Such are a few of the laws that disgrace the beginning of our national life. Repealed they never were, save by the scorn of time, or the revolt of the human heart, as it struggled into a wider and brighter existence. They were only effective as the expression of a spirit then prevalent. Forward marched the soul, and behind is left the hideous husk. Here and there, on the statute-books of certain states, vestiges may remain of Sabbatarian legislation, but they are a dead letter, to enforce which is seldom or never attempted.
Roscher observes, “That the puritanical laws, which some of the states have passed prohibiting all sales of spirituous liquors, except for ecclesiastical, medical or chemical purposes, have been found impossible of enforcement.” Said Dr. Dio Lewis on this subject: “A very striking illustration of the weakness of law, when it comes in contact with the instinct of liberty, is the result of prohibition in Maine. I have taken pains to learn the facts in that state. I traveled it throughout and conversed with a large number of its leading citizens, almost exclusively temperance men, and became satisfied (notwithstanding the prohibitory law), that intemperance is the great overwhelming curse of the Pine Tree State.” The Doctor then found fully 300 grog shops in Bangor. He says of Portland, also, the number of arrests for drunkenness in 1874 was 2011. He is authority for the statement that, in 1873, the state prison inspectors of Maine reported the enormous number of 17,808 arrests for drunkenness during that year.
Hon. James McGinnis, of the St. Louis bar, several years ago, gave the prohibitory legislation of the whole country (and its practical workings) an exhaustive consideration in all aspects. The results of his study, published to the world, revealed the same condition of affairs in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Delaware, Maryland, Ohio, Indiana, Nebraska, Iowa, and Kansas. On every hand, past and present, he “beheld the impracticability of prohibition.” “I now appeal,” he says, “to the fair-minded reader to give his thoughtful attention to the facts and figures which I have truly and fairly presented, to show that neither crime, pauperism, intemperance, nor any of the ills which are popularly supposed to grow out of intemperance, have been at all lessened by prohibition.”
The political economists are practically unanimous in their reprobation of these laws. Adam Smith vigorously protests against their impertinence and presumption. Of sumptuary laws it has been said their enforcement is exceedingly difficult, as it is always harder to superintend consumption than production. “The latter is conducted in definite localities. The former is carried on in the secrecy of a thousand homes. Besides, such laws have very often the effect to make forbidden fruit all the sweeter.” Spite of the penalties attached to their violation, and of redoubled measures of control, government after government have been compelled to admit their failure in this direction. Laws of this nature always involve an abridgement of individual “liberty,” and of the natural right of every man to do what he “will” with his own. They involve the assumption, also, that a government, with the exercise of paternal authority can judge better than the citizen what will best subserve his or her welfare, in the use of what they have. “But such action belongs more properly to the spiritual than to the temporal power. In ancient life, where there was a confusion of the two powers in the state system, sumptuary legislation was more natural than in the modern world, where those powers have been generally, though imperfectly, separated.”
“I have learned to doubt,” wrote Dr. Dio Lewis, “whether law is very potent in the cure of moral evil. Force is a good agency in breaking rocks and subduing wild beasts; but in curing immorality, in which we strive to regulate the action and reaction of the faculties and passions of the human soul, force is about as well adapted to our purpose as a sledge-hammer to regulating a watch. Some people seem to have the impression that society is restrained from evil by law; that our wives and daughters are virtuous because there is a law against prostitution; that our exemplary citizens refrain from profanity and excess in gaming and drinking because they are forbidden by law; that somehow society is kept in order by law.
“It is not denied that Massachusetts has to-day upon her statute-books other laws involving the same violation of personal liberty as prohibition; but every law interfering with personal habits and propensities has no practical vitality.
“For example, prostitution is an enormous evil; and we have a severe statute against it; but, as a matter of fact, if a house of prostitution be conducted in a quiet, unobtrusive way, the authorities cannot break it up. If any prohibitionist can devise a method by which the authorities can break up such a house, it would be easy to sell his discovery to property holders of New York City for a hundred million of dollars.
“Scattered throughout this city (Boston) there are unnumbered rooms over stores, and other places of business, and in private houses, occupied by persons who are living in the relation of husband and wife without legal marriage. There are not two punishments for every hundred thousand violations of the statutes against such intimacies.
“Gambling is very common in our city. There is a great number of rooms, or suites of rooms, devoted to this practice. In club houses and many hotels, gambling may be found every night, and often lasting all night. Not a fiftieth part of the gambling done in this city takes place in gambling rooms. Why does it never occur to anybody to attempt to enforce the law against gambling in our clubs and other private houses; should they attempt it they would signally fail.”
Although this was said of New England, it is representative of the United States and the civilized world. A like picture might be drawn of every city in our land and throughout Europe. Every candid and intelligent magistrate, or police official, in the country will admit that the law never has, and never can, prevent gaming, intemperance or prostitution. This has been publicly acknowledged by the most eminent men of affairs in Europe. That it is impossible to suppress or exterminate the “social evil” has been demonstrated by Acton, Tait, Parent and Du Chatelet. The latter avows that “licensed houses are the most judicious and the most consistent with good morals.” The police establishments of the continent, finding it impossible to prevent the existence of houses of ill-fame, realized the necessity, not of authorizing, but of licensing them. The vice is now subject to police supervision in Paris, Toulon, Lyons, Strasburg, Brest, Hamburg, Berlin, Vienna, Naples, Brussels, Rheims, Bordeaux, Marseilles, Copenhagen, Madrid, Malta, Lisbon, Amsterdam and St. Petersburg. A like policy obtains in Bombay, Hong Kong, Japan, New South Wales and Cape Colony.