T IS the nature of the people, says Montesquieu, to be moved by passion. To arouse and inflame the people has ever been one great object of all temperance agitators. Their ability and their success have been measured by the number of people whose passions are moved. If the drink reformers had to depend entirely on fair play, truth, and justice in other words, if they had to rely rigidly on the rule of reason-there would not be one half of the anti-liquor legislation there is to-day on our statute books and in our court reports.

The decision by the United States Supreme Court of the License Cases in 1847 was anxiously awaited and was received, as a prominent temperance worker and writer tells us, with great rejoicing. In many cities it was celebrated by large public meetings. The dicta in these cases were just what the orators on the platform and preachers in the pulpit wanted for stirring up the people to a still higher pitch of enthusiasm and excitement.

"Here is what the Supreme Court of the United States says about the rum business!" exclaimed one speaker. "Listen now to what Judge Taney says,' shouted another platform orator, who

1 The Spirit of Laws, bk. II. chap. 2. 2 Dorchester, Liquor Problem in All Ages, p. 293.

3 A flagrant instance (which appeared while this article was being written) may be found in the North Carolina case of State v. Cardwell, 166 N. C. 309, 81 S. E. 628. In the opinion of the court by Allen, J., it is distinctly stated that "the Webb-Kenyon law is not remotely involved in this case, and we

proceeded to quote the words and sentences which suit his purpose.

This deceptive use of the personal opinions of a judge, which may be false or misleading, imposes upon most people, for they assume that everything in a decision of the Federal or State Supreme Court is law. They do not or cannot understand that no obiter dictum put forth on a collateral issue has any binding force. Of course, only the ratio decidendi can be quoted as authority. The deliberate manufacture of antiliquor dicta for moral and political effect has become in many cases an abuse of the judicial position.

Prohibition Craze of 1850-55.

The anti-drink propaganda by 1850 had been gathering force for more than twenty years. All this time the reformers were boldly pressing for more and more drastic anti-liquor legislation. In order to avoid their duty and shift the responsibility, the legislators in a number of states had devised and adopted the plan of having the electors of a town or locality vote whether there should be license or no-license for the sale of liquors in their community. Thus started what are known as "local-option laws."

In 1846 the Maine legislation yielded to the demands of the agitators led by Neal Dow, who in that year traveled over 4,000 miles in the state and had setherefore refrain from discussing it." However, Clark, Ch. J., in a concurring opinion enters into a discussion of the Webb-Kenyon law, and adopts the arguments and almost the very language of the agitators for that law. More than that, he inserts a map of so-called "wet" and "dry" states which is used to advertise a certain kind of anti-liquor propaganda. I refuse to make any further comment.

cured 40,000 names to a petition, and passed a near-prohibition law. In 1849 the legislature passed a bill to strengthen this law, but it was vetoed by Governor Dana; in 1850 a similar bill was lost by a tie vote in the Senate. Finally, in 1851, a bill was introduced two days before the close of the session and on the last day, the Maine legislature hurriedly passed the first state-wide prohibition liquor law.

no

The reasons for rushing through this bill for moral reform were purely political. Temperance legislation was longer a moral question. It was now a partisan and political issue. From this time on prohibition has been a football not only in the politics of Maine, but of all the other states.5

The passage of the Maine liquor law, as it was commonly called, started the race for similar legislation in other states. Or, as McMaster says, "A craze for temperance swept the country from Maine to Minnesota." It was more than a craze. It was an outbreak of lawlessness. It is responsible for some of our lawless jurisprudence. For in order to sustain prohibitory legislation, our courts have had to overturn common-law doctrines, juristic premises, and fundamental principles of personal and property rights, all of which form the best part of our legal tradition and inheritance.

The Maine law provided, among other things, (1) for the establishment of an agency, the officer in charge to be appointed by the governor, for the sale

4 Acts and Resolves of Maine, August 1846, chap. 205.

5 See Cyc. of Temperance, art. Republican Party, in which the writer exposes the political game as follows: "The appearance of the Republican party in Maine revolutionized the politics of that state. It had formerly been reliably Democratic. The advocacy of rum by a large section of the Democratic party was responsible for its loss of power there. The championship of the two causes of antislavery and prohibition established the supremacy of the Republican party in Maine." Neal Dow in his "Reminiscences" (pp. 335338) explains how he worked leaders in both political parties to support his prohibitory bill. 6 McMaster, Hist. of the People of the U. S. vol. VIII. p. 127.

7 Winning_the Fight against Drink, by E. L. Eaton, DD. p. 317, who says: "There were sermons, prayers, songs, pledge-signing,

of liquors for medicinal, mechanical, and other manufacturing purposes. This agency furnished the town officers or corporation with liquor for such uses; but the sale of intoxicating liquor was prohibited to all other persons, under fine and imprisonment; (2) if three voters complained under oath that they believed liquors were kept and intended for sale by any person not authorized, the justice of peace, or judge of a municipal or police court, must issue a search warrant, and the constable or sheriff must search the store, shop, warehouse, or building, and, if liquor were found, seize and destroy it, but no dwelling could be searched unless liquor had been sold therein. This started the search and seizure provisions of prohibitory laws, which, in many cases, have been outrageous and oppressive in a free country.

The story of this first "craze" for temperance legislation, which is full of dramatic interest, need not be repeated here. Suffice it to say, the legislators in different states were begged, badgered, and even bullied by the temperance reformers, men and women, who were in deadly earnest." Spectacular methods, which were then new but now commonplace, were employed with more or less result.

The fight for more anti-liquor legislation in New York state was carried on continuously from 1846 to 1856. In May of the former year a special election on license or no-license was held in every town and city under a local-option law. A bill framed on the Maine model failed speechmaking, exhortations, and personal appeals. Legislatures were packed with prohibition members. Prohibition votes were cast by an aroused church, and prohibition laws were enacted by men who both prayed and voted for prohibition."

8 Dorchester, the Liquor Problem, p. 298, tells of a big mass meeting at the Tremont Temple, in Boston, Massachusetts, on January 5, 1852. The Rev. Lyman Beecher, who was made chairman, was drawn in a double sleigh to the State House, followed by a procession, under escort of police and a band of music. The legislative committee was addressed by Neal Dow, John Pierpont, and others. The Massachusetts legislature passed a prohibition law at that session.

For an account of a similar demonstration, to impress the New York legislators, a few weeks later on January 28, 1852, at Albany, New York, see the Rev. John Marsh's "Temperance Recollections," p. 256.

to pass in 1852. The New York legislature passed a prohibitory measure in 1853, but it was vetoed by Governor Seymour. At the election in 1854, with four candidates in the field, Myron H. Clark, who ran as a Whig, Free Democrat, Republican, and Prohibitionist, won by the narrow majority of 309.9 The legislature of 1855 promptly proceeded to pass a prohibitory bill, and Governor Clark signed it. The act was declared unconstitutional the next year (1856) by the New York Court of Appeals.10

During this craze from 1851 to 1856 state after state went into the prohibition rank. Here is the record of 17 states. Prohibitory acts were passed in Maine and Ohio in 1851; in Massachusetts, Minnesota, Rhode Island, and Vermont in 1852; in Indiana, Michigan, and Wisconsin in 1853; in Connecticut in 1854; in Delaware, Illinois, Iowa, Nebraska, New Hampshire, New York, and Washington in 1855.11

During the same period new antiliquor or near-prohibitory legislation was passed in the following 8 states: in Missouri in 1851; in Georgia in 1853; in Arkansas, Maryland, Mississippi, and Texas in 1854; in California in 1855; in North Carolina in 1856.12

Here, briefly, is what happened to prohibition in the 17 states above named:

Maine, prohibition law repealed in 1856; re-enacted in 1858.

Ohio, annulled by the license tax laws of 1854.

Massachusetts, repealed in 1868; prohibition re-enacted in 1869; repealed in 1875.

Minnesota, superseded by license law in

1858.

Rhode Island, license law substituted in 1863; repealed in 1874; license clauses re

9 The vote was Clark, 156,804; Seymour, 156,495; Ulman (Know Nothing) 122,282; Bronson (Hardshell Democrat) 35,850. The last three candidates were all opposed to prohibition.

10 Wynehamer v. People, 13 N. Y. 378.

11 Acts and Resolves of Maine, 1851-Ohio, § 18 of the schedule-Mass. Acts and Resolves, 1852, chap. 322-Minn. Gen. Laws, 1852, chap. 8-R. I. Acts and Resolves, 1852, p. 3-Vt. Public Act 1852, No. 24-Ind. Laws 1853, chap. 66-Mich. Laws, 1853, No. 66Wis. Gen. Act 1853, chap. 101-Conn. Laws, 1854, chap. 57-Del. Laws, 1855, chap. 255Ill. Laws, Act of Feb. 12, 1855-Iowa Laws, 1855, chap. 45—Neb. Laws of 1855, p. 158—

adopted in 1875 and 1881; prohibitory amendment re-enacted in 1886; repealed in 1889. Vermont, amended in 1886 and 1888, repealed in 1903.

Indiana, declared unconstitutional; repealed in 1858.

Michigan, court divided on submission clause; prohibitory law repealed in 1875.

Wisconsin, prohibitory measure submitted to people in 1853; passed by legislature in 1855, vetoed by the governor.

Connecticut, repealed in 1872.
Delaware, repealed in 1857.
Illinois, repealed in 1853.

Iowa, submission clause unconstitutional; repealed by laws of 1856 and 1857; readopted 1882-84, annulled by mulct law in 1893.

Nebraska, repealed by act of 1858.

New Hampshire, superseded by license laws of 1878, 1881, and 1887; repealed in 1903.

New York, prohibition act declared unconstitutional in 1856.

Washington, repealed by acts of 1857, 1859, and 1871.13

Thus, of the 17 original prohibition states only one (Maine) now has the law. But prohibition in Maine had a narrow escape in the year 1911, when the question was resubmitted to the electorate. With the support of the dominant political party; with all the strenuous efforts of enthusiastic temperance folk, together with an army of spell-binders and paid workers; with the open and secret support of those liquor dealers and others, who prefer an irregular business under nominal prohibition to a regulated trade under license-with all these factors on its side, prohibition was again fastened upon the people of Maine by only 758 votes out of a total vote of 120,948. Surely such a vote must be considered as a virtual repudiation of prohibition, which had been part of the organic law of Maine continuously from 1858 to 1911, or a period of 53 years.

N. H. Acts of 1855, chap. 1658-N. Y. Laws, 1855, chap. 251-Wash. Laws, 1855, p. 30.

12 Mo. Laws, 1851, p. 216–Ga. Laws, 1853, Nos. 73, 75, and 167-Ark. Acts 1854, p. 148 -Md. Laws, 1854, chap. 283-Miss. Laws of 1854, chap. 42-Tex. Laws, 1854, chap. 88Cal. Laws of 1855, chap. 187, authorized the submission of a law, "the provisions of which shall prohibit the manufacture and sale of all spirituous and intoxicating liquors, except for mechanical, chemical, medicinal, and sacramental purposes," but nothing further was done-N. C. Laws, 1856, chap. 34.

13 A mere list of the changes, amendments, and repeals of the liquor laws of the various states from 1850 down to 1916 would fill several pages of this magazine.

Only two of the states, Rhode Island and Massachusetts, adopted prohibition a second time after once trying it, and then they returned to license. It is sigIt is significant that the succeeding crazes which have swept over the country take in states that had never tried state-wide prohibition.

Prohibition and Lawlessness.

The fight for prohibitory legislation brings out all the well-known elements of lawlessness. It could not be otherwise. Lawlessness is none the less dangerous because it is incited by honest and wellmeaning persons, and because it is promoted under the plea of public good. Greek tyrants, medieval princes, modern kings, religious inquisitors and persecutors, Jacobins in the French assembly, tyrannical majorities, and prohibitionists, all alike make this same plea of public welfare to excuse their lawless acts against the personal and property rights of the citizen.

What is public welfare? The prohibitionist assumes to know what public welfare is, and how it is obtained; but the courts have not attempted to define with precision the words "public welfare." They could not do so if they would; for any legal definition of public welfare made one year would not hold good another year.

Some prohibition advocates, who know law, often quote from the preamble of the Federal Constitution the phrase, "promote the general welfare," in support of an alleged power to violate personal liberty and to confiscate property for public use and good without due compensation, or without due process of law. They ignore, intentionally or otherwise, the other declarations in the

14 See article by J. Hipp in 20 Case & Com. p. 452, and letter by J. P. Lee in 21 Case & Com. p. 578.

15 197 U. S. 22, 49 L. ed. 648, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765.

16 See Cyc. Temp. & Proh. art. “Personal Liberty," in which personal liberty maintained by the opponents of prohibition is said to be "the liberty of the barbarian, the thug, the robber." In Eaton's "Winning the Fight against Drink" (a book indorsed as authority by the general secretary of the temperance society) the author bluntly says: "Personal liberty is

Now, the prohibitionist's part in lawlessness is twofold: First, in his disregard for the basic rules of conduct and for the rights of his fellow citizens; secondly, as a promoter of lawlessness. He has a profound misconception of his legal rights and duties. To him the promotion of prohibition, not justice, is the object of law. Our hard-won personal rights, which are the dearest possession of every American citizen, become irritating and offensive to the thorough-going prohibitionist who is satisfied that "personal liberty" is a delusion and a snare.18 man who feels no sense of duty towards other citizens, but only an obligation to further his own ends, will not hesitate to attack and destroy their personal and property rights,—that is, if law did not stop him.16a

The

Like so many other radical reformers, the prohibitionist has a deep and instinctive dislike for law when it stands in the way of putting his theories and his remedies into practice.17 That explains why

one of those catchy but meaningless phrases There is no such thing in the world." (p. 249.)

16a Law, as Professor Sheldon Amos well says, warns transgressors of their legal as well as of their moral duties. He adds, nor is it only against the violent and bad that security for freedom is needed, but likewise against the well-intentioned and conscientious-Amos, Science of Law, p. 45.

17 Sir Frederick Pollock has pointed out that "much more subtle, and more dangerous because mixed with worthier motives than

constitutional safeguards around personal freedom and property rights have never been considered binding by the prohibitionist; it explains why he is always trying to get around or to break down those safeguards. Constitutional limitations never have bound the prohibitionist; they never will bind him until he changes his psychology and his lawless methods.

The lawless character of prohibitory liquor legislation is found in the open and secret violations which breed disregard and contempt for law. It is seen in the mob spirit which is raised.

When the Maine liquor law 1851 went into effect and was put in force in the city of Portland, the militia, which had to be called out, fired on the mob, killing one man and wounding several others.18

McMaster in his history records a number of instances of disorder and violence in the new prohibition states. Thus, in Massachusetts there was open defiance of the liquor law in Boston, Salem, Newton, Watertown, and Worcester. At Newport, Rhode Island, the town meeting showed its contempt for the new law by appointing as a common informer a man who was nearly blind. In New York temperance reformers were insulted and attacked. At St. Paul, Minnesota, the sheriff and his posse, after seizing some liquors, were mobbed.19

In 1875, after the prohibitory acts had been tried for twenty years, Dr. W. B. Weedon, who made a fair and careful study of the results, said:

"Our prohibitory statute makers, working on a benevolent motive, have debauched politicians, corrupted legislatures, and soiled the processes of courts in the administration of these laws. This is disorder, and society should be in itself the highest order." 20

In 1897 the legislative subcommittee of the celebrated Committee of Fifty for merely personal interest, is the dissatisfaction of such men as mislike law when legal justice withstands the demands of their trade or their class."-Genius of the Com. Law, p. 47.

18 Cyc. of Temperance, art. Lawlessness, in which Neal Dow, then mayor of Portland, is quoted as saying that "some of the most prominent men in Portland were behind this mob, instigating it to violence and outrage." 19 McMaster, Hist. of U. S. vol. viii., pp. 128-131.

the investigation of the liquor question, in its report over the signatures of President Charles W. Eliot, of Harvard, President Seth Low, of Columbia, and Honorable James C. Carter, a leader of the New York bar, drew up this indict

ment:

"The public have seen the law defied, a whole generation of habitual lawbreakers schooled in evasion and shamelessness, courts ineffective through fluctuations of policy, delays, perjuries, negligences, and other miscarriages of justice, officers of the law doublefaced and mercenary, legislators timid and insincere, candidates for office hypocritical and truckling, and office holders unfaithful to pledges and to reasonable public expectation." 21

In 1914, in an able article, Mr. John Koren, who investigated the economic aspects of the liquor problem for the Committee of Fifty, and a man who has studied the subject for the past twenty-five years, bluntly says:

sue.

"The radical defect of the prohibitionist movement as at present engineered is the devious political methods employed. There is a sordid trading for votes to carry a moral isThe barter of conviction for place or favor belongs to the shadow side of popular government. Yet it is deliberately fostered by persons who undertake to speak in the name of lofty morality, for the history of recent prohibition contests fairly reeks of a method of bidding for votes that in its essence is just as reprehensible as a money bribe." 22

Thus from the first prohibitory liquor law in 1851 in Maine down to the present year of 1916-a period of sixty-five years-prohibition in the United States presents a shameful record of the worst forms of lawlessness-riots and mobs and murders. It is doubtful if any one kind of legislation can be named that has left during the same period such a trail of evils as have our prohibitory laws.22

It is a mistake to allege-as many lay20 Weedon, Morality of Prohibitory Liquor Laws, p. 20.

21 The Liquor Problem in Its Legislative Aspects, Summary by Charles W. Eliot, p. 51. 22 Koren in Nat. Municipal Review for July, 1914. Cf. also Koren's art. "Government and Prohibition" in Atlantic Monthly for April, 1916.

22a As I am here concerned with the purely legal points and issues involved in prohibitory liquor legislation, I need only refer to the great