CHAPTER VII

THE PRINCIPLES OF LIQUOR LEGISLATION

WE are now in a position to focus the facts and considerations contained in the previous chapters into some lessons bearing on the practical question of legislation. We have seen that intemperance has always prevailed in this country; that it has been much worse in the past than it is now; that various forces, of which legislation is one, have gone towards improvement; and that various others remain which oppose it. What, then, can be done to further the process of improvement already in progress? What part should legislation play in it?

There are two extreme schools of thought, whose views may be noticed to clear the ground before answering these questions. The one maintains that legislation has no right to interfere with personal liberty at all in this matter, and that all liquor laws are merely mischievous; the other that our existing laws have all failed completely because they do not interfere enough, that the evil is getting rapidly worse, and that far more drastic remedies must be applied. Having failed to prevent excessive drinking, they propose to prevent drinking altogether.

The argument of individual liberty would be valid, if it were not for the drunkard. I have the most absolute right to interfere with him, because he interferes with me. It is the same right that entitles the community to interfere with the criminal. Both are nuisances, and for my own part I prefer the criminal. I can protect myself against him in various ways, but from the drunkard there is no escape. He lurches up against me in the street, he wants to embrace or fight me in the train, he terrifies my wife and children, while I am taxed to pay for his. His conduct gives the community a right to make any laws which are likely to repress him without unduly interfering with the liberty of other and unoffending individuals. Such regulation of the liquor traffic as falls within this definition is both lawful and expedient.

The answer to the other school is that the drastic legislation they advocate does not fall within the definition, and that their premises are erroneous. Other measures have not wholly failed, and the evil is not getting worse. But failure to carry out comparatively mild laws is a curious argument for enacting severe ones; for in a free country laws are carried out just in so far as they accord with public sentiment. When mild ones are evaded or slackly administered, what chance is there for severe ones which would infringe the rights of unoffending individuals?

Turning from this counsel of despair, reformers, I think, may find both encouragement and enlighten

ment in the lessons of the past. Some measures have failed, but others have succeeded, in part at least. It is possible to succeed again; but how? Obviously when fresh legislation is contemplated in such a thorny and intricate business as this, some guide is wanted to steer a way through the pitfalls on every side. Some test is needed to distinguish between the courses offered to the Legislature in order to avoid futile and mischievous steps and to ensure real advance. In other words, it is necessary to lay down some principles.

It is a surprising thing that hitherto no attempt has been made to formulate any such principles. No question, except finance, has so long, so generally, and so persistently engaged the attention of legislatures; none has been the subject of more experiments; none has been more discussed and investigated. One would have expected some generalisations to have been made about it ere this; but the very latest official investigation, devised upon the largest scale and entrusted with an inquiry of the broadest scope, spent some three years on it without even betraying the slightest consciousness that there might be any such thing as a principle involved. It is not for lack of material. We have in this country an experience of several centuries, during which the Legislature has repeatedly tackled the liquor question, and hammered and tinkered at it, mainly in one direction. In other countries we have every conceivable experiment in other directions spread out for our edification. Surely some general

lessons can be drawn from all this mass of material which would raise the question a little out of the chaotic confusion surrounding it and keep it from being so often the sport of theory, assumption, sentiment, passion, prejudice, and self-interest. The Peel Commission gave no help. It merely took up one point after another, without any plan or order, found them all in an unsatisfactory state, and proposed a long and promiscuous list of amendments, based on no principle and sometimes inconsistent. There is nothing to show that these proposals would not repeat past blunders or would produce any more satisfactory results. What we want to know is: How far and why measures have succeeded or failed; what makes the difference between good and bad legislation; what law can do and what it can not. I venture to offer some suggestions towards the elucidation of these questions.

What are the essential functions of the law? To preserve order, to maintain justice, and to protect the community. Magistrates are Justices of the Peace.' It is not the function of the law to make people good. Whenever it tries to do that it fails. The attempt has often been made to deal with various forms of vicious self-indulgence; to abolish extravagance, for instance, by sumptuary laws; to suppress idleness, prostitution, gambling, and betting; and the sole result has been to bring the law into contempt. Moral evils can only be effectually combated by moral agencies. The law can properly deal with them in so far as they constitute a public

nuisance and a cause of disorder. It does so, in fact, with a certain amount of success. That is the principle on which gambling and prostitution are dealt with in western communities. The imperfect success attending this modest aim significantly marks the limit of practicable interference with natural appetites. When pushed beyond it the result is failure, and worse than failure, through the disinclination and corruption of the executive. Some forms of vice, such as gluttony, avarice, and idleness, cannot be touched at all, because they do not infringe public order and decency. Indirectly, indeed, the law can sometimes encourage or discourage vicious courses, but its direct interference is limited to the point at which public tranquillity,' as the French code has it, is threatened. In other words the community can only interfere with the individual when the individual's conduct interferes unpleasantly with the community. The reason is plain. The community itself is on the side of the inoffensive individual, through fellow-feeling, and in self-protection it frustrates the administration of laws which are out of sympathy with its sense of justice and freedom.

It is sometimes argued that the objection of failure or inefficiency may be equally urged against criminal law, which often fails in practice. The argument betrays confusion of mind. Criminal law is directed against the criminal for the protection of the community, and against no one else; its enactment cannot increase crime, and its administrative