The People agt. Berberrich and Toynbee,

of a newly created felony, the court and jury, in such cases, immediately apply the common law principle, and the killing is adjudged to be murder or manslaughter, according to the nature and quality of the crime that the offender was perpetrating at the time the homicide was committed."

There could not be a stronger case to illustrate the rule that newly created crimes are subject to the incidents of the class into which they are introduced, without any express provision to that effect in the statute. By the terms of the prohibitory act, the offence imputed to the defendant was characterized as a misdemeanor. The usage in criminal cases prevailing immediately before, and at the time of, the adoption of the constitution, and to which it refers, was undoubtedly conformable to the provisions of the Revised Statutes, which had been in operation since 1830. (2 R. S. 711, §§ 2, 3.) Pursuant to those provisions, persons accused of misdemeanors had the right, in all cases, to give bail for their appearance at the next court having criminal jurisdiction, which must be either the general sessions or oyer and terminer; and in their doing so, or, what was equivalent, making an offer to that effect, which was refused, a court of special sessions could proceed no further. That, in effect, secured to the accused at their option the right to be tried by a jury of twelve men, and to be exempt from punishment except by their unanimous verdict. That right was denied to the defendant in the case under consideration. If the prohibitory act called for such denial, it contravened the constitutional ordinance, and was so far void; or if it impliedly permitted the continuance of the privilege, it should have been accorded to the defendant on his demand. So that quacamque via data, this objection is fatal to the conviction.

The only remaining question, which I deem it proper to consider, is, whether the act in question, so far as it purports to prohibit intoxicating liquors to be used as a beverage, is valid? The objection urged against that feature of the act is, that it is an exercise of despotic power, calling for an unconstitutional interference with the rights of property. All civilized nations agree in asserting the rights of property, and holding them.

The People agt. Berberrich and Toynbee.

sacred, as essential to the prosperity and happiness of man. Sir William Blackstone says, (2 Com. 2,) that "there is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property, or that sole and despotic dominion which a man claims, and exercises, over the external things of the world, in total exclusion of the right of any other individual in the universe;" and Chancellor KENT well remarks, (2 Com. 319,) that "the sense of property is generously bestowed on mankind for the purpose of rearing them from sloth and stimulating them to action; and so long as the right of acquisition is exercised in conformity with the social relations, and the moral obligations which spring from them, it ought to be sacredly protected. The natural and actual sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution. of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the creations of charity, and the display of the benevolent affections."

There are, undoubtedly, visionary theorists, who advocate the community of property in small societies; but the general sense of mankind indicates that civilized society cannot exist when the right to separate and distinct property does not prevail, or is not sacredly protected. The people of this state have shown their appreciation of the rights of property, in their organic law, by declaring, (Art. 1, p. 6,) that “no person shall be deprived of life, liberty, or property, without due process of law." We are thus as effectually protected in the enjoyment of our property as of our lives or our liberty.

The protection given to property, as well by the sense of mankind as by positive enactment, makes no distinction as to its greater or less utility. It extends to whatever has been held and enjoyed as such, by custom and usages of the country. No power is given to any man, or body of men, to discriminate. We hold our property independently of the varying, and sometimes capricious, estimates of our fellow men. So universal has been the sentiment in favor of the right, and the determination to support it, that

The People agt. Berberrich and Toynbee.

the act in question is, with a single exception, the only instance of an attempt to legislate any species of property substantially out of existence. The exception to which I allude, is the original abolition of slavery by statute. That institution, however, did not exist, nor were slaves considered as property, at common law. If they had been, it might have been a grave question, whether their owners could have been deprived even of such property without compensation. But, at any rate, that was an extraordinary case, having reference to what was generally admitted to be the original rights of man, which the statute was destined to enforce, and cannot be considered as a sanction for the violation of the constitutional protection of property. The protection of any species of property must necessarily extend to its essential and definitive characteristics, especially those which constitute its main value. Otherwise it might be rendered useless in the hands of the possessor, and its protection would be wholly illusory.

One of the essential characteristics of property is its vendibleness, especially for the principal use to which it can be appropriated. That necessarily results from the despotic dominion over it which Blackstone ascribes to the possessor. Chancellor KENT says, (2 Com. 310,) "that the exclusive right of using and transferring property follows as a natural consequence from the perception and admission of the right itself;" and for this he quotes Grotius, (b. 2, ch. 6, § 1.) And again the same learned commentator says, (p. 320, vol. 2,) "The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience and mutual wants." This is so entirely in accordance with the general sentiment of mankind, and the universal practice, that it cannot be disputed. So far as my information or recollection extends, the present is the first and only attempt to interfere with, and prevent the general right of sale of any species of property. That the manner of selling it may be regulated, so long as the right is essentially preserved, there can be no doubt. It is upon this principle that our former laws regulating the sales of spirituous liquors were passed. They were, however, by no means pro

The People agt. Berberrich and Toynbee.

hibitory of the right. Every man was at liberty to sell in quantities exceeding five gallons, and a selected class in any quantity. Upon the same principle sales at auction of goods generally, sales by pedlers, and sales by apothecaries of poisonous drugs, have been regulated, and sales of deteriorated and unwholesome provisions have been prohibited. These were merely police regulations, and it did not interfere with the ordinary sale of any property in its appropriate condition. So, too, it is competent for the legislature to prohibit the abuse of property, so as to make it peculiarly dangerous or deleterious to society.

It is upon this principle that laws have been passed to prevent the storing of gunpowder in cities, to regulate the construction of buildings, so as to prevent unnecessary exposure of lives in crowded places, and to suppress gambling in lotteries or otherwise. In none of these instances is there any interference with the ordinary use of property. There is also a power to prevent or abate nuisances. But to that there must necessarily be a imit. It cannot be extended to the general destruction of any species of property, or of its organic characteristics. If it could go thus far, none would be safe. The use of animal food, tea, coffee, and fruits, each of which is considered by many to be deleterious, might be prohibited. As the legislature has confessedly the power to adopt police regulations, so as to prevent the abuses of property, it may be asked, where are the limits to which it can legitimately be applied, and by whom are such limits to be prescribed? It may be very difficult in many cases to draw the line, but that can be no reason for claiming an unlimited power. The right is simply one of regulation, not of destruction. When an enactment is clearly destructive of a right, and not simply reformatory of its abuses, there can be no question as to its invalidity. There is no reason for claiming discretionary power in such cases. That can be invoked only in cases of doubt. It can be no sufficient reason for acting clearly wrong in any particular matter, that the exact line of separation between the right and the wrong cannot be easily defined.

Upon the whole, my impression is, that the right of property

The People agt. Berberrich and Toynbee.

extends not only to its corpus, but to its ordinary and essential characteristics, of which the right of sale is one; and that it can be controlled only so far as to prevent its abuse, without destroying such characteristics.

It must be conceded, that an unlimited and unrestricted power to take the life, the liberty, or the property of our fellow man, is despotic. And it matters not whether it is lodged in the hands of one or many, or whether the depositories are elective or hereditary, the character is the same. It was contended, on the argument by the counsel for the people, that the legislature of this state possess despotic legislative power, by reason of the general constitutional grant. To that I cannot assent. It is undoubtedly true, that absolute power exists originally in the people constituting a distinct and separate community. It is competent for them to establish for themselves a despotic government in one man, or many men, if they should choose to do so, although an intention to confer absolute power can never be inferred, and certainly not in a country claiming to be free. But the people of this state, when they entered the Union, deprived themselves of the power of establishing any other than a republican form of government. (Const. of the U. S., art. 4, § 4.)

There is not, perhaps, any very accurate description of a republican form of government; but it is generally understood that it cannot be subject to a despotism in any of its public functionaries. The man who is the subject of despotic power, and I care not whether it be in the legislative or executive department, is a slave, and not a republican. Liberty and despotism can never exist together. No general grant would confer an unlimited power over the lives, the liberty, or the property of the citizen, It was well remarked by Judge STORY, in Wilkinson agt. Leland, (2 Pet. 657,) that "the fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred, At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them-a power so repugnant to the common principles of justice and civil liberty