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Gerrit Smith Broadside and Pamphlet Collection

Edward C. Delavan, Esquire : Peterboro, August 22d 1855.

Smith, Gerrit, 1797-1874.

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Call number: Smith 498

PETERBORO August 22d 1855.

EDWARD C. DELAVAN, Esquire,

MY DEAR FRIEND,

I will write you a few pages on subjects, which have interested us, in some of our conversations with each other.

Government is a mighty educator of the people. Perhaps, it should not be. Perhaps, in a better coming day, it will not be. Perhaps, the school and the church and other educating powers will, yet, leave little room for government to mould the character of the people. Nevertheless, it is true, that, thus far in the world's history, government has had no small share in forming the popular mind.

That all men should betake themselves to a higher than a human source for the most important knowledge, is an undeniable proposition. But so it is, that the mass of men do, to a great extent, graduate their morals by the laws of the land. They stand by these laws, and they change with these laws. The English government was for slavery, and it followed, that the English people were for slavery. The English government abolished slavery, and every Englishman became an abolitionist. The government of our State was in favor of State lotteries, or State gambling. So, too, were her people. But the government laid its suppressing hand upon the vice; and where is there, now, one decent man among us, who would revive it? Is it said, that, in such changes, government does but conform to the demands of the people? - or, in other words, that the people are converted, before government is? I admit, that this is sometimes so; and I admit too, that, sometimes, government is prompted by the few. But, as a general rule, the whole people do not espouse a reform, until government has sanctioned it. The whole people cannot be moved forward, without the help of the example of government.

I proceed to other instances of the power of government to educate the people. The American government is on the side of slavery. It legislates for it; provides securities and facilities for the domestic slave trade; gives up its army and navy, ay its whole self, to the slaveholder to enable him to catch his runaway slaves. With its own hand, it opens wide the door for slavery to roam over Kansas and Nebraska with its bowie knives and barbarisms. Now, it is just because the American government is for slavery, that the American people are for slavery. I know it will be denied, that the North is for slavery. Nevertheless it is. I know we shall be cited to the fact, that the people of the North all talk against slavery. But their talking against it, without doing against it-still more, their talking against it, whilst voting, and otherwise doing; for it proves not their antislavery, but their hypocrisy. I add, that nothing short of their putting away slavery from the whole country should be accepted as proof of their doing against slavery. Is it said, that their hands are tied, and that they cannot deliver their country from this curse and reproach? It is themselves, then, that have tied them. Moreover, they can untie them, whenever they shall please to do so.

I have attributed the proslavery attitude of the American people to the proslavery attitude of the American government. But the people will be quicker to follow government in an antislavery direction, than they have been to follow it in a proslavery direction. Let government, this day, array itself against slavery, and this day, the people will be abolitionists. Let government signify ever so indirectly, or faintly, its willingness to drive slavery out of Kansas - and the people will, at once, call on government, in unmistakable tones, to drive the lawless devil, not out of Kansas only, but out of the whole country also.

War furnishes another instance of the educating influences of government. Every where, government holds, that war is right; and, hence, every where, the people are for war. But let government take the ground, that war is no remedy for wrongs, and that international disagreements should, like individual disagreements, be submitted to peaceful arbitrament - and the eyes of the people will quickly open to the unsurpassed folly, madness and wickedness of war; and they will then learn war no more, and love war no more, and permit war no more.

Again - wherever government undertakes to legalize and shelter the sale of intoxicating drinks, and makes itself, as it generally does, the great patron and nursing mother of that crime and abomination, there the mass of the people habituate themselves to such drinks, and no very small share of them become drunkards. But let government change its policy and stop such sale; and the people will change with it, and rejoice that the sale is stopped; and their practice of drinking intoxicating liquors will cease, and they will, consequently, furnish no more recruits to the army of drunkards.

We are not to wonder, that so many have been found willing to sell intoxicating drinks. The consciousness, that theirs is a lawful business overpowers, if, indeed, it does not absolutely shut out, all sense of its being a wicked business. How can they so much as suspect, that it is wrong, whilst government - nay more, whilst the people - holds it is right? I say the people for, in a very important sense, and especially in a Republic, government and the people are one. It is hardly too much to say, that the rumseller must feel, that it would be immodest and disrespectful in him to set up, in the face of so high authority, as that of government and people, even one doubt of the character of his business.

Nor are we to wonder, that such vast numbers drink intoxicating liquors, when the government, and the whole people through the government, teach, that it is right to drink them. On such authority to drink them, how can men well forbear to drink them? Nay, I had almost asked, how, on such authority to get drunk, men can well forbear to get drunk. Indeed, it is no very violent supposition, that the rum-drinker may feel, that he would be guilty of disparaging the wisdom of government, and of making an ungrateful and insulting return to the paternal kindness, which appoints persons to sell him the rum, if, after all, he is so obstinate, as to refuse to drink it.

I often think, that our young men and young women know but little, compared with what persons of your and my age know, of the educating power of government, in regard to rum. For, it must be borne in mind, that, in the last twenty years, government has much relaxed its friendship for rum; and that, in the last half dozen years, it has, in many instances, come out its open and effective enemy. I well remember how, in my childhood, I looked upon rum. Its very drops were precious in my sight: - scarcely less precious than drops of melted gold. I did not love the taste of it - for, not being allowed to drink it, I had not yet acquired a taste for it. But I saw how well it tasted to others, and how exceedingly well to a share of them. I said, that I was not yet allowed to drink it. This was not, however, through any fear, that my drinking it would tend to make me a drunkard; - for, at that day, the relation of cause and effect was not recognized, as between rum-drinking and drunkenness. Rum-drinking, being then regarded as necessary, drunkenness could not he numbered among its natural results. No, I was forbidden to drink rum in my childhood for the reason, that it was too good for a child's drink. To gaze upon the precious stuff, and to witness with what eagerness and delight others drank it, was privilege enough for a child. The privilege of drinking it myself was for my after years. That was a joy and an honor in reserve for my manhood.

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Such, in my childhood, was my sense of the preciousnesss and sacredness of rum. Such, too, was their sense of it, who had the shaping of my childhood. And on whom was it, that the responsibility for this delusion rested most heavily? On government. Nothing of all this deep delusion would have existed, had government been doing, at that time, in respect to rum what it has now begun to do. Government is, now, beginning to teach, that the drunkard's drink is fit only to be thrown away fit only for the thirsty earth to drink (,for, happily, our dear mother earth, can, unlike her children, drink abundantly of rum, and yet not lose her balance and stagger.) In my childhood, however, government made rum its pet interest; protected it with every care; and sanctified the abomination in the public heart. Not strange is it, then, that I grew up, reverencing rum, instead of despising, and loathing, and abhorring it.

I need say no more to illustrate the mighty educating power of government. And I scarcely need add, that if such is this power, the people cannot be too careful to select none but the wise and the good to wield it - none but the wise and the good to be civil rulers. Let me, however, here say, that the ballot-box seems to be the last place, where men can be reformed. There cluster the strongest temptations: and there, owing to our false education, we are weaker, than in any other circumstances, to resist temptations. Good men, when selecting one to fill their pulpit, make judgment and integrity indispensable qualifications. But the same good men, ignorant and infatuated in the sphere of politics, can be incited by party spirit to vote almost any shallow and corrupt person into the highest place of civil power. And, yet, these good men profess to be guided by the Bible - by that book, which, as abundantly and as emphatically, requires ability, and truth, and righteousness, ay and holiness in the civil ruler, as in the occupant of the pulpit. Oh, when will the professed believers in that precious book be real believers in it? When will they choose for political rulers "able men, such as fear God, men of truth, hating covetousness?" When will they prove by their votes their belief, that: "He that ruleth over men must be just, ruling in the fear of God?"- nay more, that the ruler "is the minister of God," and that, consequently, he, and he only, is to be selected for the ruler, who is known to act on and act out, the principles of God?

After this long and, perhaps, wearisome introduction, my way is prepared to say, that I greatly value and love our Maine law. One of the Resolutions, which I had the honor to submit to our late State Temperance Meeting, declares: "That nothing can so effectually serve to educate the people into right views of the effects of alcoholic liquors held for sale for a drink, and, into right views of the disposition, which is proper to be made of them, as to have government doom such liquors to destruction." It is in the light of the doctrines of this Resolution, as well as for other reasons, that I attribute so much worth to our Maine law. The prompt submission, save in a very few localities, of the whole State to this law is a very impressive lesson of the power of government to educate the people. The people have submitted to the law because it is law; and they believe its restraints to be right because it is law, that tells them so. Over the whole length- and breadth of my County no liquor save by one infatuated person is openly sold for a drink: - and thus blest by the law would be every County in the State, not excepting even the County of New York, were it not for the assaults, which eminent jurists have made upon its constitutionality; and were it not for official unfaithfulness to the law; and were it not, also, for the extensive belief, that the law permits the free sale of imported liquors.

The eminent jurists, to whom I have referred, hold, that our Maine law is unconstitutional for the reason, that it does not, in their judgment, provide for such proceedings, as "due process of law" calls for. I admit, that, as I am not a lawyer, it is not for me to say whether our Maine law does provide for such proceedings. I admit too, that, without such proceedings, no inhabitant of our State can be legally deprived of his property. I admit this because our State Constitution declares it. I admit it, too, because the Federal Constitution declares it: - for I hold, that the Federal Constitution declares it as well for the States, as for the other portions of the country. That it does so is manifest both from the letter and history of the clause in question. By the way, I wish these eminent jurists would be impartial enough to apply this clause in the direction of liberty, as well as property; and to admit, that it is a clause as strongly against robbing men of their liberty, or enslaving them, as it is against robbing them of their property. Oh that it were as popular and as profitable to give an Opinion for freedom, as for rum!

I have admitted the claim of these eminent jurists, that certain proceedings are essential, in order to deprive a person constitutionally of his property. But, with all deference to their wisdom and learning, what has this claim to do with the constitutionality of our Maine law? This law dooms to destruction intoxicating liquors, that are put on sale for a drink. But, as I interpret and vindicate it, it asserts no right to deprive persons of property in such liquors. As I interpret and vindicate it, it asserts no right to destroy any property. The right it asserts is to destroy that, which has ceased to be property - that, which, by reason of its mischievous and murderous perversion, has become an outlaw. It asserts not the right to destroy the living and useful horse: - but only the right to bury his putrid and infectious carcass. Nor does it assert the right arbitrarily to outlaw property. All that it claims, at this point, is the duty of government to confirm or repeat the sentence of outlawry, which reason has previously pronounced. I fully agree with that part of Judge Bronson's Opinion against the law, which says, "that the Legislature cannot make a thing a nuisance by merely declaring it to be such. It must be noxious either in its own nature, or from the place or manner of keeping or using it." Had our Maine law doomed wheat or corn, in lieu of rum, to destruction, it would clearly have been in the face of the constitutional clause, of which we have spoken; and the courts would, therefore, have been bound to declare it unconstitutional. I go farther in agreeing with Judge Bronson - so much farther, as perhaps greatly to surprise you. I subscribe to his doctrine, that "whether a thing is a nuisance or not, is a question for the judiciary, and not for the legislature." I mean by this doctrine, that the final decision, whether a given thing is a nuisance, rests with the courts, before whom, and not before the legislature, all the evidence in the case is supposed to be presented; and with whom, and not with the legislature, is supposed to be the superior ability to pass upon both law and evidence.

This doctrine of Judge Bronson does not, however, stand in the way of enacting a Maine law. The Judge will, surely, not deny the right of the Legislature to prescribe penalties for nuisances; and he surely will not deny its right to declare, that certain things are nuisances. He will admit, that the Federal Legislature had the right to declare, that selling liquor to the Indians is a nuisance, and to provide for its abatement. He will admit, that our State legislature had the right to declare, that liquors and gambling apparatus, brought upon certain grounds, are a nuisance, and to provide for its abatement. All that the Judge will claim at this point, and I will unite with him in the claim, is, that if the courts shall find, that what the supposed Maine law declares to be a nuisiance is not such, they, the courts, will then be at liberty to override the legislation, and pronounce it unconstitutional and void. The Judge is doubtless content, that, in the case referred to, the Federal courts suffered the Federal law to stand, and that in the case of the liquors and gambling apparatus the State courts suffered the State law to stand; and he will doubtless be content; so far at least as the question of nuisance is concerned, if our State courts shall, because convinced, that intoxicating liquors offered for sale for a drink are a nuisance, and not property, uphold our Maine law. But will these courts be thus convinced? That is the great - and, I also say, that is the only important - question in the case. Once let people, legislature, courts be convinced, that the selling of intoxicating liquors is a nuisance, and that all rights of property therein are forfeited, and such conviction will be a sure basis, on which to build the most stringent and effective Maine law. I add, that no Maine law can be permanently valuable, which does not rest on such a basis.

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I repeat my question - or rather what is substantially my question. Should the courts justify the legislature for having declared the forfeiture of all rights of property in intoxicating liquors put on sale for a drink? This question is best answered, in answering the question, whether reason declares such forfeiture: - for if reason declares it, then, manifestly, the legislature is not only at liberty, but is bound, to repeat the declaration. Now, that reason declares it, is obvious from the fact, that, whilst, on the one hand, such liquors do no possible good; on the other, more injury comes from them than from all other material substances put together. As the occasion of crimes, and tears, and death - death this side of the grave, and death beyond it - the selling of intoxicating liquors for a drink stands unrivalled.

I am prepared to say, that our courts will justify our legislature: - for they will not fail to see, that reason justifies it; and they will not fail to see that, in all the States around us, the people and the legislature - are coming thus to interpret the conclusions of reason. Moreover, they will recollect, that, when the people of our State elected their legislature for the paramount purpose of getting the Maine law enacted, they virtually declared, that, in their judgment, reason denies all right of property in intoxicating liquors, which are held for sale for a drink. The last thing to be feared is, that the courts will dissent from the legislative declaration, that such liquors area nuisance. They will have too much respect for reason, and for the legislature, and for the people to be guilty of such dissent - too much respect for the great God, and for poor rum-afflicted humanity.

Is it apprehended, that the drinking of intoxicating liquors by some of the members of our courts will blind such members to the attitude of reason in this case? I am aware, that the tendency of such drinking, especially if it amounts to a habit, is to bring up mists between the eye and the truth. Nevertheless, the truth, that reason pronounces the sale of rum for a drink to be a nuisance, is so glaring, as to be discerned through all such mists; and, I add, that the honesty we may look for in a member of the court is enough to justify our expectation, that such discernment will be confessed. Indeed, it will be no small argument with our courts in favor of pronouncing such sale of rum a nuisance, that every person, whose vision, in this case, is unbeclouded by appetite, or usage, or interest, not only sees the nuisance very plainly, but sees it to be the greatest of all nuisances. For one, I regard it as greater than all other nuisances put together; and I do not hesitate to say, that it were better for the community to have this nuisance abated, and every other allowed, than to have this allowed, and every other abated.

It is not a little remarkable, that nearly all of these distinguished lawyers, who deny the constitutionality of our Maine law, have assumed, that the liquor, which this law pronounces a nuisance and no property, is property. In this assumption they are guilty of begging well nigh the whole question in the case. It is true, that, among these lawyers, there is a Judge in the Eastern part of the State, who does not assume, that such liquor is property. He goes into logic to prove, that it is. But alas for his logic ! He argues, that such liquor is property, because what it was made of was property. What "the infernal machine" and the murderer's torpedo-box were made of was property. Will this learned Judge, therefore, contend, that the sacred rights of property attach to these devilish destroyers? To be consistent he must. Hence, as his logic proves too much, it proves nothing. It is due to this Judge, that I admit, that, as I have seen but an extract from his Opinion, I may not have represented him justly.

The Opinion of Mr. Daniel Lord against the constitutionality of our Maine law is much relied on by the enemies of the law. But if one, who knows so little of law, may be allowed to speak freely of a legal paper drawn up by one, who knows so much of law, then I do not hesitate to say, that this Opinion of Mr. Lord is, because of the gross errors in it, utterly worthless.

Mr. Lord regards the legislature, as having, in the present instance, presumed "to make" and "to create" a nuisance, whereas it has, as in innumerable former instances, but declared a nuisance. Moreover, its declaration of a nuisance in this case is just as open, as are its declarations of a nuisance in all former and in all other cases, to the revision of the courts. If, in the present instance, the legislature has declared that to be a nuisance, which shall turn out before the courts, not to be a nuisance, it is no more to be charged with usurpation, than when the mill-dam, which it has declared to be a nuisance, turns out before the courts not to be a nuisance. In the one case, as much as in the other, it has but fallen into an honest mistake, which, in the one case, as much as in the other, the courts are at full liberty to correct. Mr. Lord should not have contributed to the prejudice against our Maine law by setting up this unfounded distinction against it.

Again, if I understand Mr. Lord, he would deny to the legislature the right to declare that to be a nuisance, which was not a nuisance by the common law, at the date of the Constitution-that is, as I suppose, which had not, as yet, been convicted, at the common law, of being a nuisance; - for a thing may prove to be a nuisance, at the common law, which has not yet been convicted of being such. The principles of the common law expand in their applications with the progress of knowledge. If ever the presence of potatoes, or rum, shall prove to be the cause of fevers or cholera and small-pox, then will such presence be confessedly a nuisance, at the common law.

I take it for granted, that Mr. Lord would subject the courts to the same restriction, which he has here imposed upon the legislature. Hence if the cholera, in its most malignant and wasting form, should now breakout in the city of New York; and observation and science should reduce it to a perfect certainty, that some great accumulation of hops or tobacco in the city was the sole cause and support of the disease - both the legislature and the courts would, according to Mr. Lord, be impotent to abate the nuisance. I suppose Mr. Lord would admit, that the Constitution might be so amended, as to shut out hops and tobacco from the limits of lawful trade: - but ere that could be accomplished, all New York might be dead. I need say no more to illustrate the unsoundness of this doctrine of Mr. Lord. Were it adopted, it might be found to stand sadly in the way of human progress, human happiness, and human life. I add, that this doctrine finds no countenance in the Constitution of our State. That paper imposes no such restriction on either the courts or the legislature: and happily it is of higher authority than the vagaries of Mr. Lord.

What I have said on that point is sufficient to show, that the selling of intoxicating liquors for a drink is a nuisance. I add, that, as this is the most wide-spread and pernicious of all nuisances, so the legislative, or, in other words, the most authoritative and impressive, declaration, that it is a nuisance, is especially called for. There are, necessarily, ten thousand cases, in which the legislature must leave it to the individual to treat as a nuisance, subject to his responsibility for so treating it, what he may conceive to be a nuisance. But, in the present instance, and for the reason I have just given, the legislature is emphatically bound to declare the nuisance, and to provide for its abatement. Again, if the destruction of the liquor is left to the option and responsibility of the individual, he may, under the promptings of ignorance or malice, destroy that, which is not put on sale for a drink, and which is, therefore, still property. Moreover, having done the wrong, he may be both unable and unwilling to repair it. I spoke of the liberty of the individual to attribute to a thing the character of a nuisance. Judge Bronson very properly says: "A public nuisance may be abated by any one; but he will act at the peril of being able to prove, that the thing was in fact a nuisance". I add, that if such is the right of the individual, it surely must be the right of the Legislature to enact, that a thing is a nuisance, which, in its honest judgment, is such; - the enactment being always liable to be overthrown by the courts.

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Only a few years more, and every State in the Union will be blest with a Maine Law. It requires no great, no not the least, progress in virtue to realize this prediction. They err, who believe, that the temperance cause will but keep pace with the general morality. Natural vices will he overcome, and cast aside, only as virtue and moral truth shall advance. Not so, however, in regard to an unnatural vice like rum-drinking. I call it unnatural, for the reason, that there is a natural repugnance to be conquered, ere the habit of rum-drinking can be formed. Gluttony and adultery may be called natural vices, inasmuch as the appetites, which they indulge or abuse, are natural. But the habitual rum-drinker has had to create anew and an unnatural appetite. Now, wherever a people has come to see as extensively as the people of the United States has come to see it, that it was a great mistake to attempt to increase the sum of human happiness by drinking intoxicating liquors, they will not fail to correct the mistake: - and they will correct it easily - for, instead of having to encounter their natural appetites, as they have to do, when endeavoring to overcome their natural vices, they will have the help of these appetites to correct the mistake. No - all that is necessary to induce the people to set up the Maine law in all our States is to get their eyes open only a little further to the evils of intemperance - to the folly, of which the sober are guilty in supporting an immense army of drunkards, and in allowing, on the average, to every hundred families some two or three dram-shops, or manufactories of paupers and madmen. No - all, that they need to this end is to get their selfishness a little wider awake - and then, whether they have one particle of christian morality or not, they will come down upon the selling of alcoholic drinks, with a vengeance, that shall not leave one undestroyed shred of the accursed abomination.

But my purpose in referring to the fact, that the Maine law will soon become the law of the whole nation, was not to explain why it is, that this fact will come to pass. Nor was it my purpose to improve the opportunity of telling the opponents of the law, that to beat it back for a fear months, or even for a few years, will pay them but poorly for their pains, and for the utter blasting in the end - the speedy end - of all their hopes. No - I referred to this fact, for no other purpose than to say, that, in almost every part of the nation, the public sentiment is preparing so rapidly; and calling so loudly, for the enactment of the Maine law, that to delay the enactment is to expose the people to the temptation of taking the law into their own hands. Repeatedly within the last few years has the case occurred, in which women, impelled by the sight of drunken husbands and drunken sons, have collected, and marched to the dram-shop, and vented their indignation in destroying its contents. Who could blame them? No one would blame them, had their work been killing dangerous dogs. Is it said, that the dogs bite? So does rum-and with a bite as much more to be dreaded than that of dogs, as the soul is of more value than the body. Is it said, that the rum can be shunned, but that the dogs cannot be; and that, therefore, the rum may be left, whilst the dogs must be killed? I answer, that the rum cannot be shunned: - that there are millions of our poor brothers, whose self-control is so weakened - so prostrate - that, if rum come within their reach, they will drink it: - ay, even though it be to cast their pauper families afresh on the public charity, and to renew their demoniac zeal to burn, and shoot, and stab.

For one, I could not blame, but my whole heart would honor, the group of persons, who, in any State, where the legislature refuses to enact a prohibitory or Maine law, should destroy the intoxicating liquor, which is put on sale for a drink. They would obey the law of self-defence - a law, which is paramount to all statutes and constitutions. I add, that statutes and constitutions are entitled to retain their authority, and can retain their authority, over the public conscience, only so far as they keep pace with the true and everlasting law of self-defence.

I am often asked, whether I believe, that our courts will pronounce our Maine law unconstitutional. What I have said shows, that I do not believe they will pronounce it unconstitutional on the ground, that it denies rights of property in intoxicating liquors, which are put on sale for a drink. Whether it will do so on any other ground I feel myself incompetent to judge. Let it be declared unconstitutional, if for any reason it is essentially so. We do not need an unconstitutional Maine law. If the present is not a constitutional law, we can, and will, have one, that is.

I am often asked, too, what, in my opinion, is the relation of the law to imported liquors. But that relation, whatever it is, does not affect (,though many suppose it does,) the question of the constitutionality of the law. I am free to admit, that the phraseology in the first section of the law respecting imported liquors is, to say the least, unfortunate. Certain it is, that, looking at this phraseology only, such liquors are no part of the subject matter of the law. If any thing in other parts of the law can be justly held to bring such liquors within its scope and prohibitory operation. I shall be glad. I add, that so great is my fear, that our courts will except such liquors from such scope and operation, that I should be glad to see an extra session of the legislature called forthwith for the purpose of having the law so amended, that its meaning, at this point, shall be certainly and unmistakably - beyond all doubt and cavil - in behalf of reason and justice and humanity. Tens of thousands of hearts bleeding at every pore under the blows of intemperance groan, day and night, for the promised and expected operation of the law. But the law is paralyzed to a great extent by the influential Opinions, that it tolerates the free sale of imported liquors. I add, that, at such a session, the law might, perhaps, be improved in other respects also; - for it would not be strange, if the criticisms upon the law, and the operation of the law, have suggested the improvement of it in other respects also. Is it said, that the calling of the legislature together for the sake of amending a single law is too great a cost? I answer, that not only are there precedents for it, but that it is hardly too much to say, that this law is of more importance to the people of our State, at the present time, than are all other laws put together.

But the great and frequent question, which runs through the ranks of the friends of temperance, is what they shall do at the ballot-box. To my mind nothing is more certain than what is the appropriate answer to this question. Let them resolve unalterably to vote for no candidate for legislator, or judge, or for any office, which can, by any possibility, be connected with the execution of the Maine law, unless such candidate honestly and boldly denies every right of property in intoxicating liquors, that are offered for sale for a drink. Let them do this, and then all will be safe. So far as the temperance question is concerned, they need require no other qualification in their candidate. To require less than this would be to make themselves guilty of treason to the cause of temperance, and of contemptible folly.

With great regard, your friend,

GERRIT SMITH.