To these pure springs our judiciary come to drink in the divinity which alone doth hedge a free people. Fresh from a successful struggle against the despotic exercise of legislative and executive power, our forefathers baptized these principles in blood, and taught them to their children. They were household words, familiar as the air they breathed, and better understood; and now, within one short century, we are to be asked, on our next anniversary, "What mean ye by this festival?" Which of us shall answer the question? Who will dare to point to the Declaration of Independence to the Bill of Rights-the Constitution, if the act of the ninth of April holds within its folds the mangled and bleeding bodies of these principles, to be consecrated by a judiciary admitting itself equally within the grasp of the legislative power?

Need we turn to the dusty times of civil and judicial history for interpreters and authority? Does not every pulse, now quickened with the recollection of a glorious ancestry, respond to the truth that civil and political liberty may be crushed under the foot of arbitrary despotism, but that not one jot or tittle of these spiritual essences of freedom can be destroyed? My opinion is, that this law is unconstitutional, and must be so declared.

1st. It disfranchises the citizen. Franchise and liberty are synonymous terms. Civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society. Political liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws, (and no further,) as is necessary for the advantage of the public. Liberty must be limited and regulated in order to be possessed. The degree of restraint it is impossible to settle; but it ought to be the constant aim of every wise public council, to find out by cautious experiments and rational cool endeavors, with how little, not how much, of this restraint community can subsist.

It destroys the value of an article recognized in all ages as property, the right and liberty to sell which has never been denied. It disqualifies the "peers" of the party to be tried for a violation of the act. It at once disfranchises the dealer and. the juror by whom the dealer might be tried. The last restingplace of human rights, the "jury-box," is invaded in advance, and upon the banner unfurled to the astonished people is emblazoned the words: "A perjured and a drunken people.'

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2nd. It violates the Constitution in the right of trial by jury. Who are to be our peers? The men that love despotism and tyranny better than law or liberty, the intemperate fanatic, the disqualified "jurors" under the act, or the qualified jurors under the Constitution. When the act disqualifies my peers in advance, it deprives me of the right of trial by jury secured to me by the Constitution. These provisions were intended that the stream of power should return in rivulets through the jury-box to the original source and fountain of all legitimate authority-the peo

ple. Through this alembic it is to be purified from the turbid and arbitrary elements of despotism and tyranny.

3rd. It again violates the Constitution in imposing excessive fines, and in inflicting unusual punishments. If the sudden disruption of a business, acknowledged for centuries to be lawful, and the forfeiture of the property, acknowledged to be such by the act itself, shall not be held to be an excess of fine and the infliction of unusual punishments, then the establishment of the judicial power will be, what is gravely contended for, an idle mockery.

4th. If the inhabitants of the state are, or so large a part of them have become, so besotted, and so unfitted to take care of themselves, that the Legislature, under pretence of taking care of the public health and the public morals, must needs break up and prohibit the sale of liquor, to prevent its being used as a beverage, then they take private property for public use, and must make just compensation for it. It may be said that they do not take the property, they only prohibit its sale the value of property depends upon its saleable and transmissable quality, the essence of the right to property is the right of disposition by barter, sale, or exchange; when the Legislature takes away the right of disposition, which in a state of civil or political society almost alone gives value to property, then they invade the right to private property, and as in the present case they take this right for the benefit of the public, they are constitutionally bound to make just compensation.

I believe my answer covers all the questions submitted for my opinion. To speak of my views of this temperance question, or of the policy of this act, or to vindicate the character of the profession to which I am proud to belong, from many unjust aspersions made in advance, that our opinions would be made to suit your wishes, notwithstanding our honest convictions to the contrary, would be out of place here. I have a right to say, and I feel it my duty so to say, that I have an abiding confidence in the strength, firmness, courage, and purity of our judiciary. My experience, for a period rapidly approaching half a century, has confirmed me in the belief, that in their hands the just and constitutional rights of the people are safe from the inroads of encroaching governmental power. A due submission on the part of the people, and a perfect obedience to judicial interpretation and decision upon all questions arising under this law, whatever they may be, is the first and paramount duty of every good citizen; and I trust that nothing that has fallen from me will be construed into an idea that I would justify personal resistance. If the Constitution and principles of freedom fail us underjudicial authority, the only legitimate remedy left is an appeal to the ballot box, and through its instrumentality a correction of all such legislative evils as the popular voice may think it fit to be administered.

New York, June 18, 1855.

J. R. WHITING.

OPINION OF

GEORGE WOOD, ESQ.,

ON THE PROHIBITORY LIQUOR LAW.

THE act of the Legislature of this state, recently passed, for the prevention of intemperance, pauperism, and crime, has been so fully discussed in the opinions of different gentlemen upon this subject, and accompanied with the citation of so many authorities, that I do not think it advisable, at this time, to enter largely into the discussion of it.

I shall confine myself to giving, in my opinion, the general results of the examination I have made of the case, with a few explanatory remarks.

This is a highly penal statute. It creates offences which did not exist in the law before, and is lavish in inflicting fines, imprisonment, and forfeiture of property.

I shall first consider this case on the supposition that all liquors, as well those imported as those manufactured in the country, are embraced in the provisions of the law.

I think this act, if carried out, will amount in effect and substantially to the general destruction of this kind of property.

It prohibits the sale of liquors for all purposes except for medicinal, manufacturing, and sacramental uses. These exceptions are comparatively trifling in amount. They form a mere mini

mum.

This kind of property is manufactured and imported, bought and sold to be used as a beverage, and when no longer allowed to be used in that way, it is rendered, in a great measure, worthless as an article of merchandise and traffic. Under these circumstances, it is questionable whether a dealer in the article could afford to pay the storage for keeping it.

The power of disposal is an essential ingredient in the idea of property.

Property imports dominion, use, control. In a civilized country; indeed in any country advanced beyond the hunter state, the power of disposal is all important. No man would acquire this property in the way of business as an article of exchange for the ordinary uses to which it is applied, unless he could sell it.

A manufacturer or importer don't expect to consume himself, or in his own family, his merchandise. Every one must see,

then, that the great object of this act is, by destroying the general power of disposal of this property for its ordinary uses, to destroy the property itself, and it must be so held in law. This minimum of exception will only serve to establish the general rule and object, which is destruction.

The question then arises, can the Legislature destroy this property by this act under the circumstances of the case? It will, I think, be conceded by every constitutional lawyer, that they cannot pass an act arbitrarily to destroy any kind of property without some legitimate ulterior object to be obtained. Suppose they should pass an act to destroy all the superfine broadcloths in the state-such an act would cut to the bone. It would be absolutely void. It would be so, because it would impair vested rights.

Suppose the act should go further, and prohibit the future acquisition of such property-it would, then, also be void. It would, in that case, deprive the citizen of the inalienable right to 66 the pursuit of happiness," or, in other words, to acquire by his industry the comforts of life. It would deprive him of the liberty and privilege of acquiring property. This liberty was procured in England by Magna Charta and the provision therein is imbedded in our state Constitution.

The right to property is a vested right, and cannot be arbitrarily taken away without impairing the obligation of contracts.

It is said the state Legislature, in its sovereign capacity, can regulate property. This is true. And under this head they may restrict and control its use, regulate the mode of sale, and even prohibit its sale altogether. They may, also, direct its destruction at once and absolutely. But all this must be done, and can only be done, for some legitimate ulterior purpose within legislative competency. They may do all this when necessary for the preservation of life or health-of religion or morality. But, in a free country, where property is protected under a paramount fundamental law, the necessity must clearly exist.

When that necessity does not exist, the fundamental law must prevail-must protect property from the iron grasp of arbitrary power.

There is, and in the nature of the case there must be, a line of demarcation between this legislative power on the one hand, to impair and even destroy property for those ulterior objects above alluded to, and on the other hand, the power of the judiciary, under the fundamental law, to protect the citizen in his property against hasty or ill-advised legislation, aiming at the destruction of property when that necessity does not exist.

By whom is this line to be drawn? The advocates of arbitrary legislative power say it must be done exclusively by the Legislature that they are the sole judges. This would be rendering the fundamental law, as to its action upon the Legislature, a dead letter. When the wish to destroy property by sumptuary

laws, all they have to do is to aver, by way of enactment, that it is useless, or noxious, and the hands of the judiciary are tied. It is said they are sovereign; but their sovereignty cannot screen them, when their acts are brought to the touchstone of the Constitution and the supervision of the judiciary, who are its guardians.

The Legislature is, of course, to decide for themselves in the first instance, and if there is a probable ground, the averment that the property is a nuisance or otherwise injurious, so as to present a foundation for the restriction upon its use or for its destruction, their decision and action will be final and conclusive upon the judiciary. But, if there is no such probable ground, the judiciary should pass upon the subject accordingly, whenever the matter is brought regularly before them.

By way of illustration, take the cemetery cases in fifth and seventh Cowen's Reports. Certain lots had been used as burying grounds in the city of New York for a long period. In process of time the population became so dense as to render the use of the land for such purposes prejudicial to health; so much so as to amount to a nuisance. The corporation of New York, by ordinance under the authority of the state government, prohibited all future burials. This act of the corporation was the same, in effect, as if it had been done by an act of the Legislature. The judiciary would see a cause for such legislative action. The matter of fact thus based on probability would be deemed by them final and conclusive. Neither the Legislature nor the judiciary, in such cases, act upon what would be called legal evidence in a court of law, but upon that general information acquired in relation to such subjects by officers acting in a public capacity. But suppose the Legislature, under pretence of a nuisance or some other ground, should prohibit interments within fifty miles of a city, would the judiciary sustain it? Clearly not. They would treat it as an arbitrary interference with private rights, and declare it unconstitutional. In the first two cases alluded to, the ordinances were sustained, because, although vested rights were incidentally impaired, they must give way to the public security. But in the other supposed case, there would be no such mischief existing or to be guarded against. The arbitrary legislation must yield to the protection of property under the fundamental law.

I might illustrate the subject by referring to a class of cases under another branch of the Constitution. Property cannot be taken for public uses without making compensation to the owner. The Legislature takes property and provides what they deem in their legislative capacity a just compensation; but the judiciary have repeatedly held such compensation in particular cases to be inadequate, and declared the act void. They do it because they must exercise a supervisory control over legislative action when necessary to protect private rights under the Constitution.