Изображения страниц
PDF
EPUB

ple who consume. You will have preserved your own dignity, undertaken your own duties, and recognized their rights. With all the methods and forces of the present laws, and of the existing decisions, at your command for the punishment of those who sell without license, or in breach of one, you will stand in a position a hundred-fold stronger than you do to-day, or than you ever stood before. Recognizing the retail trade in liquors as having an exceptional side, and therefore requiring a certain police supervision which every town may not desire to undertake, we do not ask it to be forced upon any town against its will. While the means of purchase for certain uses are furnished through the agency, and while the competition of other towns exists, and the power to institute the same competition exists there also, a given town may prefer to exclude it. The fatal monopoly I have described will then be impossible; and the right of the citizen will be preserved to buy somewhere in the Commonwealth those things he needs, in his own judgment, for his family and for himself.

It is puerile to inveigh against this plan, as making the "criminal laws of the Commonwealth" subject to municipal interference. That is substituting an

adjective for an argument.

These laws are only

"criminal" because they are made so, or called so. They are properly police regulations (often essentially municipal,) concerning the distribution of certain articles of merchandise, universally admitted to have their proper uses, needful to be bought and sold, but liable to abuse. One breaking those regulations is liable to indictment or complaint. In that sense, they are criminal laws. But, there always have been other laws, the violation of which subjects one to criminal procedure, as for misdemeanor, just as these do, which are subordinated to municipal administration, and which even owe their very being to the will of the respective cities and towns.

But, do you profess that these prohibitory laws were enacted in the exercise of your best discretion; and that in your judgment the case for a change has not been made out? I then beg to meet that position by the counter position taken by some of the ablest and wisest men in Massachusetts, in testimony before this Committee, denying the right of government thus to pass into the domestic and private sphere.

If there is a man born to speak the English tongue, who combines high integrity, great attainments, practical wisdom and theoretical statesmanship, with faith in, and devotion to, free government, and the elevation of the humble, that man-one of the truest friends of

America in the Old World-is John Stuart Mill. And thus he wrote:

"There are in our own day, gross usurpations upon the liberty of private life actually practised, and still greater ones threatened, with some expectation of 'success; and opinions proposed which assert an unlimited right in the public not only to prohibit by law everything which it thinks wrong, but in order to get at what it thinks wrong, to prohibit any number of things which it admits to be innocent.

"Under the name of preventing intemperance, the people ⚫of one English colony, and of nearly half the United States, have been interdicted by law from making any use whatever of fermented drinks, except for medical purposes; for prohibition of their sale is in fact, as it is intended to be, prohibition of their use. The infringement com

[ocr errors]

plained of is not on the liberty of the seller, but on that of the buyer and consumer; since the State might just as well forbid him to drink wine, as purposely make it impossible for him to obtain it. The secretary, however, [of the English "Alliance"] says, 'I claim, as a citizen, a right to legislate whenever my social rights are invaded by the social act of another.' And now for the definition of these social rights.' 'If anything invades my social rights, certainly the traffic in strong drink does. It destroys my primary right of security, by constantly creating and stimulating social disorder. It invades my right of equality, by deriving a profit from the creation of a misery I am taxed to support. It impedes my right to free moral and intellectual development, by surrounding my path with dangers, and by weakening and demoralizing society, from which I have a right to claim mutual aid and intercourse.' A theory of 'social

rights,' the like of which probably never before found its way into distinct language, being nothing short of this, that it is the absolute social right of every individual that every other individual shall act in every respect exactly as he ought; that whosoever fails thereof in the smallest particular, violates my social right, and entitles me to demand from the legislature the removal of the grievance. So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify; it acknowledges no right to any freedom whatever except perhaps to that of holding opinions in secret, without ever disclosing them."*

I appeal also to William von Humboldt, the friend of Schiller and of Goethe, a statesman, a scholar, an ambassador of Prussia, a minister of State, who re-organized public instruction and gave to the Prussian system much of the eminence it enjoys, whose forecast attempted to consolidate Germany against the first Napoleon, as Bismarck has, more than a half century later, consolidated it against Napoleon III., and of whom it was said by Talleyrand, that there were not three men in Europe of his ability:

"The State may content itself with exercising the most watchful vigilance on every unlawful project, and defeating it before it has been put into execution: or, advancing further, it may prohibit actions which are harmless in themselves, but which tempt to the commission of crime, or

*Mill on Liberty, pp. 170-73.

afford opportunities for resolving upon criminal actions. This latter policy, again, tends to encroach on the liberty of the citizens; manifests a distrust on the part of the State which not only operates hurtfully on the character of the citizens, but goes to defeat the very end in view. *** All that the State may do, without frustrating its own end, and without encroaching on the freedom of its citizens, is, therefore, restricted to the former course; that is, the strictest surveillance of every trangression of the law, either already committed or only resolved on; and as this cannot properly be called preventing the causes of crime, I think I may safely assert that this prevention of criminal actions is wholly foreign to the State's proper sphere of activity.*

One of the latest and best expositions of the "Rationale of Government and Legislation" is found in a recent volume bearing that title, by Lord Wrottesley, in which, without pretension to novelty of reasoning, (which would, perhaps, be a demerit,) he has presented the results arrived at by the best modern writers on the philosophy of government.

The following propositions so clearly express the conclusions of reason and experience, that I am prepared to adopt and to proclaim them as the voice of authority.

"First. Laws should never be passed which either cannot be executed, or of which the execution is so difficult

*Sphere and Duties of Government, (W. v. Humboldt,) p. 171.

« ПредыдущаяПродолжить »