Chapter XCIII: Section CCXXXV: Difficulty of Enforcing Sumptuary Laws

The impossibility of enforcing sumptuary laws has been most strikingly observed, where it has been attempted to suppress the consumption of popular delicacies in the first stages of their spread among the people. Thus, an effort was made in this direction in the sixteenth century, as regards brandy; in the seventeenth, as regards tobacco; in the eighteenth, as regards coffee; all which three articles were first allowed to be used only as medicines.[235-1] When governments discovered after some time the fruitlessness of the efforts, they gave up the prohibition of these luxuries and substituted taxes on them instead.[235-2] Thus an effort was made to combine a moral and a fiscal end. But it should not be lost sight of that the lower these taxes are, the greater the revenue they bring in; that is, the less the moral end is attained, the more is the fiscal end. Even Cato took this course. His office of censor, which united the highest moral superintendence with the highest financial guidance, must of itself have led him in this direction.[235-3] In modern times the most important excises and financial duties of entry have been evolved out of sumptuary laws. Even the Turks, after having long tried to prohibit tobacco-smoking in vain, afterwards found in the duties they imposed on that plant a rich source of income. That such taxes are among the best imposed, where they do not lead to frauds on the government, become excessive, or diminish consumption to too great an extent, is universally conceded.

Beyond this there is, on the whole, little left of the old police regulations relating to luxury. Thus, governmental consent is, in most countries, required for the establishment of places where liquors are sold at retail, for the maintenance of public places of amusement, for shooting festivals, fairs, etc.; and this consent should not be too freely granted. The police power prescribes certain hours at which drinking places shall be closed. Games of chance are wont to be either entirely prohibited or restricted to certain places and times (bathing places), or are reserved as the exclusive right of certain institutions, especially state institutions. The object of this is, on the one hand, to facilitate their supervision, and on the other, to diminish the number of seductive occasions. Here, too, belongs the appointment of guardians to spendthrifts, which is generally done on the motion of the family by the courts; but which, indeed, occurs too seldom to have any great influence on the national resources, or on national morals.[235-4]

[Footnote 235-1: Hessian law that only apothecaries should
retail brandy, 1530. English tobacco laws of 1604; _Rymer_,
Foedera, XVI, 601. Papal excommunication fulminated in
1624, against all who took snuff in church, and repeated in
1690. A Turkish law of 1610 provided that all smokers should
have the pipe broken against their nose. A Russian law of
1634, prohibiting smoking under penalty of death. In
Switzerland, even in the 17th century, no one could smoke
except in secret. Coffee had a hard struggle even in its
native place. (_Ritter_, Erdkunde, XIII, 574 ff.) Prohibited
in Turkey in 1633, under pain of death. _v. Hammer_,
Osmanische Staatsverwaltung, I, 75. In 1769, coffee was
still prohibited in Basel, and was allowed to be sold by
apothecaries only, and as medicine. (_Burkhardt_, C. Basel,
I, 68.) Hanoverian prohibition of the coffee trade in the
rural districts in 1780: _Schlözer_, Briefwechsel, VIII, 123
ff.]

[Footnote 235-2: According to _v. Seckendorff_,
Christenstaat, 1685, 435 seq., a decidedly unchristian
change.]

[Footnote 235-3: _Livy_, XXXIX, 44. In Athens, too, the
highest police board in the matter of luxury was the
areopagus, which was at the same time a high financial
court. Sully transformed the prohibition of luxury in regard
to banquets into a tax on delicacies. Similarly, in regard
to funeral-luxuries, at an earlier date. (_Cicero_, ad.
Att., XII, 35.)]

[Footnote 235-4: Customary even in the early Roman republic,
and adjudged _exemplo furioso_. (_Ulpian_, in L. 1 Digest,
XXVII, 10.) The immediate knights of the empire were in this
respect very severe towards those of their own order. See
_Kerner_, Reichsrittersch. Staatsrecht, II, 381 ff. _Sully_
ordered the parliaments to warn spendthrifts, to punish them
and place them under guardianship. (Economies royales, L,
XXVI.) According to _Montesquieu_, it is a genuine
aristocratic maxim to hold the nobility to a punctual
payment of their debts. (Esprit des Lois, V, 8.)]