TEMPERANCE.

CLERGYMEN and physicians have acted nobly and efficiently in the cause of Temperance. To the first is due the praise of having originated the movement, and the still greater praise of persevering in it through a period of more than twenty-five years, with earnestness and zeal. To the last the second honor is due, not so much for their public professional activity in the cause, as for their constant and efficient commendations of it in their professional intercourse with society. It is with regret I am compelled to confess that lawyers, as a profession, have taken no part in this most important cause. A few most estimable individuals have given it their active support and influence; but the great body of the bar has stood aloof from it, while it is notorious that a fraction, and by no means an inconsiderable one, has encouraged, rather than discouraged, intemperance. It is highly probable that this state of the case has arisen from causes incident to the different professions, rather than from any stronger interest felt by the clergy and physicians for the promotion of private and public virtue. It is emphatically the business of the clergy to be sentinels on the moral watch-towers, to ring the tocsin on the appearance of an enemy. This duty they have performed most faithfully and energetically. So, too, it is especially the business of physicians to attend to the health of the public, and of each within his bounds, to warn his customers of the injurious effects of intemperance on the human constitution. These two professions address the fears, the minds, and the consciences of men. But it is no part of the professional business of lawyers to watch over the morals or health of the public. In common with every other citizen, as individuals, each is required to do all in his power to promote the public good; but, professionally, his whole duty is confined to an exact and impartial administration of the laws of the land. It is not the lawyer's province to address the fears, the minds, or the consciences of men, with a view to persuade them to act correctly; but confident in his knowledge of the law, he imperatively dictates a course of conduct which must be pursued, or certain consequences become inevitable. Nor is it his duty, any more than it is the duty of every citizen, to prosecute for offences that come under his observation; for his duty begins only when a case is professionally brought to him.

In this country public opinion is, in a very great degree, the higher law. It controls legislation; and, if it cannot prevent, it may embarrass the execution of a law. In every matter, therefore, relating to a reform of inveterate habits, however pernicious, it is of the highest importance to secure a decided public opinion in favor of the necessity and measure of reform, before attempting to restrain them by coercive acts; for the cause must be injured if legislation should anticipate public opinion: consequently, the cause of Temperance has been admirably conducted by permitting clergymen and physicians to enlighten the public on this most important subject, before lawyers should commence active and energetic operations. Public opinion is now ripe for them; and although I will not say that a majority of the people is ready to sanction a law prohibiting the sale of intoxicating drinks, I certainly hazard nothing by asserting that nine-tenths

of the people will sanction a rigorous execution of all the laws on our statute book relating to excise.

It may be supposed that lawyers can do nothing more for the cause of Temperance than clergymen and physicians, or any other citizens. In a sense, this is true. They have neither more moral influence, nor more persuasive eloquence, to lead men to the voluntary performance of duty. Nor is it to be expected that they will become informers and prosecutors; but there is a vast moral field open to them in explaining the laws, and in giving sound legal advice to the people, which will come home to their bosoms and consciences with more power than abstract moral influence, eloquence, informations, or prosecutions. The laws now on our statute books are not understood by one man in a thousand in our state. If they were-and temperance men should direct their energies to an observance of their proper execution-we should have little cause to lament the want of an act to prohibit the sale of intoxicating drinks, and we should soon see a reformation in taverns and public morals. If the lawyer cannot banish intemperance from our state, he can fence it in so that it will produce little harm, and the unanimous public voice will ultimately demand a prohibitory law for the sale of strong drinks.

If we cannot execute the laws now in being, how can we hope to execute a more stringent law-a prohibitory law-if it were enacted? The laws that are now in force are the very next thing to a total prohibition of the sale of intoxicating drinks, and, if executed according to their letter and spirit, the next step in advance must be a prohibitory law. In this paper I propose to examine the section exclusively relating to the license of taverns, and expect to make this truth apparent.

The 6th section of the act relating to Excise and Taverns is in the following words: "Licenses shall not be granted to any person to sell strong and spiritous liquors and wines, to be drank in the house of the seller, unless such person proposes to keep an inn or tavern, nor unless the commissioners are satisfied that the applicant is of good moral character, that he is of sufficient ability to keep a tavern, and has the necessary accommodations to entertain travelers, and that a tavern is absolutely necessary for the actual accommodation of travelers at the place where the applicant resides, or proposes to keep the same; all which shall be expressly stated in such license."

This language is so strong and clear, that it may be supposed it is unnecessary to explain it; and yet, it is a notorious fact, that it is universally misunderstood, or, if understood, disregarded, by the officers charged with its execution; and that the public, believing the practice of these officers to be in obedience to the letter or spirit of the law, has silently acquiesced in their practice.

The officers charged with the execution of the above-quoted law are, first-the trustees of villages; and, second, the commissioners of excise. Some corporations, as New-York, etc., have exclusive control of the matter; but the trust reposed in them, and the principles of the general law, are as applicable to them as to the trustees of villages and the commissioners.

The acts of incorporation of the villages of this state, confer on the trustees of these corporations the power to restrict the number of taverns to be licensed within the limits of their respective corporate bounds, to a certain number. They cannot designate who shall, or shall not receive a

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license, nor interfere with the acts of the commissioners of excise in any other manner than by confining them to certain limits; consequently, the only part of the above quoted section legitimately within the scope of their power is, whether "a tavern is absolutely necessary for the actual accommodation of travelers" within their bounds. This is precisely the subject-matter committed to their keeping, and nothing else. The deposit of this power in the trustees is the most judicious that could be made. Who could determine the number of taverns absolutely necessary for the actual accommodation of travelers," so well as the trustees, and be responsible to the inhabitants for the manner of performing the trust? Who could be expected to discharge this most important duty so carefully, to exclude mere grog shops, and neighborhood pest-houses, as men elected to discharge this duty under the sacred responsibility of an oath, with the eyes of their constituents upon them sharpened by fears of riots, gambling, and every moral depravity?

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The cautious words of the law prohibit the trustees from authorizing a license to be granted in a doubtful case. A tavern must not only be "necessary," but absolutely necessary;" and not only necessary for future, contingent or possible travelers, but "for the actual accommodation" of the real customary number of travelers within their bounds. Thus cautious is the law. It does not permit the trustees to indulge in any speculation for the future; it gives them no discretionary power, but confines them to the single naked fact, whether a tavern is ABSOLUTELY necessary for the ACTUAL accommodation of travelers" then frequenting the place. If the trustees exceed the powers thus granted, they violate the law, and assume a heavy responsibility: And yet it is notorious that the trustees have been successfully solicited to authorize a larger number of licenses than the law and their oaths permit, on the unjustifiable ground of charity to landlords and their families; because, forsooth, if they should receive no license to make drunkards, to corrupt the morals of our youthto starve, and in various ways make wretched parents, wives, children and neighborhoods-they will be unable to maintain their families and bring up their children in the midst of corruption, and will lose the amount they have invested in their stands!! And again, the still more absurd reason has been successfully urged, that if licenses should not be granted to the customary number, the party rejected will do his nefarious business without a license, and the public will suffer the evil without receiving the amount required for a license!!! It is not necessary to waste time to show the weakness and corruption of these arguments, which would be a very easy matter; but, I ask, where is the power conferred on these officers to take such facts into consideration at all, even if they were just and proper appeals to their sympathy as men? All the power they possess is conferred by the act, all the provisions of which relate to the protec tion of the public, and not one to the protection of the tavern-keeper. Where, then, do they obtain the power to annul and disregard the statutory provisions, without the literal fulfilment of which the law expressly says, "Licences shall not be granted," and substitute others, all in favor of the tavern-keeper, at the ruinous expense of the public? I beg, nay, I demand, of them to show it, as well for the satisfaction of the public as for their honor.

The above remarks apply as forcibly to the commissioners of excise as to the trustees; but, the commissioners of excise have more duties to

perform in this matter than the trustees, and, therefore, demand special attention. We have seen that the power of the trustees is confined to a prohibition to license more taverns than a specified number; but it by no means follows that the commissioners are bound to license the number thus authorized. They cannot license more, whatever may be the necessity; but they are bound not to license as many, if, in their judgment, they are not "absolutely necessary for the accommodation of travelers " in the village. They are sworn to do their duties according to their own sober judgment, and not by the dictation of others. The trustees have the power of fixing the outside number to which they may go, but not fixing the number to which they shall go, which is a matter the law has left to their judgments and consciences, as well as to the judgments and consciences of the trustees. But to enable us to understand the important duties of the commissioners of excise, we must examine them in detail. It will be seen by a reference to the section of the act I have quoted, that five conditions are made necessary by the law, every one of which must be fulfilled to the letter, or, in the words of the law, "Licenses shall not be granted" by the commissioners. These conditions are-First, "That the person proposes to keep an inn or tavern"-not a mere groggery, but a tavern, in a legal sense, for the accommodation of travelers. I will not stop to inquire into the general practice of commissioners in relation to this condition or provision, because it is notoriously disregarded or overlooked. It is true that this condition is rather a promise made by the applicant, to be fulfilled if he should get a license, than a condition precedent, to be investigated by the commissioners. But, nevertheless, respect must be paid to it, and a conscientious discharge of duty requires that no license should be granted without a confidence that it will be fulfilled. And yet is it not notorious that licenses are granted to parties whose real intentions are known to be, not to keep a tavern, in a legal sense, but a mere groggery and pest-house of a neighborhood? Is there a town in the state in which such establishments cannot be pointed out? But let us pass this comparatively unimportant matter, if any duty can be unimportant which is enjoined under the solemn sanctity of an oath, and which relates to the morals of our citizens, and pass to the next condition or provision, which is-Second, 66 nor unless the commissioners are satisfied that the applicant is of good moral character." Here we have a condition requir ing the positive knowledge of the commissioners. The applicant must be "of good moral character," of which the commissioners must be "satisfied" by proof, if they should not personally know it. Negative character is not sufficient, for the law requires it to be positively good: and it was wise in the Legislature to require a positively good character in a man appointed to entertain travelers-strangers-whose comfort and safety, in money and person, are in his keeping for a time. The term good moral character is understood to be that against which no particular vice is chargeable. He must neither be a drunkard, a bawd, a cheat, a common liar, a gambler, nor any of those things which the common-sense of the community asserts to be vile or infamous. How many tavern keepers in our state would have been refused a license this year, if the commissioners had conscientiously respected 'this most important provision of the law? How many of the old tavern keepers, who have for years been growing rich by violations of the law,-selling liquors on the Sabbath, selling at all times to minors, paupers and apprentices,-encour

aging and engaging in various modes of gambling, and permitting obscene exhibitions and practices on their premises, would have been refused licenses by commissioners sensible of the weight of responsibility of their official certificate, under oath, that these men are "of good moral character," as they are compelled to do when they sign the license? I contend, and at least every lawyer will support the position, that a tavern keeper of a year's standing, has a moral character as a tavern keeper which may be entirely distinct from his character as a citizen, and which should be the subject of special attention by conscientious commissioners. He may be a man of strict probity as a citizen, and, as such, maintain an excellent character; and, as a tavern keeper, violate every provision of the law, and maintain an infamous character, and, consequently, not entitled to a license from commissioners who are compelled to certify, under oath, that he is "of good moral character." But it is unnecessary to dwell on this most important provision, and I, therefore, pass to the next condition or provision of the law, viz:

Third, "that he is of sufficient ability to keep a tavern ;" and the next condition, viz:

Fourth, "and has the necessary accommodation to entertain travelers," which I will notice in conjunction for the sake of brevity.

The word "ability" has reference to pecuniary means, and signifies that he has something more than the mere outfit for the "necessary accommodation of travelers" which immediately follows. These provisions exhibit the minute and careful circumspection of the Legislature in conferring the power to grant tavern licenses, by surrounding it with all the guards a far-sighted prudence could suggest. The applicant must not only be "of good moral character," but he must have the "ability" to continue so, and, at least, be above the necessity of immediate temptation to do wrong; in other words, he must have the "ability" to keep a tavern in a legal senseto wait for travelers and not be under the necessity to corrupt and sponge on a neighborhood to meet his daily wants. The 4th provision confirms this construction, because it proves that the entertainment of travelers is the chief, nay, only design, in licensing taverns. The Legislature knew that they are sometimes useful accommodations to neighborhoods; but they are never so useful as to be indispensable, and are a hundred times more pernicious than useful, unless all the provisions of the law are strictly observed or enforced. But of what avail is it for the Legislature to enact laws so carefully, if the provisions remain a dead letter on the statute book, and the commissioners license without regard to them?

I come now to the last condition, which, if it is possible for one to be of paramount importance where all are most solemnly enjoined under the highest sanction known to the law and the consciences of men, is emphatically the most important of any enacted; it is,

Fifth, "that a tavern is absolutely necessary for the actual accommodation of travelers at the place where the applicant resides or proposes to keep a tavern.”

This condition or provision, although it is the last in the series applicable to the tavern keeper, is the first in importance and consideration for the commissioners; and, as I have said, the only one for the trustees of the villages. All the previous conditions relate to the personal fitness and ability of the applicant to keep a tavern; but this last is fundamental, independent of fitness and ability. He may have all the legal requisites