There was a fall- 
 ing off in Salem lately in prosecutions. The fines now go to the Coun- 
 ties and the costs to the Commonwealth. If the fines were paid to the 
 Commonwealth, the State would make money by the prosecutions. The 
 fines exceed the costs.* Most of the criminal prosecutions arose from 
 ardent spirits. Of 250 criminal prosecutions in Salem in 1836, S5 were 
 common drunkards. Of 30 in 1838, 25 were common drunkards. 
 
 Cross-examined. There had been no prosecutions under the law of 
 '38. The prosecutions under the former law were most numerous in 
 Newburyport, probably 60 or 70 dealers. Also in Gloucester, as he un- 
 derstood. 
 
 Mr. H. What is the proportion of decrease of pauperism to the de- 
 crease of licenses in the towns 1 Ans. The decrease of pauperism 
 must be in proportion to the prohibition of licenses. 
 
 Mr. H. Do you know that as a fact 1 Ans. I have no doubt of it. 
 
 Mr. H. Can you show it in any town in Essex ? Ans. I have not 
 the figures. Perhaps in many towns the effect of prohibition has not 
 yet appeared, as it respects pauperism. There has not been time. 
 
 Mr. H. Ought it not to appear in three years 1 Ans. Should think 
 it would. 
 
 Mr. H. Will you name a town in which this result ought to have ap- 
 peared by this time ? Ans. I would take the town of Beverly. The 
 effect should be felt there. 
 
 Mr. H. But suppose pauperism has increased there, how would it 
 effect your theory ? Ans. I presume it will not prove so. 
 
 Mr. H. then produced the official returns of Beverly as follows. In 
 1835, paupers 45, intemperate 23. In 1836, paupers 81, intemperate 
 30. In 1837, paupers 95, intemperate 71 ; of whom 16 were foreigners. 
 
 "Upon this hint, the Legislature subsequently passed an act that the fines recovered 
 in all prosecutions, shall be paid into the State Treasury. The county balances, will 
 now fall upon the counties instead of the State Treasury as heretofore.
 
 In 1838, paupers 82, intemperate 61 ; 3 foreigners. Deducting the 
 foreigners, there were 79 paupers, and 55 intemperates in '37, and 79 
 paupers and 58 intemperates in '38, showing an actual increase instead 
 of decrease. In 1835 and '36, the pauper expenses in Beverly were 
 $1200. In 1837, 81669. In 1838, 81769. 
 
 Mr. Huntington could not explain these results satisfactorily. Ther- 
 must be other causes he thought operating. 
 
 [It was also shown by Mr. Hallett, that in Newburyport and Glouces 
 ter where Mr. Huntington testified there was the greatest sale, there had 
 been a decrease in the number of paupers.] 
 
 Witness said there had been a decrease of crime in Essex, full one third 
 within three years.* He did not expect so much from this law as some 
 did. He valued it chiefly as a moral expression of the Legislature 
 against the use of alcohol. 
 
 Mr. Hallett. Why not then be content with a resolution to that effect, 
 as against the Convent rioters ? Witness, however, thought it was best 
 to have the force of the law on the side of Temperance. He said he 
 believed this law to be, on the whole, a sound and a wholesome law — a 
 law which expressed the " sober second thought " of the people of this 
 Commonwealth, that ardent spirits were not necessary for a man in a 
 state of health, but on the contrary, highly detrimental. He regarded 
 it not so much for its effect in putting a stop to the traffic in ardent spirits, 
 as for exerting 1 a moral influence of the highest importance, on the peo- 
 ple of the State. The law no longer recognized the deceiving doctrine 
 that ardent spirit is a benefit to the community — a public good. He 
 would rather there would be no law, than that a law of the Common- 
 wealth should teach such an egregious falsehood. He thought that the 
 traffic in ardent spirits could not be regulated. If licenses were granted, 
 more people would engage in the traffic without licenses than with — but 
 by prohibiting the traffic, it would be driven into corners and secret 
 places, and it would be consequently much diminished. We shall then 
 no longer find respectable people among either the buyers or sellers. 
 
 On further questions, witness says that the greatest argument against 
 the new law, was that it did not restrict wines. In regard to the licen- 
 sing of Apothecaries, to sell for medicine, it was liable to abuse, and 
 would be likely to increase that sort of sickness. He thought it a fault 
 in the law. ' 
 
 Being asked how he could convict an Apothecary for selling to a man 
 Avho asked for medicine and used it for beverage ; he admitted it must 
 be a question of intent in the seller, and not the act of the buyer, to de- 
 termine the guilt. Of course difficult to prove to a Jury. 
 
 Being questioned as to the objects of the Temperance Conventions 
 held during the session, one of which had just closed in Boston ; he de- 
 nied that they were designed to control the Legislature as to this law, but 
 admitted that no such Conventions had been held here, simultaneously 
 with the Legislature, until this law began to be pressed. A great many 
 members of the House were members of the Convention. The Conven- 
 tion resolved to sustain the law. Witness himself offered resolutions in 
 the Temperance Convention, declaring that it would be immoral to li- 
 cense the sale, and that the Legislature would be false to their trust, or 
 to that effect, if they repealed the law. They were opposed by Profes- 
 
 * The District Attorney committed an egregious error in this statement. The official 
 returns of crime in Essex County show, that in 1835, the whole number of commit- 
 ments to Jails, &c, for crime, was 352. In 1836, 357. In 1837, 4Q6. In 1838, 45:'. 
 In Middlesex, where licenses were granted, commitments for crime in 1835, 171. In 
 1836, 106. In 1837, 142. In 1838, 124.
 
 76 
 
 sor Greenleaf, on the ground that they seemed to dictate to the Legisla- 
 ture, and were liable to the charge of intermeddling ; but neither witness 
 nor the Convention so understood them, and they were, adopted. Mr. 
 Huntington here stated that his engagements required him to leave town, 
 and was released from further cross questions. 
 
 Joseph Tripp, of New Fairhaven, a member of the House. Knew 
 of no tipling shop in Fairhaven, but could not say it was not sold there. 
 In New Bedford a great deal was sold. 
 
 Mr. Baohelder of Lynn. Should think the use in that town had 
 had diminished three quarters, but they get it yet as much as they want. 
 There was much opposition to the law. The Temperance cause had 
 produced a very great change for the better. He thought it had im- 
 proved the paupers. The practical results have been favorable in re- 
 fusing licenses. 
 
 Cross examined. The Apothecaries selling, under the new law, might 
 lead to great mischief. The journeymen could send for a pint or so, for 
 medicine, and drink it in their shops. If wine was free, it would be very 
 injurious to temperance. Thought there was so much opposition, it was 
 going back. 
 
 Mr. Hallctt. Deacon Grant stated, that a man in Lynn had to send to 
 Salem to get rum. Is it so 1 Ans. Any man who loved it could get rum 
 in Lynn without going to Salem. 
 
 Mr. Macomber, of New Bedford. The new rum formerly came from 
 Rhode Island to New Bedford. It never came from Boston. There 
 was undoubtedly a great quantity came to New Bedford, and was sold 
 there, but he could. not state the particulars. 
 
 Capt. Taber, sworn. Resides in New Bedford. Is connected with 
 four regular packets, running between Boston and New Bedford. Has 
 examined their freight books, and finds this result. In 1S3G they carried 
 to New Bedford from Boston, 1391 barrels, 45 hogsheads, and 35 pipes 
 of ardent spirits. In 1837,1233 barrels, 37 hogsheads, and 39 pipes. 
 In 1838, 1072 barrels, 27 hogsheads, and 9 pipes. 
 
 Rum was brought from Rhode Island formerly, but he understood but 
 little came that way now. As to what is done with the rum his vessels 
 carry to New Bedford, the principal part is consumed there. New Bed- 
 ford also supplies Rochester, Wareham, and other towns. Is not ac- 
 quainted with all the modes of supplying customers and evading the law. 
 One individual carts it round as milk, in milk carts. Carries on a large 
 business in this way. One of the Committee asked the name. Witness 
 says it is Eleazer Phillips. Very few are considered respectable who 
 deal in it. Should think the effect had been to change the tra.fic from 
 respectable to disreputable hands. Should think on the whole, the effect 
 was good as to the law, and must promote temperance. Is himself a 
 temperance man. 
 
 Cross-examined by Mr. Hallett. Says the whale ships never carry out 
 spirits, and knows of none exported. All that comes there must be con- 
 sumed or sold in New Bedford and adjoining towns. Should think his 
 own packets did about three quarters of the freighting between Boston 
 and New Bedford. There is another regular packet, not in his concern, 
 besides transient vessels and coasters. In 1837 witnesses' Company 
 voted not to carry any spirits. This sent it all to the other concern, 
 which continued to carry it. His concern then rescinded their vote, 
 and began again. Supposed that might be the reason his vessels did not 
 now carry as much as formerly. 
 
 Mr. H. also questioned witness as to wine casks, which were sent by 
 his vessels from New Bedford to Boston empty, and returned filled. He
 
 77 
 
 says he does not include these in his statement. There were 37 or 38 
 such casks in 1835. Now there are from 40 to 50, annually carried. 
 He cannot tell their contents. They may have been spirits in wine 
 casks. Being asked as to transportation by land, empty jugs and kegs 
 sent in baggage wagons, &c, says he cannot state, but no doubt a great 
 deal is sent in that way. 
 
 Mr. H. You say no respectable persons deal in the article. Is it 
 thought respectable for temperance men to receive the profits of freight- 
 ing the article? Witness had no opinion to give. 
 
 Mr. Hallett. Is not rum &c, brought into New Bedford from New 
 York 1 Ans. Does not know the fact, but presumes it is so. 
 
 Mr. H. Do you not know of a particular instance in which rum was 
 brought into New Bedford from New York, which a person in New Bed- 
 ford was charged with having procured on credit, by false pretences 1 
 Ans. He did know something of a quantity of rum under such circum- 
 stances, brought from New York to Rochester and carted to New Bed- 
 ford by night. 
 
 Mr. II. To whom was that rum brought 1 
 
 Mr. Stowell, of New Bedford, one of the Committee, objected to the 
 question, as irrelevant. 
 
 31r. Hallett. The gentleman from New Bedford, (Mr. Stowell,) was 
 the member who insisted on the names of the customers of the dealers 
 being given, and I hope Mr. Chairman, he will not object to the applica- 
 tion of his own rule to himself. 
 
 Mr. Walcott (Chairman of the Committee.) It is true that the gentle- 
 man made the motion requiring the names, and it appeared to him tho 
 question was a proper one, under the rule. 
 
 The witness then said the person was Eleazer Phillips, the same who 
 sent out the milk carts. 
 
 Mr. H. Has he been demanded by the Executive of ?^ew York, and 
 delivered up by Governor Everett, on a charge of obtaining the rum by 
 false pretences 1 Ans. Such is the fact. 
 
 Mr. II. Who went on to New York with Phillips and got him bailed? 
 
 Mr. Stoicell here interposed and said, Mr. Mc'Nevers was his bail. 
 
 Mr. Hallett to Mr. Stowell. Was it not Mr. Stowell 1 No answer. 
 
 [After the examination of Mr. Macomber and Mr. Bachelder, (which 
 is given before that of Capt. Taber, to preserve the connexion,) and as 
 the session of the Committee was drawing to a close, Mr. Stowell rose and 
 desired to make an explanation. He said a question had been proposed 
 to the witness (Capt. Taber,) as to his, (Mr. Stowell's,) connexion with 
 the procuring of bail for a Mr. Phillips in New Bedford. The object 
 was to cast obloquy upon him, Mr. Stowell, and he wished to explain the 
 circumstances. Mr. Phillips is a near relative of my wife. He was in- 
 dicted, in connexion with one Gurney, for obtaining goods in New York, 
 under false pretences, among which was the rum spoken of. Gurney 
 had bought goods in New York for two years, and sold to Phillips, who 
 had paid for them. Gurney's creditors came to New Bedford, and bein^ 
 unable to obtain their demands in a civil suit, had him arrested as a 
 swindler, and Mr. Phillips as an accomplice, who had property. Gurney 
 agreed to turn States evidence against him. At the request of the friends 
 of Mr. Phillips, and of my father-in-law, I went on to New York with 
 Mr. Phillips, and procured bail for him as I had a fight to do. [It after- 
 wards appeared that Mr. Stowell gave the bail in New York, (a citizen 
 being required) a check on or of his father-in-law for the whole amount 
 of the bail bond, to save the bail harmless.] " 
 
 Mr. Stowell concluded his statement by repeating that he considered
 
 78 
 
 the questions as to Mr. Phillips, designed to cast odium upon him, in re- 
 taliation for having required the names of the purchasers in New Bed- 
 ford, and that it had nothing to do with the case. 
 
 Mr. Hallctt considered it directly in point and very material to the in- 
 quiry. The Memorialists had been trying to show, that notwithstanding 
 the prohibition law, spirits were freely obtained in New Bedford, and this 
 evidence had been excluded on the motion of Mr. Stowell himself, unless 
 names were given. It now turns out that Mr. S. was himself in possession 
 of the fact that a large quantity of rum had been surreptitiously brought 
 to New Bedford, in the night, by one of his own relatives, the largest deal- 
 er in the place ; and yet he concealed this fact from the Committee 
 while suppressing other evidence to show the sending of rum to New 
 Bedford. My object, said Mr. II. was to let the truth cast odium where 
 it might; and but for this inquiry of Capt. Taber, this fact would have 
 been concealed. I have no wish to injure the gentleman, and do not 
 deny his right to procure bail for his relative of the mills, cart, but I 
 would merely suggest for his reflection, lhat if he is willing to uphold and 
 stand bail for those who obtain rum by fraudulent means, he perhaps, 
 ought to be a little more charitable to those who sell it lawfully. 
 
 Mr. Cros.b.y now put in a statement as to the relative amount of 
 costs and lines in the license prosecutions ut.tler the old law. In two 
 years there had bean 6-15 prosecutions, and 401 convictions. Fines 
 $8093. Costs $7670. 
 
 Rev. Mit. Cobb, for the Middlesex Temperance Society, made an ad- 
 dress to the Committee of considerable length, for the law. 
 
 Judge Leland of Roxbury desired to explain his testimony. He said 
 he was in favor of the principles of this law, but now he reflects upon it, 
 bethinks a modification would be better. He is in favor of a prohibition 
 of sale as far as it can be carried. But in some cases there are strong in- 
 terests to resist the law. The case in New Bedford, as given here, showed 
 this. In New Bedford and Boston, and large places, the law would find 
 great obstructions. I have no doubt you cannot enforce the law unless 
 you add wine. It is not strong enough as it is, and it will baffle all your 
 skill to enforce it. If you prohibit only up to fifteen gallons you dont go 
 far enough. If in Norfolk you should say one gallon, the people in two 
 years will carry it to a hogshead. I want to give the people a right to 
 prohibit as far as you can carry it. 
 
 I wish also to say that I have received a communication from the Mayor 
 of Boston, complaining that I had reflected on the City Government. I 
 meant only to say that there would be a great excitement here about this 
 law, and it could not be disconnected from the city officers, nor could 
 you expect any great zeal on their part to carry it into effect. It could 
 only be done by a systematic course on the part of the friends of the law. 
 
 I atri opposed to having a law attempted, that is, to be trampled on, 
 and I fear such will be the case with this. I was astonished to hear of 
 the amount sold in New Bedford, <fcc, in spite of a prohibitory law. So 
 far I wish to qualify my former testimony. 
 
 Mr. Hallctt.- Will you please state whether you mean that the City 
 authorities would not execute the law from the intrinsic difficulties of ihe 
 case, or from wilful neglect ? Ans. I meant distinctly, from the intrin- 
 sic difficulties of the case and not the predisposition of the City Authorities. 
 
 [The testimony here closed on both sides.] 
 
 Monday, February IS. 
 Mr. Henry Williams, of Boston was heard for fifty minutes, in reply 
 to one of the Remonstrants' counsel, Mr. Bolles, who had described the
 
 79 
 
 law of 1822, of which Mr. W. was the author, as an infamous and " dam- 
 nable law," that would confer " an immortality of infamy " upon its au- 
 thor ! 
 
 Joseph Harrington, Esq., of Roxbury, made an argument in favor of 
 the law, for the Roxbury Remonstrants. After Mr. Harrington closed, 
 Mr. Hallett summed up the statistical facts and other evidence, partic- 
 ularly bearing on the pauper question, and presented elaborate tables of 
 statistical facts. 
 
 Monday, February 18. 
 SUMMING UP BY MR. HALLETT 
 
 For the Memorialists, 
 With Statistics as to Crime and Pauperism. 
 
 Mr. Hallett thanked the Committee for the opportunity allowed him 
 to sum up the evidence in this Investigation, and to present a series of 
 important statistical facts, which he should proceed to do as briefly as 
 possible, leaving to his associate Counsel, (Mr. Dexter) the general close 
 in the argument for the Memorial. 
 
 The law under consideration was a great change in standing laws for 
 two hundred years ; suddenly making an innocent act of the citizen, a 
 crime to-day, which ever before had been protected and encouraged as 
 lawful and proper. To induce the Legislature to sustain such a change, 
 those who demand it were bound to show great and certain good, as the 
 result. There should be no doubt, no experiment in so grave a matter, 
 to warrant such new and extraordinary legislation. The remonstrants 
 had failed to make out such a case, or to show the necessity for such a 
 change in legislation. 
 
 Their positions in support of the Act of 1838, and ours in answer to 
 them, are condensed in the following general points. 
 
 First. They contend that the Act goes upon the assumption that in- 
 temperance proceeds from dram shops which it is intended to suppress. 
 This is their main argument, as to the expediency of the law. 
 
 We show that this assumption is unfounded, so far as this Act can op- 
 erate as a remedy, and that instead of diminishing, its effect will be to in- 
 crease the places of sale. 
 
 1. To this point the evidence of the Mayor and Marshal, and the ad- 
 missions of Judge Leland, are conclusive as to the effect in Boston. 
 
 2. The testimony for the Remonstrants shows an increase of dram- 
 selling, under prohibition, in New Bedford, Newburyport, Gloucester, 
 and other towns, and also an increase in Salem. They do not show a 
 positive diminution any where that is not traced to voluntary, moral 
 causes. It is impossible to escape from the fact, that in all the large 
 towns, the places of resort for drinking, will be increased by the opera- 
 tion of this law, and the ineffectual resistance and evasion it will give 
 rise to. 
 
 3. In the smaller towns, where there has been little or no sale, it will 
 increase facilities for obtaining small quantities, by the licensing of Apoth- 
 ecaries who can sell to any one who will pretend he wants it foi medi- 
 cine, and especially by the universal license to keep wine shops. Every 
 man who so chooses, can open a wine shop, under this new Act, and 
 serve his customers with white or red wines to their liking. Their own 
 witnesses say if wine is sold, spirit will be. The whole argument there- 
 fore, touching dram shops, entirely fails, and is disproved by the whole 
 force of the testimony on both sides. If a law is wanted to suppress 
 dram shops, this unconstitutional and ineffectual Act is not that law. 
 
 Second. Their second position is founded on the general evils of In-
 
 80 
 
 temperance and the blessings of temperance. They called six witnesses 
 on this point, Drs. Pierson, Channing and Alden, Mr. Grant and Revd. 
 Messrs Tuckerman and Curtis, and occupied over two sittings of the 
 Committee, besides their arguments in the opening. But they left even 
 this point in more doubt than it was when the investigation began. 
 
 The object was unfair and deceptive — to identify the cause of temper- 
 ance as a principle of good, with this particular Act, when the whole 
 issue is, not temperance, but whether this Act will best promote temper- 
 ance. 
 
 AVe admit the evil, but deny that this Act is a remedy, and contend it 
 will prove an aggravation of the evil. The difficulty is, that the friends of 
 the Act, under a sort of monomania from contemplating extravagant 
 pictures of this evil, comprise in it the sum of all evil; as if human nature 
 would be perfect, without alcohol. We hold that there are other evils in 
 the world, besides intemperance ; a fact which seems to be entirely disre- 
 garded by the ardent friends of this law. So far from remedying this 
 single evil, a law of prohibition will inevitably result in universal license. 
 In short, the axiom which Reformers must sooner or later admit, and the 
 sooner the better for the cause, is, that regulation promotes temper- 
 ance, and prohibition encourages intemperance. On this maxim we 
 stand, as the rational friends of practical temperance. 
 
 Third. They assume that all other laws have failed to suppress in- 
 temperance, and therefore insist on this. As well might they rail against 
 the divine law, for having failed to suppress sin. 
 
 We contend that the evil is one of those which law cannot reach or 
 remedy ; and that attempted prohibition is more injurious to Temperance 
 than wholesome regulation ; because the former cannot be enforced, and 
 leads to universal license : the latter can be enforced, with the general 
 consent, and will restrain the evil. 
 
 Fourth. They contend that by licensing the sale, the Legislature li- 
 cense intemperance, and that to restrain and regulate a lawful act, which 
 by excess may lend to evil, is to sanction that evil. In other words that 
 to regulate the sale, is to authorize an abuse of the use of ardent spirits. 
 
 The proposition refutes itself, because to regulate a lawful act, which 
 if abused, may tend to crime, and punish the crime when committed, but 
 not the innocent act that may be abused ; is not to sanction the crime; 
 whereas the other mode, to prohibit an innocent act in one man, least 
 another should take advantage of it to commit an offence, is to punish 
 the innocent because others may be guilty. 
 
 You punish assaults and violence, when committed, but you do not 
 punish auger and ill temper, which lead to all assaults, and to most of 
 the domestic misery in life. 
 
 You punish larccncy when committed, but you do not destroy proper- 
 ty, or line a man for not concealing his property, so as to prevent all 
 temptations to theft. If legislation should attempt to prohibit all acts 
 that may tend to evil and crime, it must provide a special law for every 
 possible human action. 
 
 The doctrine that it is the duty of the Legislature to remove all temp- 
 tations to crime, would require the annihilation of all individual property 
 to prevent larccncy, and the restriction of every object that can excite a 
 wrong impulse of human nature, or a longing of desire, or a grasping of 
 avarice. No crime is committed without temptation and inducement, 
 but the law, except in this single case, punishes no such inducement or 
 temptation or desire, unless wilfully made and excited in order to abet 
 the crime. The intent then becomes crime in the wilful abettor, and is 
 punished because it is crime, not because it may tend to crime. It can-
 
 81 
 
 not remove temptations to or the causes of voluntary moral aets. It 
 punishes crime because it is a violation of some natural law or right se- 
 cured by Society to the community or to individuals. It does not as- 
 sume to punish inceptive acts that may tend to a violation of moral and 
 divine laws, by abuse, and ultimately lead to a violation of Statute law. 
 It cannot reach or remove temptations to sin. To assume such a power 
 in legislation, would be to fly in the face of Providence, who has made 
 man a free moral agent, and placed good and evil before him, that he 
 may choose which he will. Will the friends of this law rail at the want 
 of wisdom in the Almighty in not having removed all evil from the world, 
 so that good only could exist ? He is the only legislator who has the 
 power to enforce such a law. Is man, without the power, wiser than 
 God? 
 
 Here is a use of a particular article of drink, depending on voluntary 
 choice. The moderate use is lawful in itself and not positively injurious, 
 more than any other harmless luxury temperately enjoyed. The tendency 
 of the use is to excess in some, which ruins themselves and injures oth- 
 ers ; and so is the tendency of every luxury or indulgence not absolutely 
 indispensible to life. The excess is the evil, not the moderate use ; and 
 the only question for wise legislation is, how can it best restrain the evil 
 effects, not how it shall prohibit or render impracticable the moderate 
 use in all, lest it should lead to excess in some. 
 
 Content with the law, is the design of all wise legislation, and in free 
 government there never can be, and never ought to be, content with that 
 kind of legislation which punishes one man for the crime of another, or 
 deprives one man of his inalienable right, because another man may 
 abuse his. There must be something wrong in this Act, for while legis- 
 lation is becoming liberalized, in the punishment of crime itself, even to 
 the abolition of capital punishment, for all but two offences in this Com- 
 monwealth; this law proposes to create new and artificial crimes in order 
 to punish them- — A manifest violence to the spirit and progress of the 
 age. When nearly all civil and religious improvement is left to volunta- 
 ry influences* is it wise to invade voluntary morals by arbitrary laws ? 
 
 Fifth. They deny that the public good requires licensing and regula- 
 tion, but demands prohibition ; and they sneer at this phrase in the old 
 law, of " public good.'''' 
 
 But if regulation restrains the evils of intemperance, and prohibition 
 will increase those evils, then the " public good " requires regulation 
 rather than prohibition. This is the very point at issue. We contend, 
 and all experience proves, that a law of prohibition cannot be enforced, 
 while a law of regulation of trades and occupations may. That the lat- 
 ter promotes, while the former injures, the cause of temperance. Hence 
 if the public good is to be consulted, that course is be adopted which will 
 practically secure the most public good, Licenses are granted for that 
 purpose, and not as the friends of prohibition pretend, because the public 
 good requires the use of the article. 
 
 Even in the little town of Tisbury, (Dukes County) entire prohibition 
 cannot be enforced, and one of the Selectmen of that town has testified 
 that they find it necessary to wink at one place being kept open, as a 
 sort of safety valve. There is true philosophy in this, and there is sound 
 sense in requiring licensing for the public good. Without either licensing 
 or prohibition, the sale would be universal under general standing laws 
 as to all property rights. With prohibition it will practically become so, 
 and the evils of crime, prosecutions and excitements and party conflicts 
 are to be superadded. Licensing is the only practicable limitation, un- 
 
 11
 
 82 
 
 til universal consent establishes disuse without force laws ; and the whole 
 question is, will you have this limit or have none 1 
 
 You might as well undertake to prevent the eruption of volcanoes, and 
 the escape of electricity, by plastering over all the holes in the earth, as 
 to attempt to restrain the appetite by a law of prohibition. 
 
 Sixth. They put into the case the physical and mental evils of intem- 
 perance, and its effects on social affections. 
 
 All this was admitted before they attempted to prove it, in an exagger- 
 ated form, as if to terrify the Legislature into making unjust laws. 
 
 Our reply is, this law is no remedy, nor do they show that it can be 
 any. They beg the question by assuming it will be beneficial if it can 
 be enforced, and the farthest they go, is to hope it can be enforced, while 
 we show that it cannot be enforced. 
 
 On the other hand we show that this Act will be a positive injury to 
 society, to the social virtues, to the rights of property and person, to 
 the public justice and to the cause of temperance. 
 
 1. By the costs and conflicts in unavailing prosecutions to enforce a 
 law against the strongest convictions of personal right in so large a mass 
 of the community as will be found unyieldingly opposed to it, on great 
 fundamental principles. 
 
 2. By the hypocracy, meanness and malice it will engender. By the 
 evasions if not open violence it will incite. By the false witnesses to 
 convict, and the perjuries to escape conviction, in your Courts, and by 
 the inevitable disagreement of Juries, who are bound to acquit, if con- 
 vinced the Act is unconstitutional, unequal and unjust. 
 
 3. By excitements, conflicts and divisions in communities, to the dis- 
 turbance of good neighborhood and the public peace, and by the fixed 
 determination it will give to men to obtain at all hazards what an unjust 
 and unequal law assumes to prohibit to one class of citizens, and allow 
 to another. 
 
 Parties are already formed, for and against this Act, with bigotry, zeal, 
 self-will, pertinacity, interest, and all the incentives, to an excited conflict 
 animating them, as well as principle. Let the struggle go on, and how 
 long before they will be ready to take each other by the throat? Such 
 an unhappy state of things will hardly promote the social affections ! 
 Men of independent spirit, can never be subdued in such a struggle, by 
 the strong arm of a tyranical law, and even if subdued, it can only be to 
 make them discontented citizens, and to leave a breach in social and civil 
 relations, as enduring as the sense of wrong. 
 
 Seventh. The supporters of the Act, answer our Memorials from Bos- 
 ton against it, by sneering at the signers, and the manner in which they 
 write their names. They do not all own or hire houses, ride in carriages, 
 and write elegantly ! therefore their names are not to count in a petition 
 to the Legislature. 
 
 The argument, like the Act it upholds, is founded on unjust and aristo- 
 cratic distinctions in Society. It assumes that a man without visible prop- 
 erty has no stake in society, and should have no political power in the 
 State. It is money and not men, which they contend should count in 
 memorials and petitions to i he Legislating touching the public good! 
 The Constitution recognizes no such distinction. It says " the people," 
 not merely those who own houses and can write well, but " the people, 
 have aright to give instructions to their representatives, and to request of 
 the legislative body redress of wrongs and grievances." 
 
 There are two Memorials from citizens of Boston, bearing 5900 signa- 
 tures. The remonstrants sneer at all they do not find in the Directory, 
 as worthless and of no account. But there are 15000 voters in the City of
 
 83 
 
 Boston, and it is said, not 8000 of them can be found in the Directory. 
 They are without houses of their own, young men, mechanics, journey- 
 men, laborers, the hard working and honest citizens, who are ever more 
 jealous of an infringement on personal rights than the specially favored 
 few, because unequal laws always fall hardest on them. Are these to be 
 excluded and denied the rights of citizenship? 
 
 If this number of 5900 men, (not women and children) are influential 
 and honest citizens, you then have an immense moral power to contend 
 against in enforcing your c/bnoxious law. If otherwise, you then have a 
 mass of more dangerous Opposition ; a physical force, which if reckless 
 and unprincipled, aVir pretended, you have no standing army, no police 
 and no power to control. Let the Remonstrants take their choice of the 
 two impediments to their impossible law. 
 
 Eighth. Their eighth position in support of the Act is, that intemper- 
 ance is a load on political economy, in reference to crime and pauperism. 
 
 If this is meant of intemperance as a moral and physical evil, there is 
 no controversy between us. If an argument for the aet of 1838, as a 
 remedy, we deny its truth and its application. 
 
 Effects on Crime. 
 
 1st, as to Crime. Their evidence is vague and inconclusive. Their 
 statistics mere guesses, without reasonable data or tangible facts — at best, 
 the excuses of criminals who think to palliate their crimes by attributing 
 them to intoxication. In most cases the estimates are made by men 
 zealous in exagerating the evil as the source instead of (often) the conse- 
 quence of all other evils. It is a problem not yet solved, how far intem- 
 perance engenders crime, and leads to misfortune ; or crime and misfor- 
 tune engender intemperance, The vices always go together, like the 
 virtues. They act upon each other, as mutual cause and effect. The 
 vicious become intemperate because they are vicious, quite as often per- 
 haps, as the intemperate become vicious because they are intemperate. 
 
 The temperance Reformers regard it as a sort of "pious fraud," to 
 attribute all vice and crime to intemperance, in order to render it odious. 
 The vice of intemperance cannot be rendered too detestable, as a vice, 
 but when these loose statistics are used to urge the Legislature to violate 
 fundamental rights, and enact arbitrary and unjust laws, it becomes a 
 duty to expose their fallacy. The higher order of crimes, the frauds, and 
 conspiracies, and villainies that wound society deepest, are rarely allied 
 to intemperance. It requires cool heads to perpetrate attrocious crimes. 
 Such is the evidence as to State prisons. 
 
 2nd. There is no increase of crime shown, or that can be shown, 
 which calls for an exercise of a contested and dangerous power by the Le- 
 gislature, or for any extraordinary and doubtful hypothesis to be assumed 
 to justify a questionable Act of legislation. We are making punishments 
 milder, and simply fying the criminal code, on the very ground that crime 
 is diminishing, and yet the argument now is that we must create artificial 
 crimes, and make lawful acts penal, in order to prevent crime ! 
 
 jThere has been in fact, no increase of orime in this country, of late 
 years, to produce alarm, and demand an increase of penal enactments. 
 Population has increased much faster than the ratio of crimes, and in no 
 community on earth, is there less of positive crime than in Massachusetts, 
 though our Statute book goes beyond that of any free State in the world, 
 in the creation of artificial offences; and hence we seem to have more 
 criminals than any other State, and our criminal costs of prosecutions 
 exceed that of all the other New England States together. 
 
 The Remonstrants have given in evidence, the 9th Annual Report of 
 the Prison Discipline Society. Page 29, is an article headed "Not an
 
 84 
 
 alarming increase of crime in Massachusetts, compared with the increase 
 of population." This is shown by their tables giving the results of te n 
 years up to 1834, the very period when no prohibitory laws as to licenses 
 were in existence. 
 
 In Suffolk, where there is the largest foreign influx, the population had 
 increased one third and crime less than one sixth. In Essex C ounty, the 
 only town where crime had diminished, was Newburyport, which is now 
 held up by the District Attorney, in his evidence, as the most reprobate 
 in violating the law of prohibition. Here are figures to demonstrate our 
 position. 
 
 Table of the relative increase of Population and Crime in Massachusetts 
 for ten years+frorn 1833 to 1833. 
 
 Counties. 
 
 Increase of Popula- 
 
 No. of Criminal 
 
 Increase over 
 
 
 tion in ten year*. 
 
 actions in 1833. 
 
 1823. 
 
 
 Suffolk 
 
 18,000 ' 
 
 1,318 
 
 197 
 
 
 Essex 
 
 9,000 
 
 210 
 
 79 
 
 
 Middlesex 
 
 16,000 
 
 175 
 
 94* 
 
 
 Barnstable 
 
 4,000 
 
 »5 
 
 9 
 
 
 Dukes 
 
 225 
 
 9 
 
 6 
 
 
 Bristol 
 
 8,000 
 
 162 
 
 53 
 
 
 Berkshire 
 
 2,000 
 
 34 
 
 6 
 
 
 * Including Lowell within a few years. 
 
 Counties where Crime had decreased, or not increased. 
 
 Hampden 
 
 3,000 
 
 32 
 
 I 
 
 
 Hampshire 
 
 3,700 
 
 17 
 
 5 
 
 
 Norfolk 
 
 5,000 
 
 17 
 
 14 
 
 
 Worcester 
 
 10,000 
 
 40 
 
 14 
 
 
 Plymouth 
 
 4,000 
 
 20 
 
 14 
 
 
 Franklin 
 
 200 
 
 - 31 
 
 14 
 
 
 We all agree that intemperance lias decreased since- 1833, by change of 
 habits and customs, under enlightened moral influence. If crimes have in- 
 creased in the past five years, it would follow that there is more crime un- 
 der the Temperance reform than before it began. But the truth is, crime 
 has not increased. Either way, the argument as to crime, utterly fails to 
 show a demand for, or justification of this Jaw. 
 
 It has besome quite too common to ascribe all crimes and all evils to In- 
 temperance, and to libel ourselves in the estimation of the world, as a com- 
 munity of tipplers and drunkards, for the sake of making out a strong case. 
 The community bore this injustice so long as it is confined to the decla- 
 mation and the guessing statistics of Temperance agents. They will revolt 
 at it, when it is urged as an argument to measure out drink and diet by 
 law — to grant free indulgence to the rich and deny the right of moral voli- 
 tion to the comparative poor. We have been driven by the harshness of 
 this law and the arrogant confidence of its supporters, to test the truth of 
 their positions, which we were not prepared at first to deny. They would 
 not take our admission, and we now {demolish their whole arguments, by 
 showing the falsity of their assumed facts. 
 
 The Remonstrants put in another Document the 13th and last Prison 
 Discipline Report. From that Report 1 have drawn theffollowing compari- 
 son of State Prison offences, not at all favorable to the force laws of Massa- 
 chusetts.
 
 85 
 
 Table of relative commitments to the State Prisons, in Jive States from 
 1836 to 1839, at intervals of four years. 
 
 
 1826 
 
 | 1330 
 
 | 1834 
 
 | 1837 
 
 | 1838 
 
 Decrease. 
 
 Increase. 
 
 Massachusetts. Whole No. 
 
 313 
 
 290 
 
 277 
 
 291 
 
 313 
 
 
 Same. 
 
 Committed 
 
 81 
 
 115 
 
 119 
 
 99 
 
 116 
 
 
 35 
 
 Maine. Whole No. 
 
 79 
 
 94 
 
 64 
 
 77 
 
 
 2 
 
 
 Committed 
 
 58 
 
 36 
 
 33 
 
 34 
 
 
 24 
 
 
 New Hampshire. Whole No. 
 
 59 
 
 68 
 
 79 
 
 72 
 
 70 
 
 
 11 
 
 Committed 
 
 13 
 
 31 
 
 13 
 
 12 
 
 5 
 
 8 
 
 
 Connecticut. Whole No. 
 
 134 
 
 167 
 
 189 
 
 204 
 
 198 
 
 64 
 
 
 Committed 
 
 66 
 
 73 
 
 54 , 
 
 57 
 
 5r 
 
 9 
 
 
 ■ 
 
 From 
 
 
 
 
 
 
 * 
 
 1831 
 
 1832 
 
 1834 
 
 1837 
 
 
 
 
 Sing Sing N. Y. Whole No. 
 
 875 
 
 906 
 
 827 
 
 753 
 
 
 122 
 
 
 Committed 
 
 338 
 
 289 
 
 258 
 
 261 
 
 
 76 
 
 
 The table is not complete in all the Five Slates, from lack of returns, and 
 the last year in Massachusetts is taken from verbal testimony, but the result, 
 by any mode of comparison, gives a decidedly worse exhibit for Massachu- 
 setts, with her temperance laws, than either of the other States without 
 them. In every other State the commitments have decreased. In this 
 State they have alone increased 35, while the whole number is not dimin- 
 ished, though it has done so in every other State but New Hampshire. 
 
 What then becomes of the argument that the state of Crime among us 
 demands Temperance force laws? 
 
 PAUPERISM. 
 
 Ninth. But the great argument for the Act when we began this invest- 
 igation, was pauperism and intemperance. The opening Counsel for the 
 Remonstrants exclaimed " the statistics on crime and pauperism are over- 
 whelming !" And so indeed he will find them, but not on his side of the 
 question. 
 
 We did not desire to detain the Committee on the evils of intemperance, 
 or its effects on crime and pauperism. Supposing there must be some truth 
 in statements made so confidently, we tendered a general cognorit, and offer- 
 ed to make up the issue upon the merits of the Act of 183S. They refused, 
 and insisted upon proving what we had not denied. The inquiry has been 
 forced upon us, and we will meet it with facts and figures that cannot be 
 questioned. ' 
 
 We deny totally that pauperism is increased by licensing, and diminish- 
 ed by prohibition ; and if there be truth in official returns, and the oaths of 
 town officers, we will demonstrate the direct reverse of that proposition. 
 
 We put into the case, as the best possible evidence, the " abstracts of 
 the returns of the Overseers of the Poor," in the towns in the State, from 
 lS35to 1838 inclusive. 
 
 The returns of 1835 and 1836, were made under an order of the House 
 alone, in 1833, requiring the name and circumstances of each individual 
 pauper. There are 306 towns in the State, and this number of Boards of 
 Overseers are to make their separate returns to the Secretary of State, 
 which precludes all possibility of concert between them, and would seem to 
 insure the truth, if- there can be truth in statistics. The Secretary makes 
 an abstract, by Counties, from these town returns, and these abstracts are 
 the authority we rely on in this statement. 
 
 In 1835 — 164 towns made detailed returns. Whole expenditures of pau- 
 pers in the Commonwealth for that year, $239,476, or $392, to every 1000 
 inhabitants.
 
 86 
 
 In 1836 — 204 towns made returns. The whole amount of expenses in 
 the State is not given. 
 
 In 1837, and 1838 — returns were made under an act of April 18, 1836, 
 requiring the Overseers to make correct returns, under a penally of $100. 
 The question as to intemperance, was precisely the same in both years. 
 
 In 1837 — returns were made from 289 towns — all but 16 of the small 
 country towns. Total expenses $306,548. 
 
 In 1833 — returns were made from 299 towns— all but seven in the State. 
 Expenses, 8325,087 — which is 8437 to every 1000 inhabitants. Increase 
 since 1835, 845 (o every 1000 inhabitants. The returns of these towns last 
 year, are made under precisely the same specifications, and those of the two 
 previous years correspond as far as the towns are given, so that taking the 
 same towns, a parrallel comparison can be carried through the whole period. 
 
 There is an apparent discrepancy in the returns for the City of Boston. 
 (Suffolk,) in 1837 and 1838. No return of the out door poor was made till 
 1837. The same question was put to the Overseers in 1837 and 1833, 
 to which they'gave the same answer, as to intemperance, viz : " Three 
 fourths of those in the Alms House; of the out door poor a much less pro- 
 portion." 
 
 This is as definite as the description by a witness of the size of a stone 
 which knocked a man down, " about as big as a piece of chalk !" In the 
 Alms House estimate, it may possibly approximate to truth, though unques- 
 tionably greatly exagerated, and most unjnst to the unfortunate poor. But 
 as to those assisted out of the Alms House, it is a mere wanton guess, and 
 means nothing, I therefore throw it aside in both years, as giving no infor- 
 mation whatever, and take only the estimate of the poor in the Alms House. 
 The Secretary of State, Mr. Bigelow, has very properly pursued this 
 cause this year, (1833) in the abstract. Last year, (1837) Mr. Frothing- 
 ham, one of the Clerks in the Office, who ma<le up the abstract, took three 
 fourths in the Boston Alms House 1082, andtlien at a mere guess, added one 
 half of those assisted out of the Alms House, 918, making a lumping total 
 of 2000. In this way are the unfortunate poor slandered by the wholesale 
 guesses of temperance reformers; too indolent, or self sufficient to invest- 
 igate the truth; and upon these loose libels on the poor is founded the chief 
 pretence for this Sumptuary Act to restrain their appetites, and restrict 
 their rights, in order to save from a pauper tax the pockets of the rich 
 man who may freely indulge in his luxuries.* 
 
 The comparison is therefore properly made, as to Suffolk, upon the Alms 
 House report for 1837 and 1838. With these explanations, we submit the 
 following tables, prepared, and compared with great care, and the accuracy 
 of which, Mr. H. said he had tested in their preparation, with the utmost 
 precision practicable.! 
 
 The Counties in which Licenses have been withheld from 1833 — 4, and 
 which we designate the prohibitory Counties, are Norfolk, Bristol, Plymouth, 
 Barnstable, Nantucket, Dukes, Essex, and Hampshire — 8 Counties. The 
 other six Counties, with a much larger population, and much more exposed, 
 as a whole, to foreigners and other causes of pauperism, are Suffolk, Mid- 
 dlesex, Worcester, Franklin, Hampden and Berkshire. These we desig- 
 nate as the regulating Counties. 
 
 * The Secretary has corrected the error as to Boston, this year, and in a note says, 
 "The abstract includes for Boston only 1088, the same being '' three fourths of those 
 in the Alms i use.." The Secretary having no means of estimating with preEcision 
 the proportion of the out door poor." 
 
 t The tables were submitted to the committee and compared by them for a fortnight, 
 with the official returns, and no error was detected in them.
 
 87 
 
 PAUPERISM. TABLE No. 1. 
 
 Comparison of Pauper Returns from 1835 to 1839, of all the towns in foe 
 
 prohibatcry Counties, from which returns toere made in 1835, N. B. 
 
 The returns for 1835, 1837, and 1838, are from the same towns in each 
 
 County. The retnrns for 1836 are imperfect, and do not embrace the 
 
 same torons. 
 
 Norfolk County, 16 Towns* 
 
 Year 
 
 No of Towns No of Paupers Intemperate Not stated I Expense Whole Population 1 
 
 ! of the Towns 
 
 1835 | 16 out of 22 | 
 
 
 392 
 
 
 1 
 
 86 | 12 i 
 
 | $7,534 
 
 | 28,s3p 
 
 1836 | 19 out of 22 | 
 
 
 411 
 
 
 1 
 
 131 . | 139 
 
 | 13,155 
 
 36,95 1 
 
 1837 | 16 out of 32 | 
 
 
 568 
 
 
 1 
 
 209 | 
 
 | 12,686 
 
 28,838 
 
 1838 | 16 out of 22 | 
 
 
 633 
 
 
 ! 
 
 26-2 | 
 
 | 14,942 
 
 23,8:;8 
 
 * In 17 towns in Norfolk 
 since prohibition began. 
 
 in 
 
 1833, 
 
 there 
 
 were 
 
 343 Paupers, 106 Intemperate : showing an iucri ase ever 
 
 Bristol County, 15 Towns. 
 
 Year 
 
 Mo ot Towns 
 
 No 
 
 if Paupers 
 
 | Intemperate | 
 
 i\Ol 
 
 stated 
 
 Expense | 
 
 Population 
 
 1835 
 
 | 15 out of 19 
 
 1 
 
 430 
 
 I 12U 
 
 
 113 
 
 | I 0,664 | 
 
 35,238 
 
 1836 
 
 12 out of 19 
 
 
 396 
 
 1 158 | 
 
 
 
 | 10,225 | 
 
 3 1.822 
 
 1837 
 
 !5out of 19 
 
 
 854 
 
 1 523 | 
 
 
 
 | 20,659 | 
 
 35,238 
 
 1838 
 
 15 out of 19 
 
 
 915 
 
 6.<4 | 
 
 
 
 | 20,. 22 | 
 
 35,238 
 
 Plymouth County, 17 Toicns. 
 
 Year | No of Towns | No of Paupers | Intemperate | [vot staled | Expense | Pop, in 17 Towns 
 
 1835 | 17 out of l'1 | 
 
 361 
 
 88 
 
 51 
 
 9,814 
 
 36,646 
 
 1836 | Same towns 
 
 344 
 
 72 
 
 60 
 
 1837 
 
 Same towns 
 
 12,319 | 
 
 36,646 
 
 544 
 
 174 
 
 1838 | Same towns | 
 
 572 
 
 J 15,478 | 
 
 36, 646 
 
 26i 
 
 I 16,760 | 
 
 36,646 
 
 Essex County, 17 Toicns. 
 
 Year | 
 
 No 
 
 of Towns 
 
 I No 
 
 of Pai 
 
 pers | 
 
 Inlempr 
 
 rate 
 
 i\ot staled 
 
 E pense 1 
 
 Population 
 
 1835 | 
 
 17 
 
 tiut of 
 
 26 
 
 1 
 
 536 
 
 1 
 
 153 
 
 1 
 
 99 
 
 I 14,029 | 
 
 41,539 
 
 ;83 | 
 
 
 Same 
 
 
 1 
 
 518 
 
 1 
 
 177 
 
 i 
 
 54 
 
 13,626 | 
 
 ;rame 
 
 i837 | 
 
 
 Same 
 
 
 1* 
 
 951 
 
 I 
 
 443 
 
 
 
 | 22,737 | 
 
 Same 
 
 1838 | 
 
 
 S line 
 
 
 1 
 
 968 
 
 I 
 
 50.' 
 
 
 
 | 23,7u7 | 
 
 Mime 
 
 Not inch 
 
 ding Sr 
 
 U: 1 II 
 
 in 1836. 
 
 
 
 
 
 
 
 Hampshire County, 17 Towns. 
 
 Year 
 
 o of Towns 
 
 o of Paupers 
 
 1 1 II tClll |< 
 
 (.rale 
 
 i Not 
 
 staled 
 
 bx pense 
 
 Population 
 
 
 lSJo 
 
 17 out .,f 23 
 
 230 
 
 67 
 
 
 
 30 
 
 5,051 
 
 23,2 .7 
 
 
 1S36 
 
 14 out of 23 not 
 coiresponding 
 
 172 
 
 14 
 
 17 
 
 3,762 
 
 2 >,0S9 
 
 1837 
 
 17 out of 23 
 
 362 
 
 185 
 
 
 
 
 8,928 
 
 23.247 
 
 
 18*8 
 
 17 out of -3 
 
 3*0 
 
 127 
 
 
 1 
 
 
 9,505 
 
 1 . -3,247 

 
 88 
 
 PAUPERISM. TABLE No. 2. 
 
 Comparison of Pauper Returns for 1837 and 1838, betioeen Eight Coun- 
 ties, in Six of iffhich prohibition has been entire for four years, (and in 
 two all but taverns, viz. Essex amd Hampshire,) and, Six Counties where 
 there has been no prohibition. 
 
 ■^i^— i^M W I W» I I » I ■ Ml I !*■■■! II II— ^^M I — ■! — Mil — ^^— * — ^ 
 
 The Eight Prohibitory Counties. 
 
 Counties 
 
 C CD 
 O - 
 
 3 re 
 
 "13 
 o re 
 
 re t 
 
 os'g 
 
 re re 
 •1 
 <• o 
 
 h: 
 
 S OS 
 
 re re 
 
 K O 
 
 Population 
 
 A orf Ik 
 
 Bristol 
 
 Plymouth 
 
 Barnstable 
 .Nantucket 
 
 Dukes 
 
 Hampshire 
 
 Essex 
 
 Totals 
 
 64 
 
 117 
 
 b3 
 
 24 
 
 49 
 ~r3iF 
 
 i so r 
 
 Same 
 
 23 ! 
 
 r 
 
 Same | 
 
 f Same 
 
 13 
 
 TfiF 
 
 I 53 ! 
 
 I 250 | 
 
 57 | $ 1 ,992 | 
 
 543 
 
 J, 896 | 
 
 274 | 
 
 500 
 
 18 
 
 757 
 
 20 
 
 5,144 
 
 498 | . 53 | 28 I 85 
 
 11,124 | 
 
 Aggregate 
 
 Population 
 
 in 1830 
 
 286,610 
 
 Aggregate 
 
 Population 
 
 in 1837 
 
 322,848 
 
 The Six Regulating Counties. 
 
 Counties 
 
 5>§ 
 
 £ re 
 
 s 
 ■c 
 
 "S, 
 
 o re 
 
 k: 
 
 re re 
 o 
 
 HO 
 x re 
 
 Popul .turn 
 
 Suffolk 
 
 1 381 , 
 
 
 1 
 
 15 
 
 1 38) | 
 
 
 1 1 $177 
 
 Aggregate 
 Population 
 
 Middlesex 
 
 1 15 1 
 
 
 1 1 
 
 190 
 
 | 65 
 
 
 | 2,308 | 
 
 Worcester 
 
 1 35 | 
 
 
 1 38 | 
 
 
 1 13 
 
 
 | 3,205 | 
 
 in 18(0 
 
 Hampden 
 
 1 51 | 
 
 1 29 | 
 
 
 1 arj | 
 
 1 23 | 
 
 
 1 
 
 12 
 
 1 2,257 | 
 
 342,142 
 
 Berkshire 
 
 
 1 13 i 
 
 
 1 1,450 | 
 
 In 1837 
 
 Frankln 
 
 1 ■ 1 
 
 2 
 
 37 | 
 
 37 
 
 1 2 | 
 
 
 | | 1 631 
 
 378,483 
 
 Total < 
 
 1 511 | 
 
 2 
 
 1 81 | 
 
 242 
 
 | 478 
 
 12 
 
 1 10,220 | 1.80S 
 
 
 Showing the results in favor of the Regulating Counties, viz : Greater 
 increase of Poor 48; decrease of Intemperate Poor 161 ; increase of For- 
 eign Poor 615 ; increase of Expenses $8,412. 
 
 In the Prohibiting Counties, increase of Poor 461 ; of Intemperates 
 445; decrease of Foreign Poor 57; increase of Expenses $11,124. 
 
 Remarks. Relative nett gain in the Regulating, over the Prohibiting 
 Counties, (notwithstanding a large increase of foreign poor in the former, 
 and decrease in the latter, exceeding by 104 the whole increase of poor 
 in tne former,) viz: nett gain in intemperate poor 606; in expense $2712. 
 
 The comparison is the more striking from the fact that the population 
 in the six Regulating Counties which show the best results as to pauperism 
 and intemperance, was greater in 1830 than in the Prohibiting Counties by 
 55,532, and in 1837 by 55,535. That excess of population if added to 
 the Piohibiting Counties, would, in the some proportion, add 86 intemper- 
 ate poor, making their number, with the same population as the six Regu- 
 lating Counties. 531 actual increase, and a nett relative increase of 682. 
 
 If Salem is deducted from Essex, it only varies the result 25 less pau- 
 pers, 22 less intemperate, 5 less decrease of foreigners, and $400 less ex- 
 pense. E=sex would then stand 166 increase poor, 228 increase intemper-
 
 89 
 
 ale, and $4774 increase expenses;, and Middlesex 15 increase poor, 190 
 decrease intemperate, and $2308 increase expenses. 
 
 The comparison between Essex and Middlesex is a most conclusive de- 
 monstration of the effects of the two policies. Essex has been the field of 
 District Attorney Huntington's zealous labors. Bishop Laud never perse- 
 cuted the conventiclers more furiously than that officer has tire retailers in 
 Essex. He there reigns supremely in Courts and over juries, and convicts 
 whom he will. He has driven this process for six years, while Middlesex 
 and her juries have been unawed by his official power, and that 
 county has licensed and sold freely. What is the result in both these ag- 
 ricultural counties'? 
 
 Essex has 93,000 population, Middlesex 98,000. 
 
 Essex has Salem and Newburyport, Middlesex, Lowell and Charlestown. 
 
 Essex has had a decrease of 20 foreigners to relieve her pauperism, Mid- 
 dlesex has had an increase of 65 foreigners to add to her pauperism, with 
 the constant source of this increase, the shifting manufacturing population 
 of Lowell and other like places, to operate on her pauperism. And yet 
 Middlesex exhibits 151 less increase of poor, 190 decrease to 22S increase 
 in Essex" of intemperate poor, and $2466 less expense in the support of 
 the poor. 
 
 No returns of overseers, wlio are for or against licensing, can affect these 
 aggregates, as to whole numbers and whole expense. The result can only 
 be traced to the operation of the two systems of regulation and prohibition. 
 
 The like result is shown as to crime. In three years, from 1835 to 
 1239, Essex has sent to her prisons 1211 criminals. In the same period, 
 Middlesex but 945. Gain 257. Both- counties have the same prosecu- 
 ting officer. 
 
 PAUPERISM. TABLE No. 3. 
 
 Comparison of Pauperism and Intemperance, between the years 1837 and 
 1838. Full Returns, and complete from all the Counties. 
 
 Counties 
 
 Whole 
 No ol 
 
 1 Poor in 
 1837 
 
 Whole 
 No of 
 1 Poor in 
 1838 
 
 lutein- 
 
 pera e 
 in 
 
 1837 • 
 
 j lntem- 
 
 1 perate 
 m 
 
 1838 
 
 1 !• oreicn- 
 ers in 
 1837 
 
 1 1'oreign- 
 ers in 
 1838 
 
 1 Expenses 
 
 | in 1837 
 
 Expenses 
 in 1838 
 
 Huffol > 
 
 3,291 
 
 | 3,675 
 
 [ 1 ,087 
 
 1,072 
 
 1,304 
 
 1,684 
 
 4 ,913 
 
 42,-36 
 
 Essex 
 
 2,421 
 
 2,612 
 
 1,611 
 
 1,861 
 
 19J 
 
 17' 
 
 53,328 
 
 58,469 
 
 Middlesex 
 
 1 V. 84 
 
 | 2,1199 
 
 | 1,358 
 
 | 1,168 
 
 | 768 
 
 833 
 
 53,518 
 
 55,826 
 
 Worcester 
 
 | 1, 3(5.) 
 
 | 1,395 
 
 | S19 
 
 557 
 
 | 136 
 
 154 
 
 31,5 e 
 
 31,713 
 
 Hampshire 
 
 428 
 
 441 
 
 202 
 
 149 
 
 44 
 
 36 
 
 10,681 
 
 11,438 
 
 11 nipden 
 
 3 it; 
 
 397 
 
 | 135 
 
 160 
 
 | '23 
 
 35 
 
 1 7,821 
 
 9,878 
 
 Franklin 
 
 435 
 
 433 
 
 129 
 
 •Q-j 
 
 2 
 
 4 
 
 1 1 ,233 
 
 9,602 
 
 Berkshire 
 
 | 53!) 
 
 | 568 
 
 | Bfl 
 
 150 
 
 1 »' 
 
 1 34 
 
 1 11,0 2 
 
 12,452 
 
 Norfolk 
 
 800 
 
 809 
 
 29/ 
 
 361 
 
 144 
 
 87 
 
 17,809 
 
 19,751 
 
 Biistol 
 
 | 1,310 
 
 1 >,4 7 
 
 | 866 
 
 929 
 
 2H 
 
 22) 
 
 | 27,7t3 
 
 28,3i'6 
 
 1 lymouth 
 
 636 
 
 | 685 
 
 | '.01 
 
 291 
 
 35 
 
 35 
 
 17,68 
 
 19,514 
 
 B unstable 
 
 3«7 
 
 32i 
 
 58 
 
 81 
 
 ' 
 
 3 
 
 12,588 
 
 12,862 
 
 Dukes 3 towns 
 
 41 
 
 41 
 
 4 
 
 4 
 
 
 
 2,302 | 
 
 2,320 
 
 Nantuckei 
 
 | 98 
 
 | 167 
 
 1 79 
 
 1 « 
 
 1 1 
 
 10 
 
 | 6,720 
 
 7,220 
 
 Tot ils in 3 '5 
 Tiwns 
 
 14,' 99 
 
 15.069 
 
 6,673 
 
 6,962 
 
 2,870 
 
 3,990 
 
 3 6,541 
 
 325,087 
 
 Note. In 1835 the Commissioners on Pauperism estimated the whole 
 expense in the Commonwealth $239,476. 
 
 In 1835, Governor Davis, in his message, called the attention of the 
 Legislature to the fact that pauperism was on the increase. 
 
 Mr. Artemas Simmons, of the Boston Almshouse, says: "The pauper 
 expenses are twice as great in Massachusetts, in proportion to population, 
 
 12
 
 90 
 
 as in New- York, where returns are made annually, by counties." What 
 is the plain inference? The pauper expenses were never seriously com- 
 plained of as increasing in this State, till the force temperance laws began 
 to operate. Under that process they have become double the like expenses 
 in New- York, which has a vastly less moral and industrious population, as a 
 whole, with immensely more foreigners and vagrants, and without a single 
 force temperance law ! 
 
 PAUPERISM. TABLE No. 4. 
 Comparison of Aggregates for the State, in 1837 and 1838 
 
 I Whole -oof I'aupers | intemperate | Foreigners | i xpenses 
 
 In 1838 
 
 15,069 
 
 ci,96'2 
 
 I 
 
 3,290 
 
 I 
 
 . '25,087 
 
 In 1837 
 
 ]4,i-99 
 
 6,673 
 
 •2,870 
 
 306,548 
 
 Ditleience against 1838 
 
 97 U 
 
 2tf9 
 
 420 
 
 $18,439 
 
 Decrease of expense in Suffolk and Franklin, $1,808 
 
 Increase in all the other Counties, $20,537 
 
 fX/ 3 The only towns in the State which have not a single pauper, are 
 Erving and Munroe, in Franklin County ; one of the most temperate 
 counties, and the most opposed to this act of any in the State. 
 
 Plymouth is the only county from which full returns have been made 
 for three years. 
 
 PAUPERISM. TABLE No. 5. 
 The Result in Plymouth for three years. 
 
 1 County 
 3 years 
 
 Whole - o 
 Poor 1836 
 
 Do 
 
 1837 
 
 Do 
 
 1838 
 
 Intern 
 1836 
 
 Do 
 
 1837 
 
 Do 
 
 1838 
 
 Koieign 
 
 1836 
 
 Do 
 1837 
 
 Do ; 
 1838 1 
 
 Exp's 
 1836 
 
 Do 
 
 1837 
 
 i Do 
 1 1838 
 
 Plymouth | 39 > 
 
 | 636 
 
 685 
 
 80* 
 
 | :.01 
 
 | '291 
 
 | 19 35 
 
 | 35 
 
 1 4,995 
 
 | 17,6,8 | 
 
 19,5 4 
 
 Increase from 
 1836 to 1 39 
 
 295 
 
 
 211 
 
 
 16 
 
 
 $4,519 
 
 *i\ot stated. 
 
 This is one of the most rigid prohibitory Counties, and yet how unfavor- 
 able the result. 
 
 PAUPERISM. TABLE No. 6. 
 
 Boston Alms House. 
 
 Year | Whole No of Poor | Intemperate No of Licenses 
 
 1835 
 
 1,476 
 
 1,107 
 
 300 
 
 1836 
 
 1,270 
 
 825 
 
 385 
 
 1837 
 
 1,443 
 
 1,083 
 
 360 
 
 1838 
 
 1.424 
 
 1,063 
 
 403 
 
 Showing in the city, wore there were most licenses and freest sale, a 
 decreaie since 1835 of 52 poor in the Alms House ; a decrease of 39 
 intemperates ; an increase of but $353 in expenses; and an increase of 
 108 licenses. And all this improvement against an increase of 380 for- 
 eigners. 
 
 These are the general aggregates, by State and County estimates, and I 
 ask vou, Gentlemen of the Committee, if, with your preconceived notions 
 on this subject, derived from the loose and hitherto unquestioned statistics 
 of the moral reform agents, you are not prepared to say with one of these
 
 91 
 
 agents who opened the reply, that " the Statistics on Pauperism are indeed 
 overwhelming!" 
 
 But I have not, said Mr. H. relied merely on aggregates. I have run 
 out the minutest details; applied it to towns, and especially to every 
 town held up here, as having improved in pauperism by refusing licenses. 
 The result is uniformly the same as is here demonstrated. 

 
 92 
 
 PAUPERISM. TABLE No. 7. 
 
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 SO ri © SO O (C IO O O Li COO©,-/-, ClClflOOOXNQ 
 
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 24 
 11 
 
 No return 
 No return 
 
 21 
 No return 
 27 
 18 
 45 
 No return 
 do 
 do 
 do 
 161 
 52 
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 26 
 No return 
 No return 
 74 
 100 
 No return 
 No return 
 No return 
 29 
 40 
 48 
 20 
 
 
 jb. - • ft" c-hI g = 

 
 93 
 
 The same results follow from 35 towns, taken promiscuously, all over 
 the state. The figures show that in the towns where licenses have been 
 hardest contended against, and prosecutions most persevering, there is a 
 relative increase of the ichole number of poor, and the expenses of their 
 support, with a corresponding increase of intemperate*. The reverse will 
 be very generally found, on comparison, in the licensing towns. Can this 
 be accidental. 
 
 On which side then is the pauper argument? It is enough for us to 
 sho.v a doubt as to the beneficial effects of this Act upon pauperism. Tha 
 other side is bound to prove it. They fail, and we demonstrate the nega- 
 tive of the main position on which the whole pretence for the continuance 
 of this Act rests. 
 
 Should it be attempted to obviate the effect of this perfectly astounding 
 disclosure, as to the years preceeding 1837, from the fact that before that 
 time the poor were classed as temperate and intemperate, not including 
 wives and children of intemperate persons ; the answer is, that there was 
 another large column in those years, under the head of "not stated ;" and 
 even if all these were added to the intemperates, an increase of pauperism 
 and intemperance would still be shown in the prohit'ting counties. 
 
 But the same rule must apply to regulating as well as prohibiting Coun- 
 ties, and this supposed increase, by adding women and children, is no an- 
 swer as to the comparatively greater increase of paupers and of intemperate 
 paupers, in the prohibiting Counties. Neither does it touch the fact of the 
 increase of the whole number, and of the expenses of paupers, nor in any 
 way apply to the comparative returns of 1837 and 1838. 
 
 Another important fact comes in. There is an increase of nearly 1000 
 paupers in 1837 over 1839; and yet 1837 was the year of pressure and 
 distress, when labor was driven from its means of support ; but in 1838, 
 business revived, and the able bodied who had sought refuge in the Alms 
 House, or been aided by the overseers, were again able to provide for them- 
 selves. Consequently there would be less poor supported in 1833, growing 
 out of the depression of business and labor, than in 1837.* 
 
 So far then as the pauper argument is concerned, if refusing licenses 
 is the test of Temperance it would be easier from actual statistics to 
 show that Temperance increases pauperism, than that Intemperance pro- 
 duces that effect. The result is wholly unexpected, and yet it is soundly 
 philosophical. There is something at the bottom which those who have 
 reasoned on the surface have overlooked. It is a law of human nature, 
 higher than all human laws. Force produces re-action. The class of 
 men most liable to pauperism, but who can sustain themselves by labor 
 under ordinary circumstances, will be the more eager to procure their 
 accustomed indulgence, the more severe the laws are against it ; and as 
 secret indulgence is always more seducing than open, they will drink the 
 more, the more the laws are made to restrain them. This operation of 
 all sumptuary laws may be set down as an axiom in political economy. 
 
 In addition to these statistics which tlemonstrate that the Legislature 
 has no ground for maintaining the force Act of 1838, upon the pauper 
 argument ; the evidence before the Committee, the increased importation 
 in Boston, and the enormous sales to counties where prohibition has pre- 
 vailed ; all tend to the same point. 
 
 * After this demonstration, Mr. Walcott attempted to get round it by hinting that in 
 the prohibitory counties, the Overseers must have exagcrated! If he is content with 
 an argument which proves that the supporters of the Act will prevaricate to sustain it, 
 and that the statistics of intemperance have been over-stated, fur the li pious fraud" of 
 deceiving the public, as to the truth of the matter; he is welcome to all the advantages 
 he can derive from such gross Jesuitism.
 
 94. 
 
 The Committee rejected the evidence as to the sales in Boston to be 
 sent to Bristol and other counties, but the remonstrants gave as a wit- 
 ness, Captain Taber, who more than proved our rejected facts. He 
 swears positively to 1216 barrels, or 48,640 gallons, which he freighted 
 from Boston to New Bedford, in 1838. He admits another packet, car- 
 ried one fourth as much, which makes 60,800 gallons, besides what was 
 sent by transient vessels ; by land, and also in casks marked as wine and 
 vinegar. The aggregate thus proved must exceed the 70,000 gallons 
 .shown by the books of merchants of Boston to have been sent to Bristol. 
 
 The result is, that this pattern Temperance County, with its law of 
 prohibition, has in one year, consumed in a population of 58,152 * up- 
 wards of 79,000 gallons of spirits, which is Jive qtiarts and one pint to ev- 
 ery man, woman, and child in the county. 
 
 'Plymouth, another pattern county, with 46,253 * population, has also 
 consumed 31,000 gallons, received from Boston alone, which is over Jive 
 pints for every mouth in the county ! 
 
 Nantucket, with 9048 population, has had 14,000 gallons from Boston, 
 equal to six quarts, for every mouth in that county ! And by the showing 
 of the remonstrants' witness, (Mr. Bacon,) the town of Sandwich with 
 3579 souls, where he undertook to testify that none was used but by those 
 beyond moral means, has consumed, in less than half a year, 2640 gallons, 
 which is over Jive pints to each inhabitant. What a wide calculation in 
 this witness ! for either most of his townsmen are " beyond moral influ- 
 ence," or a few drink beyond all account ! Both views are incorrect. 
 There is no more moral community in the State, than that of Sandwich. 
 
 These facts will serve to show how little reliance is to be placed on the 
 o-uesses of witnesses as to the diminution in the prohibiting counties; 
 while the pauper argument has been directly reversed, and proves con- 
 clusively, either that the free sale does not increase intemperance, or that 
 there is more consumed to make paupers, in the prohibiting than in the 
 licensing counties. 
 
 The extent to which the zeal of some men will carry them against 
 facts, was remarkably illustrated, by Dr. Alden, of Randolph, who most 
 confidently testified that pauperism had decreased in his town, because 
 drinking had ; when the returns of the Overseers, for four years, exhib- 
 ited exactly the reverse. Let that respectable witness learn to be less 
 confident, in future, if he loves truth as well as temperance. 
 
 Judge Leland, who presented himself as a sort of Napolean, prepa- 
 red to " subdue the dealers " in a campaign of eighteen months, was equal- 
 ly unfortunate. He declared that Foxborough was an example for any 
 town in the Commonwealth, and there was no sale there. Yet in that 
 pattern town, pauperism and intemperance have increased, while in Dor- 
 chester and Quincy, which Mr. Leland specified as places of free sale, 
 pauperism has decreased. Roxbury, with all the facilities of Boston, of 
 which it is virtually the suburbs, is the only town named in Norfolk, 
 where pauperism has diminished. 
 
 The District Attorney, Mr. Huntington, was equally unfortunate and 
 incorrect in his estimates. His pattern towns in Essex, have increased 
 their pauperism much more than the towns he reprobates as still selling ; 
 and the town which of all others he selected to test the pauper argument, 
 (Beverly,) makes one of the worst exhibits in the whole official returns 
 to the Secretary ! 
 
 Tenth. The remonstrants further contend that Alcohol is the great 
 obstacle to all moral reforms, and therefore they must have this force Act 
 to compel those whom they cannot persuade. 
 
 """"Census of 1837.
 
 95 
 
 We prove that if it be so, this Act will but increase the obstacle. But 
 we also maintain that if this Act is to be pushed, there will he found in 
 active ferment, a worse than physical alcohol to stimulate excited men to 
 unjust and injurious acts, — the alcohol of bigotry and misdirected zeal ! 
 
 Dr. Johnson has described the mad philosopher in Rasselas, as really 
 believing that he controlled the physical elements. The gentleman who 
 opened this cause for the remonstrants, (Mr. Crosby,) most complacently 
 represented himself at the head of his Society, as controlling all the 
 moral elements ! 
 
 " We must contrive to make the world better ! " he exclaimed. " These 
 great benevolent operations are under the direction of different Societies 
 who are appointed to carry them forward, and we must have a virtuous 
 community." Meaning, no doubt, " peaceably if they can hut forcibly 
 if they must ! " 
 
 If they must have it, of course they must have force laws to compel men 
 to come into their creeds; and thus, in effect, we are told, that the moral 
 reform associations chiim to be a political power in the State, the su- 
 preme lawgivers upon men's beliefs and appetites, and the great moral 
 regulator! This is in fact the political struggle now going on ; whether 
 these irresponsible Societies or the people shall control the Legislature. 
 
 This is seen in the secret movements of Temperance Societies and 
 Conventions ; an extraneous power, which has directly interfered in po- 
 litical action, and brought about and sustained this law, by a systematic 
 course of dictation and intimidation, to operate upon the Legislature. 
 
 When before did Conventions assemble in the Capital, simultaneously 
 with the Legislature, and pass resolves in relation to a measure before 
 that body, denouncing all who should oppose that measure as recreant to 
 their oaths and to virtue ! Such was the political action of the temper- 
 ance Convention of last year which got up this obnoxious Act, and such 
 has been their course at this session, to force the Legislature up to sus- 
 taining the law. A high public officer, the District Attorney of Essex, 
 was the instrument used to denounce all men in the Legislature who 
 should not come up to the standard of the new creed in voluntary mor- 
 als ; and he confes here as a witness to enforce the instructions of the 
 Convention upon the Legislature : a Convention, Mr. Chairman, of pro- 
 fessing Christian men, who did. not hesitate to pass a vote of censure 
 upon the author of Christianity himself! for they impiously declared 
 that it was immoral to manufacture or sell intoxicating liquor to be drank ; 
 when they knew that the first miracle of the Saviour was to make intox- 
 icating liquor out of water, to be drank at a feast ! * 
 
 Neither did the Saviour seek to promote one good alone, as do the 
 modern moral reformers who absorb all other benevolent objects in this 
 war upon alcohol, in particular forms, and when used by particular class- 
 es of men. The purest moral reformer the world ever saw, went about 
 
 * It was said of the Pharisees of old. by him who spake as never man spake, — " The 
 Son of Man came eating 1 and drinking, and ye say of Him, behold a gluttonous man, 
 and a icine bibber, a friend of publicans and sinners; but wisdom is justified of her 
 children." 
 
 The modern Pharisees, who thank God that they are better than other men, (because 
 they drink wine and try to enforce a law to prevent a laboring man tastinn- gin,) need 
 not lay the flattering unction to their souls, that they swallow no alcohol. A letter 
 from a French House, who had been applied to by a Boston firm to send some pure 
 v.'ine, the freest possible fiom alcohol, was laid before the Committee, in which wai 
 this statement : 
 
 " We have not altered the prices of our Spanish wines, (three grape and two grape. ) 
 The only difference between the two qualities is, that the first was reinforced with (en 
 gallons nil, proof brandy per pipe, and the second with only six gallons."
 
 96 
 
 doing good to all and denouncing none but hypocrites ; inculcating the 
 doctrine of encouraging all the virtues, but above all, charity, and not 
 persecution. It is this makes the perfect man. Contemplating but one 
 vice and studying but one virtue, makes the bigot. 
 
 Lastly, The supporters of this Act maintain it must not be repealed, 
 because the women are for it. This statement is deceptive. The women, 
 as they ought to be, are fur temperance. Without looking into the merits 
 of a particular law, they desire to secure that end, and leave the means 
 beyond moral influence, to the men, who us yet make the laws. Hence 
 the thirty thousand females who have signed memorials for the law, are 
 merely duplicates of the signatures of their husbands, fathers, and sons. 
 
 1 am pleased with this expression of their opinion, and I honor their 
 motives. They ask the Legislature to suppress intemperance, if it can. 
 They do not mean to ask for an unjust and arbitrary law to favor the 
 rich and restrict the poor, and the effect of which will be to increase 
 intemperance. They are sincere, but they are deceived. 
 
 I warn these men, said Mr. H., who have drugged their women and 
 children into this party conflict about laws, that if this Act be persisted 
 in, the time will come when some of these women will upbraid them for 
 the ruin of fathers, husbands, brothers, sons, brought about by the increas- 
 ed intemperance, of which this contest and this law will be the cause. 
 
 I rejoice, said Mr. II., that there is not a female signature against this 
 Act. I am glad that the memorialists have not brought in their women 
 and children, who might have trebled the names on that side. 
 
 In view of the whole investigation, then, what is the conclusion for 
 fair minds to arrive at ? Should a doubtful experiment be persisted in 
 on a false, abstract theory, to sustain the new doctrine of prohibition; or 
 should the settled maxim be again resorted to, that so long as the article 
 and the appetite exist among us, wholesome regulation by law, and moral 
 influences, are the only true promoters of temperance ? 
 
 Would it not then, be the part of wisdom, of magnanimity, to admit 
 the error of this hasty step in legislation ? to retrace that step ; to go 
 back to wholesome regulation, and there remain, until an united commu- 
 nity demand a change, or the evil ceases to exist, by common consent, 
 which will he higher than all law. 
 
 This Act, if continued in existence, must be enforced, or openly viola- 
 ted. It can never be enforced, or if at all, only by a constant and bitter 
 conflict. It cannot be violated, without doing more injury than would 
 regulation and license. May not the memorialists, then, confidently hope, 
 that the Committee and the Legislature, before insisting upon sustaining 
 tiiio Act, will carefully deliberate, and wisely count the cost ? 
 
 February 19. 
 
 The sitting of the Committee was occupied by the closing argu- 
 ment of Pei.eg Sprague, Esq., for the remonstrants, which has been 
 published in pamphlet. The 20th was occupied by Franklin Dexter, 
 Esq., in closing for the memorialists, which terminated the public hear- 
 in ir. 
 
 C2
 
 MR. DEXTER'S 
 CLOSING ARGUMENT FOR THE MEMORIAL. 
 
 Mr. Chairman. By far the greater part of your time has been taken up 
 by the Remonstrants, in stating the evils of which Intemperance is the 
 cause. It was early announced to them by the memorialists, that upon this 
 point there would be no controversy. But it realiy seems as if it were the 
 design of the Remonstrants to drive them to this, as the battle-ground, by the 
 extravagance of their statements. But the memoralists will not thus be di- 
 verted from their object. The question they have submitted to the Com- 
 mittee is simply whether this particular law involving a new principle of 
 legislation is an expedient measure for the restraintof Intemperance. They 
 will not, by entering into a controversy as to the extent of the evil, give their 
 opDonents the advantage of assuming to themselves the name of the Tern- 
 perance party — a name which indicates a division such as does not exist in 
 the Commonwealth. 
 
 But though this matter may pass without dispute, it is impossible not to 
 notice the other proceedings of the Remonstrants, which seem to have been 
 directed rather to excite than to enlighten the minds of the committee and 
 of the public* I may safely say, that upon no other occasion has a com- 
 mittee of this Legislature heard such violent denunciation of individuals, 
 and personal abuse as has been poured out upon the most respectable of these 
 memoralists by one of the opening counsel for the Remonstrants. If the in- 
 dividual who used this language were an unaccredited volunteer in this 
 cause, his want of decency would be unworthy of remark, but whatever be 
 his own claims to consideration, he has stood here for hours, the acknowl- 
 edged counsel and advocate of the Remonstrants, and his ribaldry has drawn 
 out neither rebuke nor apology from those for whom he spake. Really, sir, 
 itseems as if the memoralists were to be driven from the exercise of their 
 mere constitutional right of petition by the fear of personal injury. Upon 
 the simple question whether a particular law designed to promote a cause, 
 of which they profess themselves to be friends, is or is not an expedient 
 and constitutional exercise of power by the Legislature, the memoralists are 
 not permitted to state in the most respectful terms their wishes and reasons 
 without being assailed with opprobrious epithets and accusations. The 
 memoralists come here in the most unexceptionable manner : they put forth 
 in print the grounds of their petition, and they employ counsel to enfoice 
 them, who certainly cannot be accused of having uttered a single personal 
 remark, or made a single appeal to popular feeling. They come here call- 
 ing themselves friends of temperance, and as such, asking for a repeal of this 
 l"w because they think it a violation of the rights of individuals and dan- 
 gerous to the common cause — and they are met by those who differ from 
 them in their opinions, with derision and insult. Their pretensions to what 
 they solemnly nssert to be their principles, are fiercely denied and derided ; 
 they are insulted in this crowded Hall, by the most false and abusive 
 13
 
 98 
 
 accusations. The privacy of domestic life is invaded, and even the sanctity 
 of the grave is not respected. The living — the honored and venerable liv- 
 ing, whom it has pleased Heaven to try with affliction, have been taunted 
 with the infirmities of age ; and the dead who had lived a century unre- 
 proached, and who might have passed into Heaven almost without a change, 
 has been stigmatized as but a later victim to intemperance. Of these me- 
 moralists, the poor are sneered at because they cannot write well enough to 
 please the taste of the counsel, and the rich are ridiculed for their preten- 
 sions of caring for the poor — Sir, was a great moral reform ever accom- 
 plished by such means ? 
 
 But not only have the Remonstrants attempted thus to excite popular in- 
 dignation against the memoralists, but the most extraordinary measures 
 have been adopted to apply an external influence to the deliberations of 
 this Committee. We have seen three Temperance conventions held in the 
 city during this hearing — held not in the regular course of the respectable 
 societies that meet periodically on this subject, but specially called for the 
 purpose of operating upon the decision of this Committee. 
 
 Sir, I beg the committee, I beg the respectable portion of my opponents 
 to consider how fatal is this sort of influence to freedom of debate and de- 
 cision in a Legislature. The Jacobin Clubs of Paris were not more purely 
 revolutionary in their character, whatever may have been the difference in 
 their objects than these attempts to overawe the Legislature by strong ex- 
 hibitions of popular feeling. I cannot but fear as well as deprecate the ef-, 
 feet of such measures. I cannot compliment this committee by pretending 
 to think them superior to their influence — no popular body can be superior 
 to it. The strong voice of a multitude will alarm some and persuade others 
 — The voice of a mob is easily mistaken for the voice of the people — and 
 whatever may be the personal respectability of these individuals, or the purity 
 of their motives — they are acting the part of a mob when they meet in 
 such associations and anticipate in the language of vehement denunciation 
 and resolutions the decision of this question. It is the spirit of a mob to 
 oppose the force of numbers and of noise to that of reason. Sir, this Hall 
 is open for all they and their Counsel have to say in favor of this law — 
 Here the question is to be decided and here it ought to be heard and here 
 alone. Your committee have listened with unexampled patience to all their 
 evidence and arguments relevant and irrelevant. If they choose to be heard 
 elsewhere and before assembled multitudes while this question is pending, 
 what is it but invoking popular excitement to overwhelm the Committee? 
 Why do they call great meetings together to resolve upon that which you 
 alone can decide ! Sir, it is excitement that they seek — it is agitation — 
 and for one, Sir. I do not believe in deciding great moral or political ques- 
 tions by excitement and agitation. I believe it may be accomplished, but I 
 do not believe in its usefulness or propriety. 
 
 But, sir, let us come to the real question before the Committee. Is 
 this particular law an expedient measure for the restraint of intemper- 
 ance 1 The Memorialists ask for its repeal upon two grounds : because 
 it is unconstitutional, because it is inexpedient. Up6n the first of these 
 grounds, I shall not farther occupy the time of the Committee; the argu- 
 ment has been fully and ably stated and needs not to be repeated. The 
 consideration, of this question, belongs more particularly to a judicial 
 tribunal, after a law has once been passed, and I sinll not pursue it fur- 
 ther. But I will briefly state to the Committee what is more proper for 
 their consideration, that grniiting the power of the Legislature to pass 
 luZ ^w, it cannot consistently with the settled construction of the Con- 
 stitution, Sue carrried into effect against the importer of ardent spirits,
 
 S9 
 
 and that thus limited in its operation it will be quite ineffectual for its 
 purposes. 
 
 The power to regulate commerce has been repeatedly decided to be 
 exclusively vested in Congress ; it belongs wholly to Congress and not at 
 all to the States. In the case of Brown vs Maryland, a law of that State 
 was held to be void because it attempted to impose a tax on sales of 
 imported merchandize by the importer. The power to tax, say the Court, 
 implies the power to lay a prohibitory tax, and to prohibit the importer 
 from selling, would be prohibiting the importation, and that would be an 
 attempt to regulate commerce, which no State can do directly or indi- 
 rectly. Now this was the case of a tax on the wholesale dealer, and the 
 direct decision of the Court went no farther than the necessity of the case 
 required. The question will now arise whether the same reasons do not 
 prevent the States from prohibiting the importer from retailing the im- 
 ported article : when the Court was in that case pressed by the argument 
 that the construction adopted would prevent the states from regulating 
 the internal trade of their own territory and from raising taxes upon 
 the property of its citizens, the answer was, that when the importer had 
 mixed up his goods with the mass of the property of the State, they then 
 became subject to taxation and regulation by the State — and as an 
 answer to a particular argument, it was stated that this would be the case 
 if the importer should break up his packages, aad travel about with them 
 as an itinerant pedlar — but no where is it stated by the Court, that by 
 the mere breaking up of the packages, the importer's privilege is des- 
 troyed. It being then settled that the States cannot prohibit the whole- 
 sale of goods by the importer, because that would be a virtual prohibi- 
 tion of importing, how is the retail sale by the importer to be distinguished 
 and made subject to the power of the State ? Suppose a law were passed 
 in express terms, prohibiting all importers from selling any goods by re- 
 tail, can any one believe after the decision of the case of Brown and 
 Maryland, and in view of the reasons of that decision that such a law 
 would be constitutional 1 If as the Court says, the power to import im- 
 plies the power to sell, does it imply only the power to sell by wholesale ! 
 What ground is there for this distinction? A prohibition of the whole- 
 sale trade would not necessarily and totally preclude importation, be- 
 cause the importer could still retail — and so a prohibition of the retail 
 trade would still leave the power of selling by wholesale, but the princi- 
 ple is that the mporter shall not be prohibited from selling his goodsAs to 
 the time and manner of sale, he is subject to all wholesome laws of regula- 
 tion, but no law of prohibition can be applied to him ; to prohibit 
 retailing is as much of an encroachment upon his privilege of sale, as to 
 prohibit the wholesale ; either can be carried on without the other, but 
 both are so far necessary to the freedom of commerce, that the State can 
 no more prohibit one than the other. The true principle of the decision 
 is found in these words — " when the imported article becomes mixed 
 with the common mass of property in the State, then it becomes subject 
 to State laws." Now when does imported merchandize become mixed 
 with the mass of other property ? Not surely by merely opening the 
 casks or boxes — it is still as distinctly the imported article as before. 
 You cannot prohibit the importer from selling a box of sugar, you can- 
 not tax him for the right to sell it. Now suppose he opens the box and 
 sells the sugar by the pound from the box, can you prohibit him from 
 doing that 1 Has he by opening his box, without removing the contents, 
 " mixed them up with the mass of the property in the State ? " Surely it 
 is as distinctly the imported article, though half of the sugar may have 
 been taken out- If the power to import implies the power to sell, why
 
 100 
 
 may he not sell it in part9 as well as in the whole I Or suppose the im- 
 porter of a 15 gallon cask of brandy puts a spigot into the bottom of it 
 and draws off the brandy for sale by the pint ; has this liquor that has 
 never seen the light, been by the mere insertion of the tap, mixed up 
 with the property of the State ? or is the pint that is drawn out for his 
 customer, so mixed up by being drawn out from the cask that he can- 
 not sell it ? It is plain that no such sophistry was intended to be used 
 by the Court. The true principle of the case is, that the importer has 
 acquired by the act of importing, a personal privilege to sell; he acquires 
 under the act of Congress a paramount right to sell, subject to regulation, 
 but not to prohibition by the State. What then is prohibition and what 
 is regulation ? Requiring a license and a tax, was held in that case to 
 be virtually a prohibition, and not a regulation merely, because all were 
 permitted to sell, hut subject to a tax which might be increased until it 
 amounted to a prohibition. But any state law which is fairly a law of mere 
 regulation, like the old license law, may be applied as well to the impor- 
 ter, as to the purchaser from him. The State has never parted with its 
 right to regulate its own internal trade, but it has completely surrendered 
 all power of regulating external commerce. It may therefore prescribe 
 what rules it sees fit for the mode of conducting sales, as well by the im- 
 porter as others, but it cannot prohibit or limit his right to sell that which 
 the law of the United States gives him a right to import for sale. It may not 
 always be very easy to distinguish the cases — because regulation may be 
 made so strict as to amount to prohibition, but when a law is avowedly 
 prohibitory in its object and intent, it is plain that it cannot be applied 
 to the importer. 
 
 Now the law under consideration is most unquestionably a prohibitory 
 act. It contains a new and odious feature not to be found in any of the 
 former Jaws, for it in terms, and absolutely prohibits the retail trade in 
 spirit for drink. It prohibits it to all and under all circumstances. Upon 
 this point indeed our adversaries are not agreed among themselves. One 
 claimed this uovelty as a great merit in the law, and the other as strenu- 
 ously denied it. We take no admission on this po nt, there is no need of 
 it. The former laws distinctly permitted certain licensed persons to sell 
 spirit at retail for drink, this law prohibits any and all persons from so 
 doing. There is a clear clifference in principle. One law declares the 
 trade lawful and licenses it : the other prohibits and punishes it altogether. 
 It is idle to say that the principle is the same in both. A very feeble at- 
 tempt has been made to assimilate them by stating the old law as a 
 prohibition to all but the licensed persons. But let the gentlemen who 
 use this argument adopt their own mode of illustration and see how the 
 question will stand. Certain vices which I need not here particularly 
 name, are now prohibited by law. Suppose a new law were passed 
 licensing certain houses for the indulgence of them, would the gentleman 
 say that this introduced no new principle ? would they consider the Leg- 
 islature who should pass such a law of sanction and regulation as acting 
 upon the same principles with their forefathers who denounced and pun- 
 ished the same vice in every place and under every form ? I do not agree 
 that the cases parallel, though they have been so stated in another part of 
 the argument where they clearly are not so as I shall have occasion to 
 show, but the difference between them does not apply to this particular 
 question. To prohibit a practice altogether, and to permit it to certain 
 licensed individuals, is equally a difference in principle of legislation, 
 whether the practice be in itself a crime or not, but whether it be a crime 
 or not, is a most effectual ingredient in the question of the expediency 
 of its total prohibition. I need not pursue this argument. No one can
 
 101 
 
 seriously doubt that this law presents an entirely new question of princi 
 pie, if the quantity in which alone the sale is permitted, be admitted 
 practically to operate, or to be intended to operate as a prohibition. The 
 intent to prohibit makes the difference ; whether it is successful or not is 
 immaterial to the principle. That the intention is not to regulate, but to 
 prohibit, the drinking of ardent spirit, neither of the counsel has been 
 uncandid enough to deny. Indeed the whole argument proceeds upon 
 the supposition that it is so. The selection of fifteen gallons as the limit, 
 clearly shows this, as that quantity is the least in which by the laws of 
 the United States brandy can he imported. It was therefore the highest 
 limit the Legislature could assume without coming in conflict with the 
 right of the importer of the liquor, as settled by the Supreme Court of 
 the United States. As far as they could go, therefore, without introdu- 
 cing a distinction between different kinds of spirit, the Legislature has 
 gone entirely to prohibit the retail trade. This, then, is a law of prohi- 
 bition, while the old License law was no more a law of prohibition than 
 the law requiring Auctioneers to be licensed, was a prohibition of auction 
 sales. It attempts for the first time to prohibit the retail trade in spirits 
 as drink, to all persons and in all places. And although the law should 
 be thought, notwithstanding the other objections, to be constitutional, 
 it is still inapplicable to the case of the importer. 
 
 Now of what value is this law if every one can retail at pleasure 
 who can import 90 gallons of rum from the West Indies, or 15 gallons 
 of brandy from France ? But the difficulty does not stop here. Con- 
 gress has the same exclusive power to regulate commerce between the 
 States as with foreign nations, and that commerce may be carried on by 
 land as well as by water. Following out the principles of the case of 
 Brown and Maryland, any one who imports a barrel of New England 
 rum from a neighboring State, by land or by water, may retail it at plea- 
 sure. If the principle be, as stated, that to restrict the sale by the im- 
 porter is an encroachment on the power of Congress, and that this priv- 
 ilege continues until the property loses its distinctive character as an 
 import, it is plain that any one may easily qualify himself to be a re- 
 tailer. I am aware of the difficulties this doctrine may seem to involve ; 
 but there would he on the other hand great difficulties in any other con- 
 struction. If one State could prohibit the retail trade in the products of 
 another State, they might in that way carry on the commercial warfare 
 which the Constitution intended especially to prevent. Suppose that 
 South Carolina should choose, in her zeal against the tariff, to exclude 
 our cotton cloth from her territories, could she not virtually accomplish 
 this by prohibiting the retail trade in them, if such a prohibition were 
 not restrained by this construction of the Constitution ? But this con- 
 struction prevents her from imposing any such prohibition on the import- 
 ers, so that she could at most, only make it more inconvenient to obtain 
 the goods by any law that she could pass. It would seem, therefore, not 
 only that this privilege of the importer from another State comes with- 
 in the principle of the decision, but that it is quite necessary to prevent 
 the States from virtually legislating to exclude each others products from 
 their respective territories. 
 
 But, Sir, I do not consider the constitutional difficulties to be the 
 strength of the memorialists case. The injustice and inequality of this 
 law, and its utter inexpediency as a temperance measure, seem to me 
 still stronger objections before the Committee. 
 
 The memoralists contend that this law is unequal in its principle and 
 its intent. It is one law for the poor and another for the rich. It makes 
 the worst possible distinction, that of one who can, and one who can-
 
 102 
 
 not afford to be intemperate. It denies it as a luxury to the poor and 
 permits it, to the rich — instead of denying it to all as a criminal indul- 
 gence. If a man may not buy a single gallon of spirit drink for why 
 should he be allowed to buy fifteen gallons 1 The only auswer that can 
 be given is, that it is more difficult to buy fifteen gallons than one, and 
 that therefore spirit drinking will he restrained and diminished. But 
 why, and to whom is it more difficult to obtain fifteen gallons I — 
 Simply because the greater part of those who drink are too poor to buy 
 the larger quantity- As to those who can buy it, it is no prohibition at 
 all — to those who cannot, the prohibition is absolute. Is this equal 1 It 
 is to be observed that this prohibition is not aimed at dram-drinking in 
 the shop. A miniinum of a quart or a gallon would prevent this as well 
 as, .one of fifteen gallons; but the design is to prevent its being bought 
 and carried away. Now as fifteen gallons is a quantity that can be car- 
 ried away without any great inconvenience, this law really operates in this 
 particular only upon those who cannot pay or be trusted for fifteen gal- 
 lons at a time. It prohibits all from drinking at the counter, but permits 
 ihose to carry away liquor who can pay for it, and prohibits the same 
 thing to those who cannot. As far as this law prohibits drinking at the 
 counter, which is the great evil, in cities at least, it is equal to all. But 
 so far as it restrains the buying to carry away, it takes the most odious 
 and unjust distinction. It leaves to the rich sot unlimited liberty of in- 
 temperance, while it prohibits the poor from the most moderate indul- 
 gence. Now Sir, this is not regulation — it is a most unequal prohibition. 
 Various examples have been put by the Remonstrants to show that this 
 law is not more unequal than others ; but there cannot be found an in- 
 stance in the whole statute book of such inequality. 
 
 In the first place it was said that the old license law was as unequal as 
 this because though all could buy under it, yet all could not sell-but the dis- 
 tinction is very plain. The right of regulation is universally admitted, but 
 there can be no regulation without restraint, and that restraint must be 
 partial — all cannot be licensed retailers or auctioneers, but then all have an 
 equal chance and right to be so. The rich man is not preferred to the 
 poor man-bonds are required it is true which may be more inconvenient to 
 the poor than to the rich man. But the object of requiring bonds is not to 
 disable or discourage the poor from being retailers, but for the necessar/ 
 security of the public against disorder. Then it is said that the Tariff is a 
 law as unequal as this because it enhances the price of broadcloth so as to 
 place it beyond the reach of the poor. Bat what inequality is there in this ? 
 A!! duties and excises necessarily enhance the priceof the article to the poor 
 as well as to the rich ; but to avoid this unequal operation, the higher 
 qualities of it are taxed more in proportion than the lower. The poor man 
 pays qu the coarse fabric which lie must wear with or without a tarhTaless 
 rate of duty than the rich pays on his finer cloths. The rich pays a higher 
 tax upon his dress than the poor man fully in proportion to its better 
 quality. Nay, the very object ofthe tariff and its actual operation, has been 
 by encouraging the manufacture ofthe coarser fabrics to reduce their price 
 below what it could be imported for. Under its operation the poor man now 
 gets a shirt for half what it used to cost him, and to enable him to do so 
 the rich man pays an enhanced price for every article he wears. Every 
 provision of the tariff is especially favorable to the poor. When gentlemen 
 say there is no inequality in this law let them only apply it to some other arti- 
 cle of consumption — Suppose a law made to prohibit the retail trade in cot- 
 ton cloi't. Fifteen gallons of rum it is said costs $G, and we are asked 
 where is the poor man that cannot find $6 to buy it with. 'Not an able bodied 
 man in Massachusetts' it is said 'who cannot at pleasure purchase this quan-
 
 103 
 
 tity.' Sir, this sum ol $6 will buy nearly a hundred yards of coiton shirt- 
 ing, but would it be no hardship upon the '-able bodied" poor man to he 
 retrained bylaw from buying less than 100 yards of shirting? Would 
 $6 in that case be thought so very trifling a sum as to make the inequality 
 nearly nominal ? "Not one of that class of able bodied poor" says the 
 Counsel "would be disabled by this law from purchasing spirit." I do not 
 wonder Sir that the poor ofother countries think this a land of ease and plen- 
 ty, when the starving creatures hear my learned friend solemnly state 
 that not the poorest laborer in Massachusetts but what has his pound ster- 
 ling in his pocket to purchase spirit "at pleasure." I wish the fact was so 
 as to the necessaries of life. This paltry sum of $6 that every able bodied 
 man can spend "at pleasure" for rum, would relieve many a poor family in 
 the state from want and nakedness. Understand me, Sir, I do not claim 
 for the poor or for the rich the same facility for buying rum as for buying 
 food and clothing. Tax it if you think it ought to be restrained, tax it 
 heavily, if you please, but tax it proportionally — put the same tax on 
 the poor man's N. E. Rum or Whiskey as on the rich man's Cognac 
 and Jamaica. Give no facilities to the rich and impose no disabilaties on 
 on the poor — Deal in your wisdom with the whole subject but deal equally 
 to all. And if you will pass prohibitory laws prohibit every one alike. 
 
 There is one more example of the supposed inequality ol the law, which 
 has been dwelt on with great emphasis, as an argument for this ; it requires 
 especial notice for the boldness of the language in which it was put forth, 
 and for its utter unsoundness. I will state it in the language of the counsel 
 whom I select as representing the opinions of the sounder portions of the 
 Remonstrants. 
 
 " Take even that desire which has been imparted by the Author of our 
 Being, for the continuation of the species, not an artificial, but a natural and 
 necessary appetite. As to this too, you give the law. What von permit is 
 lawful, what you forbid is unlawful, and yon absolutely inhibit its indul- 
 gence, unless a man will take to himself a wife to be supported, not fifteen 
 years merely, but for life. Is this obstacle to indulgence equal to the 
 rich and the poor? By the one it is easily overcome; to the other it is 
 often insurmountable. And would these gentlemen ask you to deal out 
 matrimony in smaller doses; to render it lawful for a man to take a wife 
 for fifteen years, or fifteen days!" Again — " may you not restrain ap- 
 petite wherever the good of society requiresit '? A wretch has an appetite 
 for. the wife or daughter of the Remonstrants!" &c. 
 
 I do not bke this topic as a subject of public discussion. I would, for 
 the sake particularly of some whom I see among this audience, jr'Iadlv avoid 
 it. But it has been repeatedly stated as an argument in favor of this law, 
 that the brothel and the retail shops stood on the same ground as public 
 evils. And more especially, as the argument is now put forward in its most, 
 specious form, by the ablest counsel of the Remonstrants, it. must be an- 
 swered in plain language. I take it. Sit, that those who use this last ar- 
 gument, believe it sound, or they would not utter it Now what is it briefly 
 stated ; just this, that you have the same right to restrain the drinking of 
 spirits, that you have to restrain fornication and adultery — nay the language 
 nsed, would as well include the crime of rape. The same right to restrain ! 
 Then you may restrain by the same means; you may punish the one as 
 well as the other. I do not mean to the same degree — but they are equally 
 proper subjects of punishment. And this is the answer seriously given 
 to the complaint that this law undertakes to regulate the appetite ? Why, 
 what possible analogy is there between the two cases? Will such ex- 
 travagant overstatements convince the sober minded people of this State ? 
 Because you can hang the wretch that brutally violates your wife or your
 
 104 
 
 daughter, can you fine and imprison the man that mingles a drop of ardent 
 spirit with his water ? 1 know this law does not attempt to punish the 
 drinking of spirit ; but the argument claims the right to do it — it puts it 
 plainly on the same ground as to that right with the most attrocious 
 crimes. And this argument has been stated here over and over again, 
 in every variety of form, as if it would bear the severest scrutiny. But 
 is there not this plain distinction between the cases, that one is a crime and 
 the other is not ? But both, says the counsel, are appetites, and if one 
 may be restrained by law, so may the other. Sir, are the appetite for 
 crime and the appetite for food the same things 2 both are appetites — 
 that is, both are desires, and the argvranent is that if one desire may be 
 restrained so may another. Now Sir, is it nothing that the voice of God 
 lias forbidden one, and that the other is a crime only, when made so by 
 this very statute! — "What you permit is lawful, what you forbid is un- 
 lawful." The law then is to be justified by itself — it first makes the indul- 
 gence of appetite a crime, and then claims the right to punish it because it 
 is a crime. Sir, there is a distinction between right and wrong established 
 by higher authority than that under which you sit here, and the analogy 
 that confounds the law of God and the law of the Legislature, is of very 
 little value. As to the one the power ot the Legislature is simply declaratory 
 so far as it points out the right and the wrong , as to the other it makes a 
 distinction purely of its own. Fornication, adultery and rape have been de- 
 clared to be crimes by the voice of God, and no legislation can make them 
 lawful — restraint of these is not only the restraint of appetite, but is the re- 
 straint of crime — the restraints of this law are restraints of appetite merely. 
 • ;, Will the gentlemen compel me to state the true analogy of the two cases? 
 and if I must offend against propriety in so doing, I do it not voluntarily, 
 but because our adversaries have compelled me to it. The appetite tor 
 spirit is compared with the sexual appetite, and the law which in effect 
 prohibits the use of spirit to the poor, is said to be of the same charac- 
 ter with that which prohibits to all the irregular indulgences of the sexu- 
 al passion. Now Sir, having shown the dissimilarity of the cases, as 
 stated by the remonstrants, let me show them what law relating to the 
 sexes would be analogous to this relating to the use of ardent spirits. 
 This law restrains the use of ardent spirits not before criminal — that is, 
 it restrains all use of it. Suppose a law were passed restraining, not the 
 irregular indulgence, but all indulgence of the sexual appetite. Suppose 
 the Legislature should undertake on this subject to restrain that which 
 God has permitted, and the regulation of which has been left to man's 
 private discretion. That would be what the memorialists mean by a law 
 in restraint of appetite — not only of an appetite lawful in itself, but of a 
 lawful indulgence of it. Would the remonstrants acquiesce in such sort 
 of legislation upon their domestic affairs 1 And if they complained of 
 it, would they be satisfied with being told, that as the Legislature has the 
 power to restrain the appetite for being drunk, and this is but another 
 appetite, this may be restrained too ? Would they not see in such a case, 
 the wide difference between a simple appetite and an appetite for crime ? 
 Equally fallacious is the argument drawn from the institution of mar- 
 riage, as it affects the rich and the poor. A prohibition of selling that 
 quantity of spirit that comes within the means of the poorest, is com- 
 pared to the law prohibiting fornication and adultery to those who can- 
 not maintain a wife for life. We are tauntingly asked if matrimony as 
 well as spirit should, for equality's sake, be dealt out in "smaller doses," 
 that, the poor may enjoy it as well as the rich. Sir, this cannot have 
 been as seriously said, as the occasion required. Do the gentlemen see 
 nothing in the institution of matrimony but licensed lust 1 Do they not see
 
 105 
 
 the difference between a promiscuous and beastly appetite, and the most 
 refined passion of our nature ? Do they consider a wife as a mere para- 
 mour for life? Do they count for nothing that sentiment, the tenderest 
 of all associations, that binds hearts as well as persons together for life, 
 and makes them dread death less for its own terrors, than because it 
 divides them ? "Smaller doses of matrimony !" What can those think of 
 matrimony who talk thus of it in argument — or even in jest, if they are 
 jesting on so serious a subject ? Sir, they do not mean matrimony ; they 
 mean something very different from it ; and when they ask if we would 
 have smaller doses of that thing dealt out, we answer we would have it 
 in no quantity whatever. They might as well ask us if we would 
 have drunkenness dealt out in smaller doses ; our answer to that, would 
 be, that Ave want neither drunkenness nor lust, but we want rational 
 liberty and equality for all, in the indulgence of the appetite, that God 
 has made it innocent to indulge in moderation ; and in both cases we 
 want no legislative interference in the regulation of it» 
 
 But besides the inequality of the law in prohibiting the sale of small 
 quantities of spirit, it is also grossly unequal in permitting the sale of wine 
 in any and all quantities. Wine is an intoxicating liquor as well as rum, 
 but wine is the drink of the rich man, and rum of the poor. Wine is not, 
 nor ever can be, in this country, the drink of the poor — our own soil 
 produces none, and the charges of importation make it too dear for 
 them. Now, Sir, this law leaves the rich man the unlimited use in the 
 smallest quantities of his refreshment or his poison, if the gentlemen who 
 lecture on this subject, choose to call it so, and denies to the poor that 
 which alone he can afford to buy. In regard therefore to kind, as well 
 as to the quantity permitted to be sold, it is unequal. A gentleman and 
 a poor man may meet in a tavern at night, having travelled through the 
 same storm during the day — cold, wet and weary — the gentleman calls 
 for his glass or his bottle of wine, and the landlord is happy to serve him 
 in any quantity. The poor man calls for his glass of rum and water, 
 and is told that he cannot have less than 15 gallons. Now Sir, even if 
 it were true that every able bodied man in the State can pay for 15 gal- 
 lons, it would be rather a hardship to have to pay for that quantity when 
 he was travelling and could not carry it away with him. If he cannot 
 pay for wine he must be content with water, even when exposure to wet 
 and cold seems to him to require something a little more stimulating. 
 No doubt my friends, Dr. Pierson and Dr. Channing would tell him if 
 they happened to be present, that water was much better for him, but 
 even if he could have their advice for nothing, he might still think it a 
 hardship that he could not take his own, as to what he should eat and 
 what he should drink. Not even in case of sudden sickness, can a tav- 
 erner sell a glass of spirit, and not even the temperance doctors will tell 
 us that there are not cases in which life may be preserved by it. To pass 
 one moment from the irregularity of the law, look at the hardships it 
 may impose upon every one. We all know that in country towns there 
 is no apothecary, and the physician often lives at a great distance from 
 the tavern — now if a feeble person in travelling actually needs a little 
 spirit even as medicine, this law effectually prohibits his getting it. Un- 
 der such circumstances, who would not feel that it was intermeddling 
 Avith that which ought to be left to every man's own discretion 1 
 
 I know of no law that will bear a comparison with it. It puts the whole 
 community under guardianship, because the intemperate cannot be trust- 
 ed with liquor. It denies to all the discretion of using that which non« 
 but fanatics can deny to be often useful, because some will abuse it. It 
 is inconsistent with the whole spirit of our political institutions. It 
 
 14
 
 106 
 
 ► - 
 
 Would be absurd anywhere, but here, it is ridiculous. A people that are 
 trusted by their Constitution with the complete power of self-government, 
 in politics, cannot be trusted with self-government in their diet. They 
 may choose whom they will, every year, to make their laws, and admin- 
 ister them, and may even change their whole original civil compact of 
 government at pleasure ; and yet they cannot be trusted to buy what 
 they choose to drink, lest they should drink too much of it. Sir, this 
 cannot continue to be the law of this Commonwealth — the time will 
 come, and very shortly, if it has not come already, when it will be seen 
 to be a departure from the first principles of our government. I am not 
 surprised that it should have been passed ; because when all know that 
 what is done this year may be undone next, no one fears to try even the 
 wildest experiments. Such a law could only be passed in the very wan- 
 tonness of liberty. That it will be repealed is certain, but whether it 
 shall be now taken away before it has united itself firmly with other val- 
 uable laws, or whether it shall be suffered to remain until the whole sys- 
 tem of legislation on this subject will go with it is a question of deep 
 interest to the community. 
 
 But supposing this State law to be unobjectionable upon the ground 
 of inequality in its operation upon different classes, and looking at it 
 merely as a measure for the promotion of temperanee, I will a?fc the 
 attention of the Committee for a few moments to its probable effects. 
 
 Remember, Sir, it has not yet gone into operation : this is made a 
 reason against repealing it ; but, in my judgment, it is quite the contrary. 
 After it has become the actual law of the land, there would be more rea- 
 son for claiming for it what it advocates, call a fair trial — as yet it is no 
 law at all, but it is to become such, unless sooner repealed, on the first 
 day of May next. Repeal it now, and you have made no change in the 
 legislation on this subject — no more than if the vote upon its passage 
 had been reconsidered. Wait until next session, and you must meet all 
 the evils of a change of legislation ; you will then have to yield to an ex- 
 asperated opposition — to an open contempt of the law; and to the resist- 
 ance and disagreement of juries, what you now deny to reason and re- 
 monstrance 
 
 It is an inexpedient law because it will not effect its purpose, and can- 
 not be enforced. When I say it cannot be enforced, and when the Mayor 
 • of the city told you it could only be enforced at the point of the bayonet, 
 t is not meant that a few individuals may not be convicted on the evi 
 dence of common hired informers — it is not meant that those will be res- 
 cued by force ; but it is meant that nothing short of an armed police 
 will put the law into effectual execution. For one convicted retailer 
 hundreds will violate the law with impunity. See the difficulty of the 
 case. In the first place, who will be witnesses against the offenders ? 
 No one — -unless your temperance agents can train and discipline a band 
 of spies and informers as standing witnesses ; will they do that 1 or will 
 they degrade themselves to the dirty office ? Next, how can you expect 
 a jury to convict under this law ? In such cases the jury are to judge of 
 the law as well as of the fact — they have a right to judge of the consti- 
 tutionality of the law as well as of its application. It would not only be 
 the right but the duty of every juryman who should be satisfied that the 
 law was unconstitutional, to return a verdict of not guilty, wht.tever 
 might be the evidence. Jurors are sworn to return a" true verdict ac 7 
 cording to the law and the evidence. The constitution of th 3 United 
 States is the supreme law of the land — next in authority to that are 
 the statutes passed by virtue of it, and if this statute seems to him 
 to be in conflict with any of the rights secured by those instru-'
 
 107 
 
 ments, a juror has a right, and it is his duty to refuse to convict 
 upon it. I do not mean that such a conclusion should be hastily 
 adopted by jurymen — but they will be addressed with the same ar- 
 guments you have heard here, and is it not reasonable to suppose that 
 at least one man will be found on each pannel who will be willing to be 
 convinced by them. Here are 20,000 memorialist who now declare 
 opinion ! and one dissenting juror will prevent a conviction. Then that 
 come a conflict between courts and juries — new and unconstituti will 
 modes may be adopted to exclude those hostile to the law ; the monal 
 ty of the law will be brought into contempt, and courts of justiceajes- 
 become the scene of angry debate, and perhaps, in the end the judiciary 
 will be sacrificed to the popular feeling. One thing is certain — opposi- 
 tion to this law will increase instead of diminish, unless all violation' of 
 it can be put down at once — If a contest can be carried on by the oppo- 
 nents of the law, they will gain strength every day. Evil disposed per 
 sons will rejoice in the scenes of disorder which it will create, and good 
 citizens will be tired of a warfare that keeps the public mind in agita- 
 tion. It is in vain for the remonstrants to arrogate to their own party all 
 the respectability and virtue of the State, and to class all their opponents 
 among the intemperate and the disorderly. Among the names in this 
 memorial, are the best of our citizens — sober-minded, religious, and 
 peaceable eitizens — men of property — men of influence. This is no 
 cause in which such men will give their names for asking. The course 
 of the memorialists is a responsible one ; it implies deliberation and con- 
 viction — it commits the signer to an opinion that he cannot disavow — 
 while on the other hand the remonstrance is put forward as the act of 
 the " Temperance Party," and thousands of signatures may be obtained 
 for such a paper from those who care nothing for the matter, but think 
 there can be no harm done by being over-virtuous. Look at their peti- 
 tion ; it bears the names of thousands of women — why, Sir, what can 
 these women know of the expediency of this law 1 Good souls ! all 
 they want is to have their husbands and brothers temperate, industrious 
 men — but whether this will make them so or not they are as ignorant as 
 children. 
 
 When I say that this law cannot be enforced in the courts of justice, I 
 speak of what will happen from a knowledge of what has happened. 
 Some of your Committee remember the old embargo law, and the nu- 
 merous prosecutions under it. That was an unpopular law, and many 
 believed it an unconstitutional law, but the courts sustained it and would 
 not allow its unconstitutionality to be argued to the jury — but, Sir, the 
 juries would not convict under it. Verdict after verdict of not guilty, 
 was pronounced in the face of the clearest evidence of the fact. The 
 law totally failed of operation- — the sentiment of the people was 
 against it, and the courts could not enforce it. Look too at the recent 
 case of Abner Rneeland, tried three times before he could be convicted 
 of the most obscene blasphemy ; the fact was not denied, but the law 
 was argued to be unconstitutional and oppressive, and if he had not in- 
 sulted public decency, as well as denied the existence of God, he never 
 could have been convicted. 
 
 Sir, the counsel has told us very emphatically, that the morality of a 
 people cannot be maintained above the morality of their laws. It is 
 equally true that laws cannot be maintained beyond the moral sentiment 
 of the community. They rest upon that, and upon that alone for their 
 support — the moral sentiment of a few enthusiasts will not do — nor of a 
 mere majority — they must have the earnest support of the whole mass of 
 good and intelligent men. When good and intelligent men are seriously
 
 108 
 
 divided upon the expediency of a restrictive law, it cannot be expected 
 to stand: and if gentlemen think there is not such a serious division on 
 this subject, they greatly deceive themselves. Strong as the memorial is 
 in good names, they do not see there one-half the strength of the oppo- 
 sition to this law. A stronger influence exists in the silent, opinions of 
 men whose age, office, and circumstances, prevent their names from ap- 
 pearing here. The support of the law you hear enjoined in the most 
 public manner. You have on one side of this question greetings in the 
 market-place, and prayers standing in the corners of the streets, but you 
 will feel on the other, the strong current of sober opinion revolting from 
 these Utopian schemes of radical reform in morals by the terrors of the 
 law. 
 
 But suppose you can enforce it — that is, suppose you can sup- 
 press all public violation of it ; will the cause of temperance be promot- 
 ed by it? Will pauperism and crime disappear before this mighty en- 
 gine of reform ? 
 
 Sir, upon this point we have example as well as theory — we have facts 
 that are better than all conjecture. By the unwarrantable and illegal con- 
 struction put upon the law, authorizing the County Commissioners to 
 license " as many" retailers as they thought the public good required, in 
 certain Counties, these officers have undertaken to be more virtuous than 
 the law, and have decided that the public good requires none at all. The 
 consequence has been in those counties, just what this law proposes for 
 the whole Commonwealth — complete prohibition of all retailing. And Sir, 
 this Commissioners' law has been tolerably well enforced, except in the 
 very large towns; much better than your law ever can be ; because it is a 
 law enforced by men chosen by the people of the county for the very 
 purpose — the clear will of the majority had been expressed in the choice 
 of Commissioners, and the people know that the same question will be 
 open at the next choice. They do not feel it as a law, but as a tempo- 
 rary regulation always in their power to repeal , but even that law 
 has been openly disregarded in New Bedford, where we are told that 
 rum is retailed about the streets in a milk cart. But what has been the 
 effect of this regulation during the three years it has existed in those 
 counties ? Why, sir, we should not have dared to predict such a conse- 
 quence : it has gone even beyond conjecture. No other sufficient ex- 
 planation of the fact has been or can be given, but it is an indisputable 
 fact, that in those counties where licenses were given, crime and pauper- 
 ism have either diminished or at most increased, but about in the ratio of 
 the increase of foreign population : while in those counties where the pro- 
 hibitory system has prevailed, the system now urged upon us for the whole 
 Commonwealth, crime and pauperism have made the most frightful advan- 
 ces. There can be no mistake about this, the fact is not denied, it stands 
 upon official returns. How is it accounted for, if it be not the legitimate 
 consequence of this system ? They say it was the hard times : pray, which 
 way did the hard times work 1 times were as hard in Boston as they were 
 in New Bedford. Yet crime and pauperism increased in New Bedford, 
 and diminished in Boston. It is said that the sea-board towns suffered 
 particularly by the hard times, and that the prohibited counties all bor- 
 dered on the sea. But again, sir, is not the county of Bristol a sea-coast 
 county 1 And is not New Bedford a great sea-coast, commercial town ? 
 Again, it is said that the influence of "Boston the great reservoir" poisoned 
 the more virtuous counties. True, Boston did supply them with immense 
 quantities of spirit. Incredible quantities were sent to Bristol County, 
 and to taverners and retailers, to be used there in violation of the law. — 
 But do the gentlemen think that if they subject the whole Commonwealth
 
 109 
 
 to this restriction, some other " great reservoir" \viij not open ? If New 
 Bedford can get spirit from Boston, cannot Boston get it from Ports- 
 mouth, from Providence, or New York ? Again they account for it 
 by saying that the general law of the land made it reputahle to drink, 
 because it provides for licenses "for the public good." And do they think 
 by this law to change the moral sentiment of the community. Do they 
 think men drink rum "for the public good" when the law declares it to 
 be so and will leave it off when the Legislature changes its mind on the 
 subject. Really, sir, I have no faith that our community is so docile 
 and ductile to the various changes in speculative morality brought about 
 by Lectures and Conventions. I believe this is a question on which they 
 will judge for themselves, be your laws what they may. Another reason 
 assigned for the backsliding of the Temperance County of Bristol is, that 
 the same general law being administered differently there, and in other 
 counties " has caused a feeling of restlessness, or perhaps resentment 
 to some extent unpropitious to its fair influence." Sir, I was much 
 struck with the admission involved in this explanation. The people of 
 Bristol, it seems, drink from restlessness and resentment, because they are 
 forbidden to do it by law, while people in other counties are permitted 
 to do it : And when you have forbidden the people of the whole State, 
 will not they drink from restlessness and resentment ? What difference 
 does it make that other counties have been allowed to retail, while the 
 people of Bristol by their own act have prohibited it ? Are they angry 
 with themselves? with the fair majority of their own county ? and will 
 they not be as angry with you and with members of other counties, who 
 impose this restriction upon them by law ? Sir, I doubt not the truth of 
 what the gentleman states — that restlessness and resentment under re- 
 straint have aggravated the evil of intemperance in that county, and so 
 it will be every where if this law prevails. When it was first said before 
 the Committee, that under this law people would drink the more from 
 a principle of opposition, the argument was derided, drinking from prin- 
 ciple, was thought too ridiculous to be mentioned. But the fact was known 
 to the Memorialists to have been so, and now the counsel for the Re- 
 monstrants avows it to have been so in their favorite county. The peo- 
 ple of Bristol are angry, because the people of Suffolk can buy liquor 
 while they cannot, and they drink twice as much out. of spite. Just so, 
 sir, it will be elsewhere. Opposition to the law will beget toleration of 
 intemperance, and fifteen gallon kegs will be emptied and filled again 
 in drunken carousals over this impotent attnmpt at restriction. 
 
 But when we object to this law, we are asked for a better. Intemper- 
 ance, it is said, is increasing: what shalll e done? Sir, this brings 
 me to the last topic with which I have to trouble the Committee. 
 When gentlemen ask us what shall be done. We ask them to look at 
 what has been done, one of the greatest moral reformations that the 
 world ever saw has — no, sir, I must change the word — had already been 
 brought about upon the subject. Within the last twenty years an incred- 
 ible change had been wrought in the habits of the people of this State — 
 Intemperance, from being the peculiar vice of our people, had become ex- 
 ceedingly rare. Upon this all are agreed, that a mighty change had been 
 wrought. It is about as weil agreed that within two or three years the 
 course has been the other way. Now what causes produced these two 
 opposite effects ? What causes were at work, and apparently producing 
 them ? The reformation was brought about wholly by a system of ear- 
 nest and persevering appeals to the public opinion, without the least as- 
 sistance from the law. Societies, public meetings, addresses, and trav- 
 elling lecturers. These were the agents that were employed to bring it
 
 no 
 
 about — it was accomplished wholly by what in this discussion has been 
 called moral suasion. Within a few years an increasing rigor of law has 
 been called in aid of this benevolent design, and the measures of 
 moral suasion have been relaxed. I do not think it necessary to bring 
 facts in proof of these statements — every body knows their truth. I 
 wish to make no invidious remarks; but every one who knows by whom 
 and how the measures of the temperance party are now carried on, and 
 who remember by whom and how the reform was begun and carried for- 
 ward will percieve at once how much mere moral influence on this sub- 
 ject has declined. The concentrated voluntary action of individ- 
 uals has subdivided into mere organization. The agents who 
 were before the humble ministers of others, have become the 
 chief of the synagogue ; they find it easier to preside and make reports 
 in conventions than to travel about like the mild and pious Hildreth, rea- 
 soning upon temperance and beseeching men to be saved. The Tem- 
 perance men have become a party — and the party has become numerous, 
 strong and well organized ; and like all men in power, they love the ex- 
 cercise of power. They have become impatient of opposition, and they 
 would wield the thunder of the law to put it down. Sir, the people feel 
 the difference — they see too much of pride, too much of arrogance in all 
 this. The temperance lectures arc deserted — public opinion has lost its 
 tone and its current has turned backward. It is true, it is alarmingly 
 true, that Intemperance has increased, and its increase may be traced 
 back to the time when moral suasion gave way to legislative compulsion. 
 If I were called on to state what was the first error committed in this 
 cause, I should unhesitatingly point to the pledge of total absti- 
 nence required of the members of temperance societies. At t hat point 
 persnsion was first exchanged for compulsion. 1 remember well, sir, 
 and I was in a situation to feel the effect of that measure. I believe that 
 very many retired from all open connexion with the cause, when they 
 found that this attempt was made to bind their consciences. They felt 
 that it put an end to all voluntary action, that each man was to be a spy 
 upon his neighbor, and that a connexion with a temperance society af- 
 ter this pledge, gave to it an inquisitorial power over its members. They 
 felt justly that the abstinence that was compelled by a vow would cease 
 to be a virtue — it brought it down from the sublimity of a voluntary sac- 
 rifice to the paltry fear of being caught in breaking a promise. 
 
 "IVo, not an oath ; if not the face of men, 
 The sufferance of our souls, the times abuse, 
 If these be motives weak break off betimes — 
 
 Unto bad causes swear 
 
 Such creatures as men doubt — but do not stain 
 The even virtue of our enterprize, 
 To think that or our cause or our performance 
 Did need an oath." 
 
 If the gentlemen now ask us in earnest what shall be done, we say to 
 them, retire from the lobbies of the Legislature — let the law be restored to 
 what it was when this State was as remarkable for temperance as it bad 
 before been for intemperance. Repeal your pledge of total abstinence. 
 Give up your ostentatious city conventions whose influence never reaches 
 the poor creatures that most need your good offices, but only exhaust in ex- 
 penses the means that would enable you to send out bumble, pious and 
 warm hearted preachers of temperance. Go back to that moral suasion 
 under which this reform grew up and flourished ; abolish all attempts to 
 orce men to be temperate by fear of punishment, or by the still more
 
 Ill 
 
 futile experiment of biding from them the intoxicating liquor. Respect 
 the rights and liberties of the temperate, as well as the necessities of the 
 intemperate. It is not true, as your counsel has told you, repeating your 
 own words, that "moral suasion has done its office"; it has not "carried this 
 reform as far as it can go without a change of the law," Sir, moral sua- 
 sion got tired before it had half done its office — it became satisfied with 
 the wonders it had done, and too indolent to work longer itself, it turned 
 over its unfinished duties to the hands of the law. I defy the proof that 
 earnest, humble and affectionate persuasion has ceased to prevail with 
 the intemperate as much as it ever did. The misfortune is, that we have 
 less of the means employed to produce the effect. 
 
 But if moral suasion could not carry the reform farther, it would have 
 been well employed in maintaining it where it was ; and now to restore it 
 to that position, would be reward enough for all the efforts of the Remon- 
 strants. It will be time enough for them to say that moral suasion has 
 done its office when they have restored what by its neglect they have al- 
 lowed to fall into decay. Even then, sir, we would cheer them on to far- 
 ther exertions in the use of the same means; and when they find those 
 means — the only means their Master used, when his disciples would bave 
 called down fire from Heaven, — fail to carry the work farther, they may 
 content themselves with the reflection that they have done all they can, 
 and their successors will find full employment in maintaining what they 
 have done. 
 
 Mr. Chairman. I have but one word more to say. Tins Law will ee 
 repealed. I feel tlie strongest conviction that the people will not bear it. 
 It is an encroachment on the rights of the sober and of the temperate. I 
 believe I am as willing as most men to submit to the laws, — but I cannot 
 acquiesce in this. I feel it as an encroachment on my own rights, and 1 
 never can cease to oppose il. Personally as well as representing the inerr.or- 
 alists I protest against it. I protest against it as an unwarrantable restric- 
 tion upon the habits of private life. I proles', against its inequality as it 
 operates on different classes of the community. I protest against it as 
 tending to introduce perjury and contempt of the laws, and as requiring for 
 its execution the base and corrupting instrumentality of ?pies and common in- 
 formers. I protest against it as worse than worthless as a temperance meas- 
 ure ; as an abandonment of all regulation and of the moral means that had 
 already wrought a wonderful reformation throughout the land, and the sub- 
 stitution of a system of prohihition and force. I protest against it as ab- 
 surd in theory and impracticable in execution. Sir. it will be repealed. 
 The question is only whether it shall be done now when a wholesome Jaw 
 of regulation will take the place of it, or hereafter when the public mind 
 has been inflamed by opposition and resistance. You have now (he whole 
 subject in your hands. 1 beseech you, let it not pass out of them until the 
 work is done. 
 
 Note — The Committee have now been able to furnish the public with a full and 
 correct report of all the evidence on both sides, and of the arguments on one side, be- 
 fore the Legislative Committee. They did not feel authorized, from the importance of 
 the subject, to omit any portion of it, and this has caused the delay in its preparation 
 and publication. They ask for these pages a candid consideration, and upon that they 
 are content, to rest the issue in every fair mind. The argument was conclusive with 
 the Committee who heard it, so far as regulation against prohibition is concerned, for 
 they repealed the former and rejected the latter, in their bill. Another Legislature, it is 
 believed, will be free to act upon this great question, with wisdom, candor and forbear- 
 ance. 
 
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