LETTER OF

HARRISON GRAY OTIS, ESQ.,

ON SUMPTUARY LAWS.

BOSTON, Sunday, August 5, 1855.

To the Editor of the Boston Courier:

DEAR SIR: A correspondent of yours, in your paper of Saturday, refers to a letter written by the late Hon. Harrison Gray Otis, on the subject of the policy of attempting to make men temperate by enacting stringent penal laws. As I happen to have a copy of that letter at hand—and as we may always recur with pleasure and with safety to the opinions and the judgment of that distinguished man and accomplished gentleman-I enclose the copy herewith.

The letter was addressed to a member of the Legislature of our Commonwealth, while a strong prohibitory and penal bill was pending before that body, and many years after the writer had retired from any active participation in public affairs. As an argument against coercive measures in aid of temperance, it may be as applicable now as it was at the time it was written, and at any rate, it presents the views of one who was strongly opposed to such measures, and who was abundantly capable of judging of their expediency and probable effect.

Your friend and servant,

W. H.

BOSTON, April 8, 1848.

To William Hayden, Esq., Member of the House of Representa

tives of Massachusetts:

DEAR SIR: You are no stranger to the fact that I have long regarded, with deep interest, the temperance movement in this state. I admit that it has occasioned the most salutary reform in the moral habits of society that the world has ever witnessed; and I have contributed to its progress by all the means in my power, so

long as it was confined to its legitimate object. This, in fact, ought to be considered simply as a "call to the unconverted," in view of fixing the attention of the individual upon the unsuspected dangers of his own habits, and of displaying the insidious and ruinous temptation to which he is exposed, by precept and example. But I am nearly discouraged in perceiving that the leaders of this reform-yeilding to the propensity of all reformers, except His who "left an example that we should follow his steps"-have adopted a system of coercion instead of persuasion, and attempt to compel the consciences of men by stretching the laws beyond the stringency of the old blue laws of our forefathers. This I lament, not merely because it is wrong in itself, but because it inevitably leads to a reaction that will leave matters worse than they were before the temperance flag was unfurled.

Laws wich stigmatize lawful or innocent actions with the brand of crime, which multiply penalties, which require for their enforcement the base auxiliaries of spies and informers, which encourage confederates for the sake of procuring witnesses, which lumber the tables of grand juries with indictments; which, in a word, are against the grain of great masses of the people-are proverbially curses instead of blessings, and will not be endured by a free people. Of this description were the laws of France, prohibiting the citizens from eating and drinking when and where they pleased. These have subverted the throne and shaken the foundations of the state. The consequences here may not be quite as serious, but the cases are analagous. They will provoke the same feelings and the same resistance, in kind, though not in degree.

The extreme right will be supplanted by the extreme left; the teetotallers by the wine-bibbers; the saints by the publicans and sinners; and all restraints upon the traffic in spirituous liquors will be swept away. Men will not, in this age, submit to be scolded, reviled, or whipped into the observance of sumptuary laws. They will sooner break their chains than permit others to break their glasses. The "padlock" of the reformer should be placed on the "mind" of the purchaser, and not upon the door of the vender. This is manifest to all who open their eyes to the signs of the times. In the state of New York the fever of reform, caught here, prevailed in all quarters, and legislation was busy in preventing licensed houses. But the last year the Legislature, after great deliberation and satisfactory experience of the mistake of their predecessors, repealed their act. In Vermont it is stated that the people, by an immense majority of three thousand, declared against the license system. This year, that majority is said to be reduced to one-third. In our state, it is not to be doubted that opposition to the system has increased and is increasing.

Many are restrained from open hostility by reluctance to be classed with the intemperate, many by hypocrisy, many by a

nervous temperament, the fear of calumny and hard names. Meanwhile a strong sympathy is created with those who, having been bred to a vocation which the laws allowed, and embarked their capital in it, are threatened with deprivation of their means of subsistence, and denounced as bad members of society. All these are brooding over their discontent, and preparing, some of them unconsciously, to combine with any party in putting down those who deny them the exercise of the most natural of rightsof appeasing thirst by the choice of their own potations-and who, by forcing all to drink water, would prevent many from gaining their bread.

It is the undisguised object of the prominent reformers to procure the enactment of such new laws, or to countenance such construction of the old laws as will, in effect, amount to a total prohibition of the sale of spirituous liquors, and of consequence to prevent their consumption-at least, to confine it to a privileged aristocracy of those who can afford to buy and "drink a hogshead out. This object is, in other words, to regulate the diet of the people by investing a majority with the power to control the economy of private families through the aid of the legislative or municipal authorities, or a concurrence of both. A claim so extravagant, oppressive, and in fact absurd, cannot have been viewed in its true light by many worthy persons whose zeal is the cause of, and may be the excuse for overlooking first principles, and unwarily adopting the doctrine that the end justifies the means.

If prior to the reform movement, the question had been propounded to these worthy persons-Does it consist with the nature of the social compact, that one portion of the community should prescribe to another what they shall eat or what they shall drink, either by legislative acts, indignation meetings, brow beating, maledictions, or otherwise? they would have laughed the notion to scorn. But there is no monster of "mien so hideous" that will not appear an angel of light when robed like the "veiled prophet." The maxim that the majority must govern, is the veil thrown over this monstrous claim-a maxim of universal application to the political relations of a free people, but of very limited application to their social condition. Certainly it can not with justice be made to bear upon the actions of families or individuals, except so far as they are criminal in themselves or affect directly the public health, peace, or morals.

To transgress this limit, is to go to sea without chart or compass. No principle can be suggested, which discriminates the right to control a man's potations, and not his food. For the above objects of public policy, and for none other, the sale of spirituous liquors may be limited to particular locations, and confined to men of approved character; so may the sale of beef and mutton. Grog shops are not more lawfully under the control of legislation than shambles. Both may be regulated, with a bona fide view to the prevention

of nuisances. Neither can be rightfully prohibited; and laws which, under the pretext of regulation, aim at total suppression, are legislative evasions; in homely phrase, "Yankee tricks,' "whipping the devil round the stump," and quite below the dignity of our political fathers.

Another view of the subject. The best definition of liberty, perhaps, is the facility of doing what the laws permit; and the most wretched condition of slavery is, proverbially, that in which the laws are uncertain, or unknown. They are both, when made to conflict with each other. The laws of the United States admit the importation of spirituous liquors, and raise revenue from it. This inevitably involves the right to sell the imported article, in virtue of the supreme law of the land, subject only to laws of the states made for regulation of their domestic police. This power to regulate is partial, and must be consistent with the paramount general power to import and sell. It is an exception which should be so construed as to stand with the rule. But to convert the exception into the rule, is to bring the law of the state into conflict with the supreme laws of the Union. Thus, while these supreme laws permit a particular traffic, and the United States participate in its profit by filling their treasury, the laws of an inferior jurisdiction, according to modern construction, condemn the traffic, and doom its agents to fine and impri

sonment.

This construction of the state law by the municipal authorities -reposing upon legislative countenance-whereby they assume to withhold all licenses, and thus substantially interdict all sales, and all consumption, at their discretion, is a huge pretension, at variance with the uniform procedure of our ancestors, ever since the first settlement of the country. It is not less repugnant to the principles of a free government, whose laws should be equally applicable to all the citizens, irrespective of their habitancy. But as the license laws are administered-with the countenance of the Legislature-the citizens of one town are subject to one law, and the citizens of an adjacent town to another. In one they may sell with impunity, in the other, they may be sent to the House of Correction. All are liable to annual vicissitudes and changes of position, from the grog shop to the prison, and back again, at the will or whim of a bare majority of aldermen or commisioners, which may chance to be of the teetotal or free trade school, or one of whom may happen to be absent when the question, "to drink, or not to drink," is taken, after argument by counsel learned in the law. Thus it may happen that the unlicensed seller in Boston may be this year doomed to the House of Correction, and before his term of confinement expires, forty others may be pursuing the same trade under licenses from another Board of Aldermen. Again, the Supreme Court, sitting in Middlesex, may confirm a judgment rendered in Suffolk against a seller of wine, and while he is suffering in prison, may order

their own wine from a licensed retailer, without any violation of law or decorum. Thus the character of crime is to depend on the demarkation of town lines. These incongruities ought to suffice to demonstrate this arrogation of power to be a flagrant usurpation. If the Legislature can not, by its own act, stop all sales, inuch less can it invest the municipal government with any such powers. The right to interdict a trade, if it existed in the Legislature, must be a unit, and unalienable. All that can be delegated is, not the power itself, but the authority to execute the statute. The law decides that licenses may be granted by subordinate authorities. All laws are intended to have effect; but this object is frustrated when those who are intrusted with their execution refuse to act. They, in such cases, become legislators and repealers. They resolve that licenses may not be granted; and, when such refusal becomes universal, which it is the object of some legislators to make it, the law itself becomes a dead letter on the statute book.

The true and manly course, for the advocates of these anomalies, would be to move, in plain terms, for a prohibition to drink wine or spirits, and to enforce penalties against the drinkers, who are the parties at fault. There is certainly nothing wrong, in itself, in the sale of spirits. The mere sale of a bottle of wine is not, intrinsically, worse than the sale of a Bible. There is nothing good or bad in either act. The whole fault consists in the drinking. If this is wrong in a citizen of Massachusetts, it must be equally so in those who come within our. jurisdiction from other states and countries. It would be fair, however, to warn these against coming hither, to banquets or other symposia. They might otherwise be misled; as in the public papers a few month since, Judge Story's wine was advertised for sale, as having been especially imported for the use of the Judges of the Supreme Court of the United States: and, in the same papers, was to be seen a notice of the lectures of Mr. Gough, the reformed drunkard.

It seems that a bill has lately been reported to the House of Representatives, imposing prohibitions upon the sale of spirituous liquors, but excepting from its penalties sales for sacramental purposes. This presents an effort to blend and reconcile a divine injunction with a secular prohibition, that would seem to be of a revolting and irreverent character to those who do not justly appreciate the good intentions of its movers. It conclusively implies that our blessed Savior, in His last mournful and heartbreaking interview with His disciples, consecrated by His example and command, a libation proper to be used always in celebration of His memory, but deserving to be eschewed on other occasions, as a curse and poison to mankind. And can it be imagin ed that when in connexion with this sublime solemnity, He declares" I will not drink henceforth of this fruit of the vine, until that day when I drink it new with you in My Father's king