Smith discusses Gerrit Smith’s arguments for prohibition and the reply by Lysander Spooner, as published in a book by Dio Lewis, Prohibition: A Failure.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

Gerrit Smith became an abolitionist during the mid‐​1830s, after becoming disillusioned with the Colonization Society, which advocated sending former slaves and even free blacks to Africa. Smith thereafter became a major figure in abolitionism. He was a primary organizer of the Liberty Party in 1840. Later, as a member of “The Secret Six,” Smith helped to finance John Brown’s raid on Harper’s Ferry, Virginia, in 1859. In addition, after Brown was captured and sentenced to hang, Smith may have been involved with Lysander Spooner’s plan (which never got off the ground) to kidnap Governor Wise of Virginia and hold him as ransom in exchange for Brown’s release.

Smith, one of the richest men in New York, donated a good deal of land to black families so they could become self‐​sufficient. Altogether his contributions to abolitionism and to the cause of African‐​Americans amounted to millions of dollars in land and money.

As I noted in my last essay, in most respects Smith was a consistent classical liberal. He believed in free trade and equal rights for women and blacks (including the right to vote); he was a tireless critic of war and capital punishment; he called for the legalization of interracial marriages; and he argued in favor of homesteading, maintaining that land rightfully belongs to the people, not to the government. The most notable exception to Smith’s pro‐​freedom philosophy was his vigorous advocacy of prohibition.

Smith, like many of his colleagues, was involved with the temperance crusade before his involvement with abolitionism. In his early years he appears to have advocated only voluntary temperance (though this is unclear to me), but he later called for the legal prohibition of alcoholic drinks. Smith’s efforts to reconcile individual freedom and a limited government with prohibition presents an interesting case study.

Let’s begin with Smith’s position on the proper functions of government. In “The True Office of Civil Government,” a speech Smith delivered in April 1851, he said:

The legitimate action of civil government is very simple. Its legitimate range is very narrow. Government owes nothing to its subjects but protection. And this is a protection, not from competition, but from crimes. It owes them no protection from the foreign farmer, or foreign manufacturer, or foreign navigator. As it owes them no other protection from each other than from the crimes of each other, so it owes them no other protection against foreigners than from the crimes of foreigners. Nor is it from all crimes that government is bound to protect its subjects. It is from such only, as are committed against their persons and possessions. Ingratitude is a crime; but as it is not of this class of crimes, government is not to be cognizant of it.

No protection does government owe to the morals of its subjects. Still less is it bound to study to promote their morals. To call on government to increase the wealth of its subjects, or to help the progress of religion among them, or, in short, to promote any of their interests, is to call on it to do that which it has no right to do, and which, it is safe to add, it has no power to do. Were government to aim to secure to its subjects the free and inviolable control of their persons and property—of life and of the means of sustaining life—it would aim at all that it should aim at. And its subjects, if they get this security, should feel that they need nothing more at the hands of government to enable them to work their way well through the world. Government, in a word is to say to its subjects: ‘You must do for yourselves. My only part is to defend your right to do for yourselves. You must do your own work. I will but protect you in that work.’

Here we have a summary of the classical liberal doctrine of limited government. So how did Smith manage to justify prohibition within this framework? In one of his many speeches on prohibition, Smith denied that he was calling for governmental interference in personal morals.

Perhaps it will be asked if the duty of abolishing the traffic in intoxicating drinks would not be outside of the province of government. I answer that it would not. I ask government to abolish this traffic, not because I would have government enact sumptuary laws—for I would not. Nay, I go so far as to say, that if the drinkers of intoxicating liquors would do no more than kill themselves, I would not have government interfere with their indulgence. It is murder, not suicide, that I would have government concern itself with. Nor do I ask government to abolish this traffic because I hold that government is charged with the care of the public morals. As I have already shown you, I hold to no such thing. Why I ask government to abolish this traffic is because it is fraught directly, immensely, necessarily, with wide and awful peril to person and property. Neither property nor life is safe from the presumption, the blindness and the fury of the drunken maniac. The drunken driver upsets the stage. The drunken engineer blows up the steam boat. It is a drunkard who has ravished our wife or daughter or sister. It is a drunkard who has burned our dwelling. It is a drunkard who has murdered our family. What is a crime then, if the traffic in intoxicating drinks is not one? And what crime is there, from which government should be more prompt to shelter the persons and possessions of its subjects.

While serving a single term in the House of Representatives (Dec. 1853‐​Aug. 1854), Smith delivered a major speech calling for prohibition in Washington, D.C. Here he repeated his claim that he was not interested in regulating the personal behavior of American citizens. The regulation of morals is not a legitimate function of government. Indeed, the government should not enact prohibition for the sake of temperance. The purpose of prohibition is to prevent crimes against person and property, and temperance is simply a byproduct of this legitimate function of government.

I hold, that the suppression of the sale of intoxicating drinks is indispensable to the protection of person and property; and is, therefore, the manifest duty of Government. At the same time, I admit, that the suppression is important, yes, indispensable, to the success of the cause of temperance. Now, must Government forbear the suppression, in order to avoid rendering an incidental benefit to the cause of temperance? Surely, not for that reason, all will say. But I shall be called on to prove, that such suppression is needful to the protection of person and property. I hold, that it is, because the sale of intoxicating drinks is, by far, the most fruitful source of pauperism and madness—nay, more fruitful of these evils than all other sources put together.

Smith’s speeches on prohibition are laden with the usual lurid accounts of how drunkards commonly commit murder, rape, arson, robbery, and sundry other crimes. (Lysander Spooner had some caustic remarks about this claim, as we shall see.) In short, Smith argued that drunkards constitute an imminent threat to the persons and property of innocent people, so the government may prohibit liquor as a means of protecting the rights of persons and property. Unlike the “ultras” in the temperance movement, Smith did not believe that beer and wine should be included in the ban on liquor, but how did he deal with moderate drinkers? Why should moderate drinkers who do not commit crimes be legally prevented from enjoying this activity? Smith’s argument is even weaker than his basic case for prohibition. Moderate drinkers, he argued, encourage excessive drinkers by persuading them that people may drink without becoming drunkards. Moderate drinkers serve as inducements that lead many down the path to perdition.

The most effective reply to the arguments of Gerrit Smith and other prohibitionists was written by the great libertarian Lysander Spooner. This was surely no accident. As a prominent abolitionist, Spooner was well aware of the high percentage of his fellow abolitionists who also advocated prohibition, and he got his chance to respond in 1875, when he was asked by Dio Lewis to contribute a chapter to Prohibition: A Failure: or, The True Solution of the Temperance Question.

Dio Lewis, a homeopathic physician from Boston, was an avid believer in temperance but also a severe critic of legal prohibition. Only voluntary persuasion is moral and effective in reforming alcoholics, according to Lewis. His book is valuable in its own right, and I shall discuss his perspective in my next essay. For now suffice it to say that Lewis agreed with Spooner’s libertarian political philosophy, including his distinction between vices and crimes.

Part Second of Lewis’s book—“Vices are not Crimes: A Vindication of Moral Liberty”—was written by Lysander Spooner, and it was destined to become one of the most celebrated essays in the history of libertarian thought. In a note introducing this part, Lewis wrote:

In this argument, the distinction between vice and crime is fundamental. It is important that this distinction should be stated tersely, and in the technicalities and formulas of the lawyer.

I have, therefore, requested a legal friend to do it for me. And he has kindly contributed the following essay, which seems to me to cover the whole ground, and to show the correctness of the principle in all its applications. It seems to me to be not only a clearly legal statement of the question, but also a truly philosophical view of a man’s relations to government, and to his fellow‐​men; and to show that on no other principle can there be any such thing as personal liberty, or rights of property, except such as mere arbitrary power may see fit to concede.

Although Lewis did not mention Spooner by name as the author of “Vices are not Crimes,” the identification was later made by Benjamin Tucker, the anarchist writer and publisher who was a close friend of Spooner for many years. Shortly after Spooner’s death in 1887, Tucker published a tribute in Liberty, “Our Nestor Taken From Us” (May 28, 1887), in which he wrote that “the long argument against prohibition entitled “Vices are not Crimes” embodied in Dio Lewis’s book on the temperance question was Mr. Spooner’s work.” Moreover, Lewis had discussed his friendship with Spooner in an earlier book on stomach ailments. I shall discuss their relationship and the arguments of Spooner and Lewis against prohibition in my next essay.