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them exhibit to him some equally dreadful 'crime, which directly and immediately resulted from the sale of ardent spirits, and, but for that, could not possibly have happened. What would be his reply ? Let experience tell what has been the reply to similar appeals.
- These are events of every day's occurrence; why should you point them out as deserving of special notice ?” Strange reasoning !- which would make the very frequency of a crime an argument for its impunity. Fatal influence of custom ! — by which the constant exhibition of evil blinds the eye and hardens the conscience to its enormity. Well might the enemy of rum exclaim to the foe of lotteries,
6 What would you do,
the motive and the cue for passion
Make mad the guilty and appal the free." It is indeed most true, that “these are events of every day's occurrence.” The people, — in advance of their rulers, —have at length become awakened to the solemn truth. That same community, which could be so touched by the self-inflicted death of one man, as to rejoice in the suppression of lotteries, is now moved to its depths by the horrors of a traffic, through which rivers of innocent blood have been shed, and prepared to welcome with the same exultation the unsparing act of government which shall for ever condemn and blast it.
We close our remarks upon this branch of our subject with a short extract from the late work of Bulwer, “ England and the English," - a book which abounds with those original , and striking reflections, so characteristic of its brilliant author. “A good government," says he, “is a directive government. It should be in advance of the people, --it should pass laws for them, not receive all law from them. At present, we go on in abuses, until a clamor is made against them, and the government gives way, - a fatal policy, which makes a weak legislature and a turbulent people. A government should never give way, it should never place itself in à condition to give way, — it should provide for changes ere they are fiercely demanded, and, by timely diversions of the channels of opinion, prevent the possibility of an overflow. When a government acts thus, it is ever strong, - it never comes in contact with the people, — it is a directive government, not a
conceding one, and procures the blessings of a free government by the vigor of a despotic one."
III. It is further objected, that legislation for the suppression of intemperance is wrong ; that the sale of ardent spirits, however pernicious its consequences, is a lawful business, and cannot justly or constitutionally be interfered with by the government; that temperance societies have a perfect right, by argument and motive, by diffusing information and awakening excitement, to effect a change in the habits of the people, to dissuade not only the buyer from buying, but the seller from selling, provided it can be done by moral influence alone; but that, when they invoke the legislature to impose penalties on a regular and quiet traffic, which furnishes profit to a large number of their fellow-citizens, they go beyond their legitimate province, and lend themselves to the encouragement of injustice and oppression.
Before replying directly to these positions, we would take occasion to deny both the propriety and expediency of any interference by temperance societies, as such, with the business of legislation. These are voluntary bodies of individuals, having no legal existence, and therefore nothing to do, in their collective capacity, with the laws of the land. Each member has certain duties to perform, in reference to the temperance cause, by virtue of his subscription to a temperance constitution ; but he has other duties, wholly independent of the former, and in common with every good citizen, as a member of civil society. We think it unwise for societies, eo nomine, to adopt active measures in favor of prohibitory laws. Such proceedings always excite suspicion and prejudice. The cry is raised, of combination and conspiracy to take away the rights of individuals, who stand by themselves, and have no counter-union to resist the attack. If legislation shall be resorted to for the suppression of intemperance, it will be because intemperance is a public evil, - an injury to the state ; there
; fore every man, who labors to bring about the application of this remedy, ought to act in his individual capacity, as a member of the state. We are not aware, that there has been any general departure from this principle. It is very true, that the subject of legislation is discussed at the meetings of temperance societies, -and for the simple reason, that these are the only occasions, on which the friends of temperance find opportunity to come together and consult upon the best means of
N. S.' VOL. XIII. NO. 1.
advancing the cause. But though societies deliberate and resolve, the action which they recommend is uniformly; so far as we know, that of individual citizens, without a pretence that they are bound by the will or vote of a majority. Let this course be persisted in, and calumny will soon be silenced or disarmed. If there must be contention, it will be opinion against opinion, man against man. Truth and justice will turn the scale; and the victory, when gained, will be an honorable and glorious one.
In maintaining the right of the legislature to suppress the traffic in ardent spirit, we are met by one of two difficulties, according to the frame of mind which we happen to be experiencing at the moment. Either so many arguments throng upon us, each, as we think, convincing and conclusive, that. we are compelled to select from among them, and at the same time know not which to choose; or else the objection in question strikes us as self-evidently false, and we find a solecism as hard to disprove as if it were an axiom. Unconstitutionality is, nowadays, the last refuge of political
When all other pleas fail, this comes in, like the benefit of clergy, to save, though not to clear, the convicted sophist. Used originally by those who understand it, it has now become the pet phrase of those who do not; meaning. every thing and any thing as occasion may require ; but fairly susceptible of the following paraphrase, -- " This law I do not like; it hurts my business, and is oppressive ; our constitution does not allow oppression ; the law is unconstitutional.” A precious specimen of radical logic !
We would not dim with the mists of elaborate reasoning a clear and bright truth. We
pass over without comment these simple facts; — that, by the terms of the constitution itself, the legislature is invested with discretionary power to " pass all wholesome and reasonable laws, either with penalties or without, so as the same be not repugnant to the constitution," and therefore, in reference to a proposed law, not the power, but the want of it, must be clearly made out by pointing to some repugnant clause in the instruinent; that “a constant adherence to the principles of temperance” is expressly enjoined, both upon the people in the choice of their officers and representatives,” and upon “lawgivers and magistrates in the formation and execution of the laws ;” and that the immemorial usage of restricting the sale of ardent spirits to the
demands of “the public good” necessarily involves the right of absolutely prohibiting it, when the same great object shall so require. To these plain and brief statements we think only a few observations need be added.
What is it, we would ask, that gives to civil government the right to interfere, for the correction of the various evils that exist among men? Or rather, what is it, that makes it wrong, a plain omission of duty, for government not thus to interfere ? We can think of only three material circumstances. These relate to the magnitude, the extent, and the nature, of the evil complained of. If it be small, limited, or private, although by no means clearly wrong, it is not clearly right or a duty, for the legislature to interpose. But in regard to the evils resulting from intemperance, it is evident, at a glance, that neither of these objections exists. Those evils are, in magnitude, enormous; in extent, all-pervading; in nature, public, and injurious to the community, as a community. The almshouse and the penitentiary are standing and melancholy memorials of this truth ; for drunkenness, we had almost said drunkenness alone, peoples them both. Yet of these institutions, every good government feels itself bound to take peculiar care; and in nothing does our own free legislation more conspicuously exhibit its humanity on the one hand and its judicious severity on the other, than in providing for the relief of the poor and the just punishment of crime. The objection in question involves therefore this singular principle, that, - while it is not only the right, but the duty and immemorial practice, of the government, to see that poverty, actually existing, be not thrown upon the charity of a cold world, but find a sure refuge in the permanent establishments of the state ; and that crimes, after they are committed, be visited with that degree of retribution which the public justice and security demand, -- this same government cannot legislate preventively, concerning the acknowledged source of nearly all the poverty and crime in the Commonwealth, without an arbitrary violation of its charter and of the people's rights.
Shall it be said, that government has no right to interfere with the cause of public evils, but only with the evils themselves; that an act, in itself indifferent, cannot properly be prohibited by law, on account of its injurious consequences ? We could hardly have believed, had not experience taught us, that such a principle would be advanced by any intelligent and
observing man. What pupil, in moral or in political philosophy, bas not read of the “ malum in se," and the " malum prohibitum”? And what distinguishes the latter from the former, but the very circumstance, on which this objection is founded? It, in fact, blots out from the statute-books of all civilized states far the larger portion of their contents. Let us look at one or two obvious illustrations. Gaming is not denied to be a proper subject of prohibitory legislation. Yet who will pretend, that there is any thing criminal in throwing a few square pieces of ivory from a box, or distributing oblong strips of pasteboard around a table ? Lotteries are in themselves innocent, as much so as any other species of hazardous speculation; yet, because they are productive of public mischief, the right to suppress them has never been questioned. We go farther than this, and maintain, that some acts, forbidden not only by the municipal but the divine law, are, under certain circumstances, excusable in themselves, and wrong only in view of their consequences. Theft is an example. The poor man, under the fear of inminent starvation, the fountains of charity sealed against him, — steals from his rich neighbour bread enough to save him from death ; and is imprisoned, as a felon, without one humane and indulgent friend to intercede in his behalf. Why is he, and why does he deserve to be punished ? Simply in reference to consequences ;
- because impunity in theft, however insignificant the subject of it, however pressing the inducement to commit it, would result in an entire insecurity of private property and a dissolution of human society.
Is it objected, tbat intemperance is a private, personal habit; which begins and ends with the individual himself, in no way connects him with society, and therefore wants the most essential circumstance to justify legislative interference? We think that this position might be fully answered, both upon principle and analogy. But a more simple way of meeting it, is to disclaim any recommendation, on our part, of the course to which it refers. We do not contend for laws, which shall prohibit the consumption of ardent spirit. Whether right or wrong, a point on which we have little doubt, we deem it impolitic, undignified, foreign from the genius of the nineteenth century, for government to meddle with the private habits of the citizen; to prescribe “what he shall eat, or what he shall drink, or wherewithal he shall be clothed." But the