Nathaniel Hillyer. Egleston.

The North American review (Volume 139) online

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ance, the Doctor said that he thought the city was in a bad way ; that it was
under the rule of rum, and that the marshal's order to the effect that the law
against liquor selling should be executed on Sundays and after ten o'clock at
night on other days, was virtually saying that the law might be violated with
impunity at other times. It seemed to him that arrests for violation of the law
had well-nigh ceased to be made by the police, and that the men whose busi
ness it was to make drunkards, heart-broken women, and orphan children
were to be allowed to ply their work of death without anything to make them
afraid. He asked, when drunkards were reeling through our streets, and
intemperance swept the city, if the church should be silent? Shall we
look on and see venders of alcohol and those who abet the perpetrators
of this infamy continue in their course without rebuke ? What is the good
of a church if it can do nothing to arrest such a terrible evil to society as
drunkenness. If we do not try, let us cease mocking God by our religious
professions, and calling upon Him for a reviving spirit. The remarks of Dr.
McKeown have caused a profound sensation."

I have just been shown the " New York Tribune " of March
24th. In it John T. Vine, of Sanford, Me., says :

"The Hon. Thomas W. Pitman, of New York, has created a sensation
in this section of Maine by his series of lectures on intemperance and crime,
and has given some startling statistics. In Portland, last year, there were
2250 arrests, 1424 being for drunkenness and drunken brawls. Mr. Pit
man exposed the private-club system of Portland, Bangor, and other large
towns in the State, and showed how easily liquor can be procured, both
privately and publicly, in all large towns, and demonstrated that prohibi
tion does not prohibit unless sustained by an emphatic public sentiment.
His statements relative to the violation of the Maine law and the increase of
drunkenness in the State, have created profound uneasiness among prohibi

I have seen scores of such statements from Maine. It has
been repeatedly claimed that the rum traffic was practically
dead in that State. I went to examine j I could find no open*


grog-shops, but found many proofs that the drink curse in
that State was enormous. I became satisfied that as tempta
tions, the private drinking-clubs and other means of obtaining
liquor in Maine are more fascinating and mischievous than open

The struggle over the drink curse goes forward with our
civilization. To-day soldiers in the temperance army hurl bil
lingsgate at each other. While refusing to join in this fratri
cidal bitterness, I venture the opinion, after forty years' service,
that our enemy can be conquered only by social and moral
weapons j that to call attention away from these agencies and
fix it upon the constable is a fatal blunder.

In the struggle with intemperance, we find on one side intelli
gence, virtue, and hope ; on the other, cunning, vice, and despair.
Good men cannot hesitate. The only doubt lies in a choice
of weapons. "Washingtonianism, the Woman's Crusade, and
other social, moral, and religious movements command our
united approval ; but some of us hesitate to summon physical
force. Some of us believe that its employment is suicidal.
It is the aim of civilization, through moral agencies, to elimi
nate vices, as it is its duty, with physical force, to punish
crimes. With schools, social attractions, and religious appeals
we win the votaries of vice ; with prisons and chains we punish
the perpetrators of crime.

In the discussion of prohibition, the distinction between vice
and crime is pivotal. A vice is a harm I do myself in the pur
suit of pleasure. Gluttony and drunkenness are vices. A crime
is a harm I do to another with malice prepense. Forgery and
murder are crimes.

Although vices do more harm in a day than crimes in a year,
although vices are the parents of crimes, man cannot punish
until the vices take form in actions inspired by malice prepense.
A man may be filled with hypocrisy, envy, hatred, avarice,
gluttony, drunkenness, indolence, and a score of other vices,
but his fellow-man cannot punish him until he is guilty of a
crime. No act, however harmful, can be a crime unless
inspired by a criminal purpose. The intent is the very essence
of a crime. When hate shows itself in a personal assault,
man steps in to punish. But the hate, which is the tap-root
of the crime, man cannot punish. As malice prepense can
never exist in a vice, so a vice can never be a crime. Through


gluttony and other vices thousands contract disease, and impose
the care of themselves and their families upon their neighbors.
The children of these vicious persons might have become intelli
gent and useful ; in the poor-house they are trained to pauperism.
The wrong is grave ; its influence may continue for generations ;
but there is nothing of crime in it. When I strike a person,
though the blow be so slight as not to shake the dust from his
coat, I am guilty of crime, and may be justly punished. I have
done little harm, but I have perpetrated a crime for which I may
be imprisoned. One may mention a score of vices which seri
ously cripple the race j not one of them can be justly punished
by force. Crimes play but a small part in demoralizing the
race. Gluttony injures the race more in a day than forgery in a
century j yet gluttony cannot be punished by law, while forgery,
even though no harm results, may be punished. Legislation
that ignores this distinction between vice and crime must
prove a muddle and a failure. We have made many laws
against vices, prescribing severe penalties. We have repealed
all of these laws or allowed them to die and be forgotten, but
no legislature has ever repealed a law against crime.

We are all the victims of vices. The average man is older at
fifty than he should be at seventy. This crippled condition
comes of vices. The margin left for high purpose and achieve
ment is pitifully small. This wretched slavery consumes nearly
all the fine forces of our being, and is the one great waste of
human life. If there were no other reason why we cannot
punish vices by law, it is sufficient that we are all the victims of

Law is a science, and its expounders have been the greatest
men of our race. As in other forms of science, outlying regions
may be in doubt, but the central principles are as clear and
fixed as gravitation. The distinction between vice and crime
is fundamental ; it is the distinction of the dictionaries, the
courts of law, and common sense.

Every man knows that he has a right to eat and drink, dress
and exercise as he pleases. I do not mean moral right, but legal
right. This distinction between moral and legal right, which
is the counterpart of the other between vice and crime, has been
ridiculed by prohibitionists. I would repeat that a man has a
legal right to do a thousand things that are morally wrong. He
has a legal right to doubt the existence of God, or the binding


force of the decalogue ; to believe in free-love and piracy ; to hate
his mother 5 or to be or do numberless things that are morally
wrong. It is only when his belief in piracy or his hatred of
his mother is embodied in criminal action, that he may be pun
ished by law. The Puritan forefathers denied this distinction
between vice and crime, between moral and legal rights ; but
the civilization of to-day finds its highest distinction in the
liberty to be and do whatever we please, until we assault with
criminal purpose, or through criminal carelessness, the right of
other people to be and do what they please.

It will be said that the drunkard's vice outrages the rights of
others. When it can be shown that he is inspired by a criminal
purpose, his action is criminal. As long as his indulgence is in
the pursuit of pleasure, and not instigated by malice prepense,
he is the victim of a vice, and not amenable to civil law.

During a somewhat famous discussion, in which I bore an
humble part, I asked my antagonist to give his conception of
the function of civil law. He replied : " The duty of the Legis
lature is to watch the commonwealth, and when danger from
any source is apprehended, to provide against it by law." "Do
you mean," I asked, "from any source ? " He replied: "It is
the duty of the Legislature to provide against harm to the
people from any and all sources." " Suppose/ 7 1 said, " that the
Legislature should believe that the present methods of cookery
are too appetizing, and lead to excessive indulgence ? Suppose
the Legislature believes that this vice of cookery results in
enormous harm, as it surely does, what would be its duty ? "
u Without doubt," he replied, " to pass stringent laws against
such mischievous cookery." " And send an officer to every sus
pected house ? " I suggested. He replied : " A law without an
officer to enforce it is useless. An officer should visit every
suspected house, and see that the cookery is as the law directs."
" Suppose that the Legislature believes that the corset vice is a
vast evil, as no doubt it is, what is its duty?" " Clearly," he
answered, " to pass a severe law against making or wearing cor
sets." " And," I again suggested, " send an officer to every
suspected house?" There was a shout of laughter ; but my
antagonist, with true courage, replied, " Yes ; an officer should
visit every suspected house, and see that the law is not violated."
>l Your conception of the function of civil law is that the Legis
lature should watch for harm coming from any source, and


provide against it by law. When Universalism first made its
appearance in Massachusetts, the Legislature believed that the
greatest harm that could befall the people was imminent 5 that
to take hell out of religion was to open the flood-gates of every
conceivable vice and crime. What was its duty ? 7? He replied,
" If the Legislature sees being preached in the community any
religion which, in its judgment, is calculated to do harm, like
the rum traffic, it would be its bounden duty to punish severely
the preaching of such religion. " " The dry-goods windows in
this city tempt thousands of women to extravagance. Thus,
many family treasuries are bankrupted. If the Legislature be
lieved this, would you have them pass a law against such attract
ive windows ? n He replied, with characteristic courage, " If I
were a legislator, and believed that these shop- windows tempted
to mischievous extravagance, I would close them.' 7

It became clear, even to the most ardent advocates of prohi
bition, that my antagonist's statement that " the function of the
Legislature is to watch the commonwealth, and when danger
from any source is apprehended, to provide against it by law,' 7
was an error. It was clear to my own mind before we began,
that the real sources of nine-tenths of our ignorance, bad health,
bad morals, and crimes' are as far beyond the reach of the con
stable as are our thoughts or our dreams.

A prohibitionist with whom I had a discussion some years
ago rested the case upon the statement that " the public good is
the only object and limit of the law-making power. 77 In this
matter of human rights, there is, strictly speaking, no such
creature as the public. Those who talk so flippantly of the
"rights of society " may be asked to find society. Let them go
down street, turn to the right, to the left, everywhere ; they will
find a man, a woman, a child ; another man, another woman,
another child. Each of these men, each of these women, each of
these children, has rights. This talk of the " rights of society 7?
reminds one of much that is said of corporations. A corpora
tion has no soul. It practices injustice, but no one is to blame ;
it is the corporation. The corporation is composed of persons
whose meanness and cowardice in shifting the responsibility to
the creature they call the corporation are not unlike the attitude
of what is called society as against the individual. The phrase
" the rights of society 77 is a trick of words, which, like " the
rights of a corporation,' 7 is often used to cover injustice.


Another prohibitionist announces as an old maxim that
" the public good is the supreme law." I have never heard of
such a maxim, but I have heard that " the public safety is the
supreme law." The whole difference between the views I am
advocating and the views of the extreme prohibitionist is found
in the difference between " good " and " safety." " The public
safety " is endangered by an armed invasion, by a conflagration
or contagion, and in their presence the rights of individuals
must give way. "The public good "is endangered by false re
ligious and political theories, by errors in dress, sleep, food,
drink, etc. To these nothing but reason and persuasion can be
addressed. If the Central Park reservoir should give way, the
man who saw it might seize his neighbor's horse, and rush down
town, shouting, "The waters are coming $ run for your lives!"
But if a zealous temperance man were to seize a horse and tear
down Broadway, shouting, " Turn out, turn out, for God's sake
turn out ; Jim Biles is selling Pete Smith a glass of whisky ! "
the chances are that instead of the court holding that the
public safety justified the seizure, the temperance man would
have to ask some friend to bail him out.

Instead of its being a maxim that " the public good is the
supreme law," it is one of the wisest sayings, that a wrong done
by the government to the humblest individual that is, a viola
tion of any one's rights of person or property is a wrong
done to the whole people. This is not only true, but vital ;
because if one man's personal rights may be violated with
impunity, the rights of all the people may be violated with
impunity. The greatest " public good " of which a government
is capable, is to secure to each and every individual the
full and free enjoyment of his natural rights of person and

All progress and happiness begin and end in personal liberty.
Prohibitionists say, " We rejoice in the utmost personal liberty
if people will only do right." Our Puritan fathers were stout
advocates of personal liberty. They left their homes, crossed a
stormy ocean, and braved a thousand dangers, that they might
be free to say what they pleased ; and they were willing that all
who came after them should be free to speak, unless the new
men said things conflicting with what the fathers said. Some
times they came across a Quaker, with wrong views, and hung


All men are believers in personal liberty for themselves;
few men are willing to grant liberty to others. Perhaps no
other man believes in personal liberty as intensely as the Czar of
Russia, but it is liberty for himself. Kings and princes cherish
the doctrine of personal liberty for themselves. The aristoc
racies in all lands believe in personal liberty for themselves.
The slaveholders believed in personal liberty more strongly than
any other men on this continent. The whites of California
believe in liberty for themselves. Personal liberty includes
as its subjects all adult, sane, non-criminal persons. A govern
ment which protects only the liberty of the czar, the king, the
aristocrat, the white man, the intelligent man, or the good man,
is not a true government. Eich, strong men can take care of
themselves. The worse the government, the better the chance
for them. It is the glory of a true government that it jealously
guards the rights of the ignorant, the weak, and the vicious,
while it vigorously punishes criminals of all classes. Personal
liberty is the source of all progress, the lever of all conquests,
the inspiration of all achievements, the precious jewel of the
ages. I would rather conduct a temperance movement with ten
reformed drunkards, free to drink at pleasure, than with a hun
dred teetotalers, kept sober by the constable. That kind of tem
perance is strong ; this kind weak ; that kind a living principle ;
this a lifeless submission. Whenever, in our country, personal
liberty is violated, except in the presence of a great and imme
diate danger, the intruder, if a person, is sure to meet rough
treatment j if a law, it is dodged or defied. Some of us think
we were born to control other men. We ask what ought our
neighbors to do j and if they will not do it, how can we compel
them ? Resolved : That the Almighty has given the government
of the world into the hands of His saints. Resolved : That we
are His saints.

But is not the law against the sale of certain poisonous drugs
just ? Is not the law against the sale of gunpowder just ? Is
not the law against obscene literature just ? If these laws are
just, why is not the law against the sale of drink? It does
vastly more harm. What is the basis of the law against the
sale of the dangerous drugs? It is the danger of a fatal
accident. The people do not know, and if they were allowed
unchecked handling a fatal accident might happen. The legis
lature forbids their sale except under the guidance of an expert.


This is wise and just. It is the railing and warning light about
an open sewer ; while the prohibitory law is a fence across a
street, which street runs down to the sea, where, by wading far
out, many persons have been drowned. Such a fence would be
an insult. If there were danger that lager beer might suddenly
kill, then it would be right for the legislature to forbid the sale
of lager beer except under the guidance of an expert.

Patent medicines do more harm in a year than the unre
strained sale of the proscribed drugs would do in a century.
But no sane man would suggest that the sale of patent medi
cines be forbidden. Why not! Simply because there is no
danger of a fatal accident. The people have time to learn and
protect themselves. For a man's neighbors, even if called a
legislature, to say to him, you shall not purchase patent medi
cine, would be an impertinence and an insult.

Prohibitionists are fond of the gunpowder illustration. The
justification, they say, of the gunpowder law is found in the
danger. If the danger justifies the law against gunpowder,
there is infinitely more danger in strong drink. This looks
plausible, but is shallow sophistry. It would be difficult to
imagine any two laws more widely divergent in principle. We
enter a store where the merchant keeps a barrel of gunpowder.
We do not know it, and cannot protect ourselves. By his care
lessness we may be blown into eternity. It is right that the
legislature should protect us against such a catastrophe. We
enter another store, where the merchant keeps a barrel of
whisky. It is the very thing we want. Our legal right to drink
it is absolute. We are legally sane, and choose to drink whisky.
We take the responsibility. We ask for it, drink, pay, and
depart. No man capable of logical thought will find the two

The case of obscene literature seems, at first sight, to be
pertinent. Whoever read the speeches made on the occasion of
the passage by Congress of the law against the circulation of
obscene literature, will recall that it was put on one distinct
ground, the only ground on which it can rest; namely, that
forty-nine-fiftieths of obscene literature is circulated among
children. This is a grave crime, as it is to sell them strong
drink. Some time since, I had occasion, in preparing a volume,
to pick up books on this class of subjects. No man committed
a crime by selling them to me. If this class of literature, like


strong drink, were in great part sold to adults, the only just
law would be one which forbade its sale to children. There are
several laws against the sale of certain things, or classes of
things, which have been brought forward to illustrate prohibi
tion. No one of them is parallel to the prohibitory liquor law.

But may we not suppress a nuisance ? Our right to suppress a
nuisance is as clear as our right to defend ourselves against any
other personal assault. A legal nuisance is any offensive smell,
noise, or sight, or anything which injures health. A loud noise
in a grog-shop, nudity at its windows, or, as the dictionary
phrases it, " any annoyance to the community in general," is a
nuisance, and may be suppressed. But if sane adults com
promise their health, usefulness, and character in a grog-shop,
it does not make the place a legal nuisance any more than would
the fact that its visitors ate too much or improper food, or indulged
in indolence or bad ventilation, or in any other way voluntarily
injured themselves. A moral nuisance is not necessarily a legal
nuisance. Colonel Ingersoll may preach infidelity, and lead a
million young men away from the churches into loose and
infidel ways. This is not a legal nuisance. If you were to bring
an action against him under the nuisance act, you would be
laughed out of court. But if Colonel Ingersoll were to be con
verted to Christianity, and gather a crowd in the public streets
to hear him plead the claims of Christ, such a crowd, if it inter
fered with public traffic, would be a nuisance, and could be
suppressed. If my own beloved clergyman preached so loudly as
to disturb the neighborhood, it is a legal nuisance, and may be
abated. But if the large grog-shop round the corner sells ten
thousand drinks a day, in a " quiet and unobtrusive n manner, to
adult persons, legally sane, it is not a nuisance. The fact that
my minister preaches the most precious truth, while the grog
shop does infinite harm, is not pertinent.

Good people seem to think that bad people have not the
same rights as themselves, and, except as subjects for missionary
work, they are impatient of their presence. A bad man, full of
avarice, bitterness, gluttony, and drink, has the same legal
rights as the best man in the world. When, in the field of
human conduct the law has punished crime, it is done. Public
sentiment, infinitely more potent than civil law, must control in
all other departments of human life. It is maddening to see
people trying to drag into the arena of social, moral, and re-


ligious struggles, civil law, with its " all thumbs/ 7 and neglect
agencies a thousand times stronger. How temperance men, with
their vivid recollections of the all-conquering triumphs of Wash-
ingtonianism and the Woman's Crusade, can turn aside from the
divine agencies which accomplish so much, and call in the con
stable, amazes me.

" But," we are asked, " can nothing be done to protect
women and children from a drunkard's brutalities?" If a
man be the victim of a vice which wrongs his family, the vice
should, and may be removed, but not by law or force. All our
mistakes all our sins, both of omission and commission
harm our families and neighbors. They have a moral right to
our best, while the average man does but a small part of his
best. It will be said that the drunkard's vice is worse than
any other. Does a man arrested for larceny plead that " other
men's crimes are worse than mine ; they should be punished,
not 1 1

During a public discussion of prohibition, my antagonist
said : " We can close our argument at once if my friend will
answer a simple question. The other night, down in a low
street, a den of thieves was unearthed. They had stolen some
carpets. The next door to this den of thieves is a large grog
shop, where many men have been ruined, causing an army
of women to turn their wan faces up to- heaven in a hopeless
appeal for help, and numberless children to hold up their rags
in mute prayer for protection. If our friend will tell us which
of the two he thinks deserves the severer punishment, we can
close our argument and go home. In the one case, thieves had
stolen some property from a rich man, who had not even dis
covered his loss ; in the other, poverty and despair have been
made to fill many homes." I said : " My friend could hardly
have given us a better illustration of the views I am advocating.
Let us suppose that the thieves had been told by the owner of
the carpets that they might come and get the property on a
certain night, that he would leave the back door unlocked.
What crime would the men have committed f If the rumseller
should slily approach his victims in the street, seize them and
force them into his den, and compel them to swallow his poison,
it would be a very grave crime. But he does none of these

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 19 of 60)