The impossibility of enforcing sumptuary laws has been most strikingly observed, where it has been attempted to suppress the consumption of popular delicacies in the first stages of their spread among the people. Thus, an effort was made in this direction in the sixteenth century, as regards brandy; in the seventeenth, as regards tobacco; in the eighteenth, as regards coffee; all which three articles were first allowed to be used only as medicines.[235-1] When governments discovered after some time the fruitlessness of the efforts, they gave up the prohibition of these luxuries and substituted taxes on them instead.[TN 56] [235-2] Thus an effort was made to combine a moral and a fiscal end. But it should not be lost sight of that the lower these taxes are, the greater the revenue they bring in; that is, the less the moral end is attained, the more is the fiscal end. Even Cato took this course. His office of censor, which united the highest moral superintendence with the highest financial guidance, must of itself have led him in this direction.[235-3] In modern times the most important excises and financial duties of entry have been evolved out of sumptuary laws. Even the Turks, after having long tried to prohibit tobacco-smoking in vain, afterwards found in the duties they imposed on that plant a rich source of income. That such taxes are among the best imposed, where they do not lead to frauds on the government, become excessive, or diminish consumption to too great an extent, is universally conceded.
Beyond this there is, on the whole, little left of the old police regulations relating to luxury. Thus, governmental consent is, in most countries, required for the establishment of places where liquors are sold at retail, for the maintenance of public places of amusement, for shooting festivals, fairs, etc.; and this consent should not be too freely granted. The police power prescribes certain hours at which drinking places shall be closed. Games of chance are wont to be either entirely prohibited or restricted to certain places and times (bathing places), or are reserved as the exclusive right of certain institutions, especially state institutions. The object of this is, on the one hand, to facilitate their supervision, and on the other, to diminish the number of seductive occasions. Here, too, belongs the appointment of guardians to spendthrifts, which is generally done on the motion of the family by the courts; but which, indeed, occurs too seldom to have any great influence on the national resources, or on national morals.[235-4]
[235-1] Hessian law that only apothecaries should retail brandy, 1530. English tobacco laws of 1604; Rymer, Fœdera, XVI, 601. Papal excommunication fulminated in 1624, against all who took snuff in church, and repeated in 1690. A Turkish law of 1610 provided that all smokers should have the pipe broken against their nose. A Russian law of 1634, prohibiting smoking under penalty of death. In Switzerland, even in the 17th century, no one could smoke except in secret. Coffee had a hard struggle even in its native place. (Ritter, Erdkunde, XIII, 574 ff.) Prohibited in Turkey in 1633, under pain of death. v. Hammer, Osmanische Staatsverwaltung, I, 75. In 1769, coffee was still prohibited in Basel, and was allowed to be sold by apothecaries only, and as medicine. (Burkhardt, C. Basel, I, 68.) Hanoverian prohibition of the coffee trade in the rural districts in 1780: Schlözer, Briefwechsel, VIII, 123 ff.
[235-2] According to v. Seckendorff, Christenstaat, 1685, 435 seq., a decidedly unchristian change.
[235-3] Livy, XXXIX, 44. In Athens, too, the highest police board in the matter of luxury was the areopagus, which was at the same time a high financial court. Sully transformed the prohibition of luxury in regard to banquets into a tax on delicacies. Similarly, in regard to funeral-luxuries, at an earlier date. (Cicero, ad. Att., XII, 35.)
[235-4] Customary even in the early Roman republic, and adjudged exemplo furioso. (Ulpian, in L. 1 Digest, XXVII, 10.) The immediate knights of the empire were in this respect very severe towards those of their own order. See Kerner, Reichsrittersch. Staatsrecht, II, 381 ff. Sully ordered the parliaments to warn spendthrifts, to punish them and place them under guardianship. (Economies royales, L, XXVI.) According to Montesquieu, it is a genuine aristocratic maxim to hold the nobility to a punctual payment of their debts. (Esprit des Lois, V, 8.)
EXPEDIENCY OF SUMPTUARY LAWS.
To judge of the salutariness of sumptuary laws, we must keep the above three social periods in view throughout. At the close of the first period, every law which restricts the excesses of the immediately succeeding age (the middle age) is useful because it promotes the noble luxury of the second period.[236-1] And so, in the third period, legislation may at least operate to drive the most immoral and most odious forms of vice under cover, and thus to diminish their contagious seduction. It is a matter of significance that, in Rome, the most estimable of the emperors always endeavored to restrict luxury.[236-2] But too much should not be expected of such laws. Intra animum medendum est; nos pudor in melius mutet.[236-3] It is at least necessary, that the example given in high places should lend its positive aid, as did that of Vespasian, for instance, who thus really opposed a certain barrier to the disastrous flood of Roman luxury.[236-4]
But a strong and flourishing nation has no need of such leading strings.[236-5] Where an excrescence has to be extirpated, the people can use the knife themselves. I need call attention only to the temperance societies of modern times (Boston, 1803), which spite of all their exaggeration[236-6] may have a very beneficial effect on the morally weak by the solemn nature of the pledge, and the control their members mutually exercise over one another. It is estimated that, of all who enter them, in the British Empire, at least 50 per cent. remain true to the pledge. In Ireland the government had endeavored for a long time to preserve the country from the ravages of alcohol by the imposition of the highest taxes and the severest penalties for smuggling. Every workman in an illegal distillery was transported for seven years, and every town in which such a one was found was subjected to a heavy fine. But all in vain. Only numberless acts of violence were now added to beastly drunkenness. On the other hand, the temperance societies of the country decreased the consumption of brandy between 1838 and 1842, from 12,296,000 gallons to 5,290,000 gallons. The excise on brandy decreased £750,000; but many other taxable articles yielded so much larger a revenue, that the aggregate government income there increased about £91,000.[236-7] [236-8] The Puritanical laws which some of the United States of North America have passed prohibiting all sales of spirituous liquors except for ecclesiastical, medical or chemical purposes, have been found impossible of enforcement.[236-9] [236-10]