take a drink in the privacy of a man's own home, for "they shall sit every man under his vine and under his fig tree and none shall make them afraid, for the mouth of the Lord of Hosts hath spoken it." In other words, the wary Prohibitionist of Iowa or Kansas says: I have prohibited the manufacturing of beer; I can't prohibit anyone from drinking it, for that would be a violation of a right for which men have battled from the days of Runnymede to Spions Kop.

I can't prevent him from getting it as long as the Congress of the United States controls interstate commerce and permits him to import it consigned to himself, but if I can get the Hepburn bill passed I can seize the goods "before and after delivery," and then, inasmuch as he can't import it, and can't get it in his own State, there will be nothing left for him to do but quit drinking; and presto! Prohibition will prohibit. Surely, the mere statement of this proposition is its sufficient answer.

The very simplicity of the bill conceals its truly extraordinary and far-reaching character. Its passage would be the greatest invasion of the rights of the individual ever perpetrated by any American Conit would bring more discord and strife into the peace and harmony of the States, and stir up more bitterness and feeling among the people than any legislation since the fugitive-slave law; it would mean a loss of many millions to the brewing interests of the country; it would line the boundary of every temperance State with sneaks and smugglers; and, inasmuch as whisky can be more easily smuggled than beer, it would do the cause of temperance far more harm than good.

The beer drinkers and the enormous brewing industry of the United States do not believe that Congress is ready to pass any bill which either in purport or effect is a prohibition measure. While the temperance sentiment in this country may in recent years have increased, there can be no question that the prohibition sentiment has decreased. As a political issue prohibition is dead, and as a moral issue it has been abandoned even in the house of its friends. And this fact ought to be a source of much hope to the true lovers of temperance, for it means that if this great drink question is treated with fairness and intelligence instead of with bitterness and bigotry great good can be wrought. The beer industry is here to supply a human want, and it is here to stay. Its friends outnumber its enemies ten to one, and it is entitled to intelligent consideration and to a protection from a mistaken or fanatical minority.

Prohibition has failed because it is foreign to the genius of our free institutions and because it has lacked a sufficiently strong ethical basis to insure the necessary public approval and support. Prohibition does not prohibit; it demoralizes. And I say that in its legal and practical consequences this bill means prohibition by act of Congress wherever and whenever any State desires it. In his recent work on constitutional law Professor Tiedeman devotes a chapter to the constitutionality of prohibition laws, and says that in his opinion as a jurist the courts have not followed the law in upholding the various prohibition laws. I mention this merely to show that even in the courts the cause of prohibition is losing caste, just as it is with the public and even with the reformers.

As you know, the most complete and definitive study of the liquor problem ever made is that now being made by the so-called "Com

mittee of Fifty," composed of men like President Eliot, Seth Low, Doctor Peabody, Carroll Wright, and others, and their various reports are an unanswerable indictment not only of prohibition, but of modern temperance methods. The best temperance thought of the day has abandoned prohibition as a way out of Egypt. Men like Bishop Potter, Bishop Magee, Bishop Hall, Doctor Rainsford, Lyman Abbott, and a host of other temperance reformers are outspoken enemies of the prohibition propaganda. Temperance is not an emotional nor even a merely moral question. It is an economic problem, calling for calm and intelligent study with some regard for the facts. The truth, as Professor Atwater puts it, is that "temperance reform has been supported by false arguments until its adherents feel that those arguments are almost inseparable from the cause itself. If the strongest weapon against a doctrine is the truth, it is time we revise the doctrine." Perhaps the best expression of the highest modern thought on the subject I can cite is that of Lyman Abbott, as set forth in a recent sermon; and I surely could not phrase a better argument against this bill.

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My objection," he says, "to prohibitory laws is not that they can not be enforced, but that they ought not to be enforced. Not even the local community has a right to determine that men shall not drink alcohol. * Has a rural community in Maine, which thinks the saloon is an injury, a right to prohibit the saloon to the people of Bangor or Portland, who entertain a different opinion? If so, on what is that right based? It must be based on the supposed right of the majority to impose their conscience on the minority, to determine for them what is safe and right, to act toward them in loco parentis; and this right of the majority to act in loco parentis toward the minority is fundamentally antagonistic to the essential principle of a democracy."

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Aside from all legal objections, this committee will consider well the social and economic viciousness of such a law. There is no demand for such legislation and no real sentiment to sustain it. This kind of interference with individual liberty is foreign to the spirit of our laws and the genius of our civilization.

And this surely is true. The history of civilization, as I read it, sums itself up in the constant struggle of the individual toward greater personal freedom. Liberty has not merely been a shibboleth; it has, consciously or unconsciously, been the very life of the races in their onward struggle. "To pursue one's own good in one's own way," to quote Mr. Mill's famous phrase, means individual liberty; to permit a numerical majority or minority to define the "way" or determine the "good" is tyranny. Perhaps it is a trifle farfetched, but I can not help noting that the ideal of individual freedom has been strongest among the drinking races, and that humanity owes its best heritages to them. The Greek gave us literature and art; the Roman, law, and the hardest drinker of them all, the Teuton, gave us that passion for freedom which has made the Saxon the conqueror of the world. What have the three great races which rejected alcohol-the Arab and the Hindu and the Mongolian-done to equal the work of their drinking rivals?

No law could possibly be more fundamental or far-reaching or more antagonistic to the American ideal of individual rights than is

this bill. The doctrine of the police power has, it is true, been carried very far by judicial interpretation in this country, "but broad and comprehensive as is this power, it certainly can not extend to the individual tastes and habits of the citizen, which are confined entirely to himself." (License case, 5 How., 583.)

but the

In former times sumptuary laws were sometimes passed ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal rights of others, is accepted among the fundamentals of our law. (Cooley's Consti. Limitations, 385.)

Finally, I wish to reiterate that in considering legislation of this character this committee should be guided by the truth, and not by the sentimental hopes or the bitter fanaticism of those who abhor drink as they ahbor the devil. Or, to summarize the whole question in the words of the greatest living authority on the drink question, Mr. Gallus Thomann:

Lawmakers should bear in mind that the use of intoxicants is not a vice, but a perfectly proper enjoyment of great physical, intellectual, and moral benefit to the individual, and of inestimable ethical and material advantage to society; that the abuse of inebriating liquors is a vice, and that, while society is warranted in protecting itself against the effects of this abuse, the method of such protection should not in the least affect the liberty of action of the drinker, but should hold the drunkard responsible. * A very small minority drink excessively, and these, as a rule, are the least useful members of the community.

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The effect of State interference like this is to deprive millions and tens of millions of useful men of their personal liberties and of that which enhances their well-being, and consequently the well-being of the community, in order to rescue from the throes of vice a small minority of weaklings, who, in the absence of drink, would as naturally succumb to any other one of the many vices and passions against which society finds ample protection in its penal laws. Such laws sacrifice the rights and well-being of the vast majority of moderate drinkers for an infinitesimally small minority of drunkards.

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I have no comment to make on many of the statements and representations that have been made during this hearing, but I can not refrain from referring you to high ecclesiastical opinion as to its general value, and I close by reading to you Bishop Potter's opinion of prohibitionists, published in the Outlook, March 11, 1899, as set forth in a letter to Lyman Abbott:

* It is the old situation-as old as the religion of Jesus Christ-with the Scribes and Pharisees on the one hand, the Sadduces on the other, and over and against them the Truth.

No more perfect reproduction of the first named has appeared in our day than the Prohibitionists; et id omne genus-arrogant, denunciatory, ignorant, unscrupulous, and untruthful; holding one meager fragment of truth to their eyes, and denying great and fundamental facts in human nature, in their futile and foolish endeavor to remedy the perversion of human instincts by extirpating them. The grotesque hypocrisy of the prohibition system, from Maine to Kansas, is a sufficient commentary upon their theories. Meantime the endeavors of wiser men and women to better the condition-the homes, the domestic life, the recreations of their less-favored brethren go untouched of these, fit successors of those to whom Jesus said: "Woe unto you, Scribes and Pharisees, hypocrites, for ye bind heavy burdens upon men's shoulders, and grievous to be borne, and ye yourselves will not touch them with the tips of your fingers."

I thank the committee for their attention.

STATEMENT OF MR. ROBERT CRAIN, GENERAL COUNSEL OF THE UNITED STATES BREWERS' ASSOCIATION.

Mr. CRAIN. Mr. Chairman and gentlemen of the committee, it is difficult to add anything to the very full and learned argument which has been made by our friend, Judge Hough, and, as I have had the opportunity to print in the report of the hearings before the committee some of the reasons against the constitutionality of this bill, I will offer only a few suggestions to the committee at this hearing. I had the pleasure of listening to the able argument of Judge Smith, of Iowa, at the last hearing of the committee. In one part of the speech of Judge Smith, in answer to a question by Mr. Gillett, the judge took occasion to say:

You are talking about the constitutionality of this law. We will take care of ourselves if you have not any law that prevents our taking care of ourselves. We are not asking you to take care of us; we are asking you not to interfere with us.

If that is the position of our friends who are asking for the passage of this law, I should take it that the committee would have little difficulty in granting the request as made by Judge Smith. He makes the suggestion that if the committee, and afterwards Congress, will leave himself and his clients and his friends alone, that, at least in the State of Iowa, they will take care of the prohibition question. As I had understood the purpose of this bill, it was, in direct opposition to the statement as made by Judge Smith, that the people of Iowa, according to the views of our friends on the other side, having found it impossible to take care of themselves, had sought the intervention of Congress and asked the aid of Congress in taking care of their laws and the violations of their laws.

Now, gentlemen, it seems to me that it is unimportant in the discussion of this question whether or not the goods shipped from one of the States of the Union into a prohibition State be shipped there either for the purpose of consumption or for the purposes of sale. If the decision of the Supreme Court in the Rhodes case means anything, it means that commerce continues until the goods reach the hands of the purchaser, the consignee. After it has reached the hands of the purchaser it is then for the State law to take hold of those goods, and if those goods are to be sold in violation of any statute of the State, then that violation of statute is the thing that the State must look after. If the goods shipped from New York to Iowa to some man who would desire to purchase them for sale could be seized by the officials of the State of Iowa before they reached the hands of the man who had made the purchase, then the interstate commerce would be destroyed by the officer of the State of Iowa, because the officer of the State of Iowa would be taking hold of those goods while they were still in transitu, and under the decision of the Supreme Court it certainly would be in violation of the Constitution. There seemed to be some doubt, at this first hearing of this committee, as to whether or not the power of Congress over interstate commerce was absolute; as to how far that power of Congress extended, and as to whether or not there could be some question as to the delegation by Congress to the several States of the regulation of the interstate shipment. We suggested from the very first, when this

bill was before the Senate committee, that there could be no question about that, because since the decision in Gibbons v. Ogden it had been acknowledged by all lawyers, as we saw the question, that the power of Congress over interstate commerce was an exclusive and an absolute power. When the opinion in the Northern Securities case was handed down, and you gentlemen of the committee I have no doubt have read it, Mr. Justice Harlan in delivering the opinion of the court, in discussing this question, said.

if, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States; that a sound construction of the Constitution allows to Congress a large discretion "with respect to the means by which the powers it confers are to be carried into execution, which enable that body to perform the high duties assigned to it in the manner most beneficial to the people."

Then he goes on to cite the case of McCulloch v. Maryland, and

says:

The Government is for all; its powers are delegated by all; it represents all, and acts for all, and is supreme within its sphere of action.

Meaning that Congress had that right.

If we are to concede, and it seems to be settled law by all of the decisions of the Supreme Court, that an interstate shipment continues until it reaches the hands of the consignee, and if we are also to take as settled law that the States can not seize those goods until they reach the hands of the consignee, if you pass this bill and give to the several States the right to take hold of the goods before they get to the hands of the consignee, you delegate to the several States of the Union the power over interstate commerce, and from the decision of Gibbons v. Ogden down to this decision in the Northern Securities case, all the decisions are in unison to the effect that that can not be done.

If all other questions are brushed aside, if you brush aside the question which my brother, Judge Hough, has dicussed so ably as to whether the sale is made in the State where the purchase is made or whether the sale is to be made in the State where the delivery is made, brushing all those questions aside, unless you are to override the decisions of the Supreme Court that the power of Congress is an absolute and exclusive power, that it can not be delegated, and that the several States can not take hold of these goods until they reach the hands of the consignee, you immediately place in the hands of the States the control over interstate commerce when these goods have reached the borders of the several States. Can any other construction be placed on this bill?

If you pass this bill its vitality, or efficiency, or force becomes effective only by virtue of some law existing or to be passed in the several States of this Union. The State of Iowa may have one law, the State of Kansas may have another law, and the State of Maryland another law, and so on through all the forty-odd States of this Union. Those States may have different laws. They may provide the machinery by which these goods are to be taken hold of when they reach the border line; but those goods when they reach the border line and before delivery are articles of interstate commerce, and any law

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