1923 Seventy-five Years Ago

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On May 4 New York State’s legislature repealed the Mullan-Gage Act, which had incorporated the provisions of Prohibition into state law. Legally, repealing the act meant little; the Eighteenth Amendment to the federal Constitution still outlawed the sale or possession of liquor. As a practical matter, however, the repeal placed the main burden of enforcing Prohibition on about 250 federal agents instead of 25,000 state and local officers. In much of the state Prohibition would effectively be dead except as an excuse to collect graft. New York was not the first state to repeal its enforcement laws, but as the nation’s most populous state, it carried the greatest weight.

After considering the bill for four weeks, Gov. Alfred E. Smith signed it on June 1. He sternly warned that “this repeal does not in the slightest degree lessen the obligation of peace officers of the State to enforce in its strictest letter the [federal] Volstead act.” Few people were fooled. While dry sentiment remained strong upstate, the people of New York City had already made clear their contempt for Prohibition. Since the passage of Mullan-Gage, a proponent of repeal charged, thirteen thousand indictments under the act had resulted in only eighteen convictions. In May 1923 alone, said Manhattan’s district attorney, six hundred grand jury cases had yielded only forty-seven indictments.

Some observers thought that signing the bill would harm Governor Smith’s chances of winning the Democratic nomination for President, especially in the South. Reaction there was predictably hostile, but the bill turned out to have hidden charms for at least one Southern newspaper. Editorialists around the country had invoked Civil War days in discussing the repeal. “The opening gun at Fort Sumter did not echo a more outright defiance,” said the Auburn, New York, Advertiser-Journal , while the Memphis Commercial Appeal called the act “very close to the South Carolina nullification of 100 years ago.” With these considerations in mind, the Richmond Times-Dispatch applauded the Empire State rebels, crowing that “State sovereignty had won a notable victory” and that Smith “had stood out against every assault upon the right of a free people to govern themselves after their own fashion.”

Meanwhile, on May 9, Judge John C. Knox struck down a federal law that limited doctors to prescribing one pint of liquor for a patient every ten days. As long as liquor was legal for medicinal purposes, he ruled, Congress could not restrict doctors’ judgment in prescribing it. The decision opened up a potentially huge loophole, since an Illinois official had recently estimated that half the liquor prescriptions written in his state were bogus. As one lawyer told The New York Times , there was “no reason why a physician, in the legitimate exercise of his discretion, should not hold a man needed a highball or a glass of wine or beer as a stimulant after a hard day’s manual work or nervous strain.” The paper suggested Wall Street stockbrokers as prime candidates for medicinal cocktails.

Elsewhere the international maritime industry grappled with a recent Supreme Court decision that barred ships entering American ports from carrying alcoholic beverages. British transatlantic lines announced plans to supply their vessels with only enough liquor for the westbound voyage; any leftovers would be tossed into the sea at the three-mile limit. And in France sailors threatened a strike unless they continued receiving their daily two liters of vin rouge ordinaire , to which French maritime law entitled them, while in American waters.