People v. Vassar

Philip Berberrich, the defendant in the first of these actions, was arrested under the act of the 9th of April, 1855, entitled “An Act for the Prevention of Intemperance, Pauperism, and Crime,” charged with having in his possession, with

Thomas Toynbee, the defendant in the other action, was also arrested under the same act, without warrant, by John Matthews, a police officer, and brought before D. K. Smith, a police justice of the city of Brooklyn, and there charged with being in the act of selling intoxicating liquor, to wit, one glass of brandy; and also with having in his possession other intoxicating liquor, to wit, champagne wine, with intent to "sell the same. The wine was seized by the officer. At the trial before the justice, without a jury, sitting as a court of special sessions, Toynbee was found guilty, and sentenced to pay a fine of $50, with $5.86 costs, and to be committed until such fine and costs be paid, for a period not exceeding fifty-six days.» It was also adjudged that the liquor'1 seized be forfeited, and a warrant issued for its destruction. The defendant appealed to the general term of this court; and thus we have the principal questions which arise upon the construction of the act—its force and obligation as a law—presented for the consideration and judgment of this court.

The object to be effected by the statute under which these proceedings are had, must be ascertained from an examination of its various sections—twenty-six in number. If its office is one of mere regulation—to prescribe by whom, and to whom, and at what places, liquors in certain quantities may be sold—then it does no more than the excise law, which it is thought to supersede; and although prejudicial to existing interests, and may subject certain classes to some privations and inconveniences, it is nevertheless a law of binding obligation, which the people must obey, and the tribunals of justice" enforce. If, however, its office and purpose is greater and more comprehensive than mere regulation: if it aims at prohibition—prohibition of sales as well as of general and ordinary uses, to an extent which deprives the subject of

Section 1 forbids the sale, and the keeping for sale, or with the intent to sell, except in the cases enumerated in the subsequent sections, and also in the cases mentioned in the last clause of the same section, which clause is supposed to be of doubtful import. The sale excepted from the prohibition of the first section, other than those in the latter clause, are sales to authorized venders, and sales by them for mechanical, chemical, and medicinal purposes, and of wine for sacramental uses: also sales of cider in quantities not less than ten gallons, sales of alcohol by manufacturers, of wine from grapes grown by the seller, and of foreign liquor in the original packages to authorized venders. Section 4 declares offences against the act misdemeanors, and provides for their punishment by fines and imprisonment. Section 5 designates the officers who shall have cognizance of such offences, and prescribes the form of the proceedings and of the trial. Sections 6 and 7 contain what are called the search and seizure clauseand section 10 provides

The owner may interpose a claim to the liquor seized pursuant to the provisions of section 7, but he must first purge himself, under oath, of any design to disobey or evade the law, before he can be noticed or heard. Section 16 deprives the owner of his right of action to recover the value of any liquor sold to a purchaser, or taken, detained, or destroyed by a wrong-doer, unless he shall prove that such liquor was sold according to the provisions of the act, or was lawfully kept and owned by him. And section 17 declares, that upon the trial of any action to enforce the penalties and forfeitures, proof of a delivery shall be deemed evidence of sale, and proof of sale shall be sufficient to sustain the averment of unlawful sale. Section 25 declares all liquors kept in violation of any provisions of the act a public nuisance.

The abatement of public nuisances is one of the remedies by the act of the party, which the law concedes to any person injured; and he may proceed to the removal and destruction of the nuisance without the process or judgment of any court. (3 Black. Com. 5.) So that if this clause is to have any effect, it can be none other than to invite and justify depredations upon the proscribed article. These provisions are vindictive. They are novel and unusual. If we except some few states of the confederacy, who have recently entered upon a similar course of legislation, they have never before found a place in the written code of a ciyilized country. They are designed to work a forfeiture of goods—a deprivation of liberty and property—by means unknown to the common law. They set aside the just and humane rules of evidence, approved by time and sanctioned by sound policy. They assume a delivery to be a sale, and proof of a sale sufficient to sustain an averment of unlawful sale. And they refuse to notice or hear a citizen in defence of his own property, unless he first submits to take

It awakens strange emotions, in this age of progress and improvement, to behold enactments like these embodied amongst the written lawrs of a people distinguished for their moderation, their moral excellence, their love of justice, and their ready perception of the distinction between right and wrong; a people of Anglo-Saxon lineage, versed in the jurisprudence of Coke and Blackstone, and Kent and Story, and who are proud to trace the fundamental principles of their government upward through the revolutionary struggles of 1776 and 1688, the conflicts and trials of the great rebellion, back to the conferences of the barons at Runnymede.

Impressed by the novel and extraordinary features of the act, and the doubts suggested by its perusal, I turn to the organic law, as the true test of legislative power, and regardless, for the time, of the subordinate questions involved in the controversy, proceed to inquire whether its provisions do not fall within the prohibitions of the constitution. I shall assume, for all the purposes of this argument, that the prohibitions of the act extend as well to liquors which are the growth and manufacture of foreign countries, as to those which are of domestic origin. Indeed, if we look at its title—to which resort maybe had to remove ambiguities when the intention of the lawgiver is not plain—and read the closing sentence of section 1, (which is thought to exclude foreign liquors,) in connection with that part of section 22 which declares that it shall not be, construed “ to prevent the importer of foreign liquor from keeping or selling the same to any person authorized by the act to sell such liquors,^ the intention of the legislature to include both kinds can hardly admit of a doubt. The exception upon which the uncertainty arises proceeded, doubtless, from a desire that the law should conform to the decision in Brown agt. The State of Maryland, referred to hereafter. And the obscurity and want of precision in the language employed, must, upon the usual rules of construction, yield to the intention, when that can be ascertained from an examination of the law itself.

The present constitution was adopted in 1846. At that time, the term “infamous crime” was, and still is, defined (in the 2d vol. Revised Statutes, 587, § 31,) to include every offence punishable with death or by imprisonment in the state prison, and no other. Such is also the statutory definition of felony. The framers of the constitution must have understood, and intended that others should understand, the term in the legal sense then given to it. And it does not embrace the offence created by the act under consideration. It is not, therefore, a valid objection, that the defendants were impleaded and put upon their trial without the indictment of the grand jury.

We have already seen that the object of the law is prohibition. For general and ordinary uses—for all but a few special purposes—liquors having intoxicating properties are to be banished from society, and neither bought nor sold. The trades and employments connected with their importation, manufac

It is worth while, before we proceed further, to inquire what the proscribed article or thing is—to consider its qualities and uses, and whether it is invested with the attributes of property, so as to entitle it to the protection of the constitution.

The faste for intoxicating drinks is thought to be an instinct of our nature—an operation of the principle of organized life, and not an artificial appetite or desire peculiar to races or tribes, and induced by habit, or climate, or other external influences. History and tradition corroborate the results of chemical and physiological investigation. With the earliest Hebrews, the most ancient Egyptians, with the refined and resolute Romans, wine was the favorite beverage—if not a part of the customary food.

Among the nations whose empires were upon the shores of the Mediterranean and its adjacent seas, long before the Christian era, the fruit of the vine and the olive, together with the cereal grainsj were the staple products of agriculture, and the principle articles of trade and commerce. “ Savage and civilized tribes, near and remote—the houseless barbarian wanderer, the settled peasant, and the skilled citizen—all have found, without intercommunion, through some common and instinctive process, the art of preparing fermented drinks, and of procuring for themselves the enjoyments and miseries of intoxication.

Should these facts suggest the probable result of movement to quench an appetite so prevalent and so deeply seated, by interdicting the use of the means which a wise and beneficent Providence has everywhere furnished for its gratification, they also show that whenever and wherever man rises above the savage condition, and begins to exhibit the rudiments of civilization, intoxicating drinks, and the fruits and grains from which they are expressed or extracted, are among the first things

Chemical and physiological science must determine whether alcohol, the essential element of intoxicating liquors, is food for the ihvigoration, or poison for the destruction, of the human system. The law is only concerned to know whether they fall within the catalogue of things which it recognizes as property. I find no. definition of property that does not apply to intoxicating liquor. It has been separated from the common stock of nature for private use. It is that over which man may exercise absolute dominion, to the exclusion of every other person. By many, it is regarded as an article of dietby all, as one of trade. It is bought and sold, lost and acquired, like other property. The law in question treats it as property— authorizes its sale under certain limitations and for certain prescribed uses. And when it speaks of its forfeiture, it means a forfeiture of the right of property. In every sense of the term it is property, endowed with the same rights, and subject to' the same measure of control, as other property, and no more.

The learned counsel for the people, in the case against Toynbee, insists that the legislative department of the state, being founded upon the model of the English parliament, has power, to declare and limit the uses to which property may be applied, and when it shall cease to be property. This power, he argues, results, 1. From the express grant of the constitution; 2. From the general illimitable nature of legislative power required for the ends of society; 3. From being co-extensive with the law-making power in a democracy; and, 4, From the fact that discretion, legislative and judicial, is in its nature exclusive, and subject to no control. This, doubtless, is a true exposition of the power of the parliament of Great Britain, which is said to be “ so transcendent and' absolute that it cannot be confined, either for causes or persons, within any bounds.” So thought Lord Coke. (4 Inst. 36, and Black. 1st. vol. Com. 140.) Such also is the opinion of Chancellor Kent, (1 vol. Com. 448,), in his remarks upon Coke’s expression in Bonham’s case, and

I decline to enter that field of inquiry, because, for present purposes, and indeed for any purpose designed to secure property, and liberty, and life, from aggression and misrule, the written limitations will be found amply sufficient, if expounded and applied in a liberal and resolute spirit. They come down to us from magna chanta, and are sanctioned and approved by the wisdom and experience of near seven hundred years, and under our system are intended to save absolute, inherent rights, from the force of legislative acts which interrupt their enjoyment or impair their value.

Among the absolute, inherent rights of persons, Mr. Blackstone, (C om. vol. 1, 138,) enumerates the right of property, which “ consists (he says) in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. And by a variety of ancient statutes it is enacted that no man’s lands or goods shall be seized into the King’s hands against the great charter and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law.” The words “ by the laws of the land,” and “by course of law,” here referred to, and the words “ due process of law,” found in the 6th section of the 1st article of the constitution, are synonymous, and have the same legal import and effect. We shall presently see what this is.

England has no written constitution, and therefore parliament is said to be transcendent in its authority. The provisions of the great charter, and the acts of later times, for the protection of life, liberty, and property, are statutory regulations, which parliament may repeal or modify at pleasure. They are limitations upon the power of the crown, and not upon that of

The latter clause of section 6 of the 1st article of the constitution is in these words :—“ No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled, in any criminal cause, to be a witness against himself ; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” These provisions are not to be narrowed down by a literal construction. They are to be largely and liberally expounded. Their object is to secure the enjoyment of the rights to which they refer, and must have an interpretation which will effect that object. The terms, “ life,” “liberty,” “property,” and “due process of law/’ as they stand in the section, become of vital consequence in giving it a construction. To be of any real value they must have a fixed, permanent signification, one that shall remain unchanged by circumstances, or time, or the caprice of those to whom the restraining words of the section may become offensive or •troublesome. The legislature may declare what a particular term or- expression means when used in a statute. This is a

The right of property, as we have seen, consists in the “free use, enjoyment, and disposal.” Its incidents are the enjoyment, use, and the power of disposition. Are we to designate, classify, or define an interest Or an estate which cannot be used, enjoyed, or sold and transferred? By what words and expressions shall we impart to others our idea of its nature and qualities ? There can be no property, in the legal and popular sense of the term, where neither the owner, nor the person who represents the owner, has the power of the sale and disposition. That which cannot be used, enjoyed, or sold, is not property; and to take away all or any of these incidents, is, in effect, to deprive the owner of his right of property. This is precisely what the act “ for the prevention of intemperance, pauperism, and crime,” is intended to accomplish, and precisely what it will accomplish if it can be enforced, for it declares that the subject to which it refers shall neither be sold, nor kept for sale, nor with an intent to be sold. The statutes may, and it is their office to prescribe, the forms by which sales may be effected; that the title to real property shall only pass by deed acknowledged before an officer, or attested by a witness; that personal estate shall only pass by delivery in writing, or the payment of purchase money; that poisonous drugs, when sold, shall be so labeled. They may also declare that intoxicating liquors shall not be sold to minors, paupers, or habitual drunkards, or to be drank in the house of the seller, or by retail to be taken out of the house, unless he have a license, and be of good moral

There is anpther right incidental to the right óf property, which, when abrogated or suspended, tends to the deprivation o'f property : that is, the right of action—the right to the protection of the laws, and to redress by the legal tribunals. The forms of action and of legal proceedings, the mode by which civil injuries are redressed, and-rights asserted and defended in the courts, are classed as remedies, and are doubtless subject generally to legislative supervisión and control. But when the law-making power comes to deal with the absolute, inherent rights referred to in the 6th section of the 1st article of the constitution, forms and modes of proceeding from being mere remedies, rise to the dignity of rights, which cannot be denied or withheld. The principle is asserted by Mr. Justice Washington, in Green agt. Biddle, ( 8 Wheat. Rep. 1 , 75,) in the following language:—

“ Nothing can be more clear, upon principles of law and reason, than that a law which denies to the owner of land a ■remedy, &c>, or which clogs his recovery of possession by conditions and restrictions tending to diminish the amount and value of the thing recovered, impairs his right to and interest in the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered insecure according to the nature and the extent of such restrictions.”

Blackstone, in his Com. vol. 1, p. 55, says : The remedial part of a law is so necessary a consequence of the two former, (the declaratory and directory parts,) that laws must he very vague arid imperfect without it. For, in vain would rights be declared, in vain directed to be observed, if there were no _ method of recovering or asserting those rights when wrongfully withheld or invaded. This is what we mean, properly, when we speak of the protection of the law.”

Mr. Justice Taney, in delivering his judgment Bronson

In Holmes agt. Lansing, (8 John. Cases, 75,) Chancellor Kent, speaking the judgment of this court, says: “So long as contracts were submitted, without legislative interference, to the ordinary and regular course of justice, and existing remedies were preserved in substance and with integrity,” the constitution was not violated.

And Judge Denio, in pronouncing the judgment of"the court of appeals in Morse agt. Gould, (1 Kernan, 281,) also says: “ It is admitted that a contract may be virtually impaired by a law which, without acting directly upon its terms, destroys the remedy, or so embarrasses it that the rights of the creditor under the legal remedies when the contract was made are substantially defeated.”

With this necessary qualification, the jurisdiction of the states over the legal proceedings of the courts is supreme. These authorities sufficiently indicate the' distinction between rights and the remedial process of the law for their vindication, when wrongfully withheld or invaded, and they also define and mark the utmost verge and limit of legislative power when applying remedies to absolute, inherent rights, which the people have reserved to themselves by the limitations of the constitution. This right of action to redress and protection, by the venders and owners of intoxicating liquors, is seriously impaired—if not in effect destroyed—by the conditions imposed by the latter clause of the 16th section of the act in question.

Those provisions of this act which I have endeavored to show

“ The prescribed forms and solemnities for ascertaining guilt and determining the title to property,” comprehend as well the forms of procedure as the legal presumptions and rules of evi

Nor can the force and efficiency of the constitutonal limitations be evaded or averted by the declaration of the 25th section of the act, that intoxicating liquors are a public nuisance. In the words of Chief Justice Ruffin, (C such a construction would abrogate all restrictions on legislative authority.” If a class of citizens can be deprived of a particular kind of property by a legislative declaration that it is a public nuisance, then another class may be deprived of liberty by a legislative act proscribing them as malefactors and felons. Grant this power to the legislature, and the limitations of the constitution are no longer of any value. Every kind of property may be put without the pale of the lawrs and the protection of the courts, and exposed to seizure and forfeiture by a simple act declaring the proscribed article to be a public nuisance. The existence of such a power is inconsistent with the theory of a limited representative government, because it is destructive of the ends ✓ which such government is designed to accomplish.

Liquors that intoxicate exhibit none of the qualities which constitute a common nuisance. They obstruct no navigable rivers, and impede the passage of no public highways. They create no noise to disturb the public,, tranquility and peace. They exhale no offensive odors to taint the air and impair the public health. Nor do they endanger the security of persons or of property, by a tendency, to ignition and explosion. In the stores of the importer, the vaults of the brewer, and the cellars of the wine-grower and consumer, they are as harmless as the wood or glass in which they .are inclosed. He who knows how to enjoy them with reason and moderation, or has the moral courage and self-denial to let them alone, may consider himself free from annoyance and danger. They may be, and doubtless are, converted to base uses—uses which produce “ intemperance, pauperism, and crime,” and, I may add, moral

There are some observations of Justices Taney and Wood-bury, in the opinions delivered by them in the cases against the states of Massachusetts, Rhode Island, and New Hampshire, ( 5 How. 504 ,) which are thought to favor the'idea that the states may pass laws prohibitory of the uses and sales of ardent spirits, subject to the right of importation and of sale by the importer. Those who attach any value to expressions which are obita dicta, and not necessary to the decision of the precise question under examination, will do well to remember that the language referred to,' asserts the absence of anything in the constitution of the United States, which forbids the passage of prohibitory laws, and nothing more.

The cases in which the observations occur, determined that the excise laws of the several states named in the proceedings did not conflict with the authority given to congress to regulate commerce with foreign countries, and among the several states, and nothing else. The power of a state exercising its sovereign authority, is that to which these learned judges refer; but the power of a state legislature, exercising its authority under such restraints and limitations as its constituents may have imposed upon it, is quite a different thing, and one which they did not consider. The question here is, not what the legislature might do were these limitations removed or modified, nor' what the people of the state might do, by an amendment of the organic law, but what the legislature may now do with the limitations in full force.

A distinction has also been suggested between the power of the legislature over property in liquors acquired and existing at the time the act took effect, and property in liquors acquired after-

Here are a class of citizens, who have invested their property, and spent the best years of their lives in learning and establishing a particular business or trade, inoffensive and commendable in itself—the growth and manufacture, it may be, of wine—the culture of barley and hops—the manufacture of fire-arms and gunpowder—fabrication of type, printing presses, and paper— and then comes a legislative act, confessing its incompetency to invade or disturb existing interests, and declares that because wine and the decoction of barley and hops may lead to intoxication—fire-arms and gunpowder to war, bloodshed, and the destruction of human life; and types, printing-presses and paper to blasphemous, libelous, and obscene publications—all future acquisitions of the kind shall cease to be regarded as property, and be no longer entitled to claim the benefit and protection of the laws.

Let this fancied distinction between present and future acquisitions once obtain, and property will not hereafter depend for its' security upon a permanent rule of constitutional law, but upon legislative, moderation and forbearance, and such limitations as legislative wisdom and discretion may put upon its own authority.

But let us. look upon this distinction in another aspect. Brown agt. The State of Maryland, (12 Wheaton, 419,) decides that a state law, requiring importers of foreign goods (including liquors) to take out a license before proceeding to sell by the bale or package, is repugnant to the constitution of the United States, and void. In other words, that a state has no power to prohibit sales of foreign goods by the importer, in the bale or

“ Commerce is intercourse. One of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficiency should be complete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importations be given, unaccompanied with the power to authorize a sale of the thing imported 1 Sale is the object of importation, and is one essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the entire thing, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importations but to authorize the importer to sell.”

Here, then, is a positive affirmation that the right to sell, by the importer, is a component part of the power to regulate commerce; and that congress may, in disregard of state legislation, authorize the importer to sell. Now, the right to sell by the importer implies the right to purchase by some other person; because there can be no sale if there is no person to purchase. Had the state of Maryland, in place of prohibiting sales by the importer, gone further, and prohibited purchases from the importer by its own citizens, can there be a doubt that such a prohibition to purchase would have been held equally void as the prohibition to sell, and equally hostile to this exclusive right of congress to regulate commerce 1 When, therefore, a citizen of the state of New-York becomes the purchaser of foreign liquor from the importer, he acquires a right of property under the paramount law of the United States, as sacred and secure from legislative invasion and aggression as rights of property which were vested at the time the law under consideration took effect.

The laws which prohibit intermural interments, referred to upon the argument, stand upon the intelligible and constitutional ground of police regulations to prevent nuisances. (Coats agt. The Mayor, &c., of New-York, 7 Wend. 585 .) And the statutes' which authorize the destruction of buildings to arrest the progress of fire or the ravages of pestilence, are justified by the la.w of overruling necessity, and is the exercise of a natural right to avert a great public calamity. (2 Kent’s Com. 338; Russell agt. The Mayor of New-York, 2 Denio, 461 .)

I therefore arrive at the conclusion, that so much of the 1st section of the act under consideration as declares that intoxicating liquor shall not be sold or kept for sale, or with intent to be sold, except by the persons, and for the special uses,

The proceedings in both cases are reversed and set aside, and Philip Berberrich is discharged from his arrest.

This cause (the case of Toynbee) comes before us on an appeal by the defendant from a judgment rendered against him by a police justice of the city of Brooklyn, for the alleged violation of the statute for the “prevention of intemperance, pauperism, and crime,” commonly called the Prohibitory Act. The complaint was preferred before the justice by a policeman, pursuant to the 12th section of the statute. It stated, in substance, that on the 27th of July, 1855, the defendant sold, and kept for sale, and had in his possession with intent to sell, in Montague-street, in the third ward of said city, intoxicating liquor, to wit, brandy and champagne, in violation of the said statute; and that said offence consisted in selling one glass of brandy, and one bottle of champagne. When the defendant was Brought before the justice, his counsel moved that he should be discharged on the grounds that it did not appear by the complaint, that any crime or offence whatever had been committed; and the act under which the prosecution had been instituted is unconstitutional and void. The motion was denied. The defendant then said that he did not request to be

The defendant thereupon pleaded not guilty. A trial was immediately had before the justice, without a jury; the defendant was convicted, and sentenced to pay a fine of fifty dollars and the costs; and it was adjudged that the intoxicating liquor „ should be forfeited. The defendant’s counsel objected before the justice, that the complaint was defective, because it did not aver that the liquors alleged to have- been sold were not liquors, the right to sell which in this state is given by any law or treaty of the United States.^ If such an averment was necessary, the justice should have dismissed the complaint by reason of the omission. The statute does not direct what the complaint shall contain, and that is, of course, left to the rules of the common law.

The complaint is a substitute for an indictment, so far as it relates to substance, and requires at least as much particularity— indeed, the authorities say more. Mr. Chitty, in his approved work on criminal law, (vol. 1, pp. 281-2,) says, “ It is a general rule zthat all indictments upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it.” “ And,” he adds, “not even the fullest description of the offence, were it even in the terms of a legal definition, would be sufficient, without keeping close to the expressions of the statute.” >

In the case of The People agt. Allen, ( 5 Denio, 79 ,) Beardsley, C. J., says, “ An indictment upon a statute must state all such facts and circumstances as constitute the statute offence, so as to bring the party indicted precisely within the provisions of the statute. If the statute is confined to certain classes of persons, .or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place ”—where and when—“ when the alleged criminal

There can be no doubt as to the principle, it is reasonable and proper, and is not controverted by any respectable authority. The 1st section of the statute under consideration enacts, that intoxicating liquors, except as thereinafter provided, shall not be sold, or kept for sale, or with intent to be sold, by any person for himself or any other person, in any place whatsoever. These expressions are certainly very broad and comprehensive, and they are not so restricted by their reference to subsequent exceptions, as to make any negation of such as are included in other sections, a necessary part of the description of any alleged prohibition. (Popham, 93, 4; Hawkins, b. 2, ch. 25, s. 113.) The last clause of the first section, however, declares expressly that the section itself shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States. The statute does not forbid the sale of all intoxicating liquors. A large class certainly is exempt from the prohibition. It is not necessary that I should consider, in discussing this point, how far the qualification extends, but it is material to the decision of another point involved in this case, and I may as well express my opinion about it here.

The question which has been agitated upon this point is, ■whether the exception refers to foreign liquors only while in the hands of the importers, and contained in the original cask or vessel, when,’ according to the decisions of the supreme court of the United States, the right of sale is given by congressional legislation, or to such liquors at all times and in whatever condition they may be: in other words, whether it refers to the liquors themselves or to their status. It must be admitted that the language is susceptible (and I think equally susceptible) of either interpretation. In these cases the rules of construction are different, according to the character of the statutes—whether they are purely remedial or penal. The former is entitled to a liberal, while the latter is confined to a strict construction.

A statute is purely remedial when it furnishes additional

Applying the principle of construction I have endeavored to illustrate, to the qualifying clause of the first section, and taking that by itself, the prohibition would not extend to imported liquors at all. But there is another rule in giving a construction to an expression in a statute equally indicative of two varied meanings, and that is, that the whole enactment must be considered, and if one of the interpretations is consonant to the other provisions and the main scope and design of the act, and the other- not, that which is consisteht shall prevail. It is not then a question of strict or liberal construction, but the preponderance produces reasonable certainty. Now, no one who reads the act in question, and considers its object, can hesitate a moment in coming to the conclusion that the legislature intended to prohibit mainly the sale of imported liquors as a beverage. Indeed,' the statute would be wholly ineffectual

I think, therefore, that the true way of reading the first section, is as a prohibition of the sale of intoxicating liquors, not vendible beyond state legislation, in their existing condition, according to the decisions of the supreme court of the United States. But to whatever extent the vendible liquors may go, their express exemption qualifies the description of those included in the prohibition. Men may still sell intoxicating liquors—all that is charged in the complaint—and yet not be guilty of any offence. It is undoubtedly true, that when a statute contains provisos and exceptions, in distinct clauses, it is not necessary to state in an indictment that the defendant does not come within the exception, or negative the provisos it contains. The reason given is, that these are matters of defence, which it is necessary that the accused should aver and prove. But that principle does not apply where, as in this case, the enacting section declares that it is inapplicable to the excepted matters. The statute does not, then, constitute them the subjects of offence; and it is not necessary for the accused to aver or prove any defence, until there is proof that he is guilty of what is condemned.

In the case of Rex agt. Jarvis, cited in a note to Rex agt. Stone, (1 East, 639,) Lord Mansfield said, that where exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fall within any of them. And Foster, J., who was an eminent criminal lawyer, remarked, that “ where negatives' are descriptive of the offence, then they must be set forth.”

The rules which I have stated are applicable to indictments which áre preferred by a grand jury, and where the accused may have the benefit of a fair and deliberate trial by jury. But a greater degree of strictness is required in summary proceedings before an inferior jurisdiction, wrhich does not afford to the defendants those advantages that the common course of law allows them. In such cases Mr. Chitty' says, (vol. 1, p. 284,) it is necessary to show, by negative averments, that the defendants are not within any of the provisos or exceptions of the

The next objection to the proceeding before the justice is, that by refusing the defendant’s tender of bail for his appearance at the next court having criminal jurisdiction, there was, in effect, denied to him the constitutional right to be tried by a competent jury. The result of the denial was, that if the defendant had been tried by a jury, it must necessarily have been before one consisting of six persons, out of twelve to be summoned by the constable.

The jurors for our courts of special sessions are generally taken from the immediate neighborhood, and are liable to be influenced; and their verdict is sometimes controlled by the bias created by a public accusation for the commission of a crime in their own vicinity. They are ordinarily selected, too, by an officer who has had an agency in the preliminary steps against the accused, and who, as is sometimes the case with police officers, may be anxious to procure his conviction. Whereas the jurors, in our higher courts of criminal jurisdiction, are designated by responsible town officers; their names are deposited in a box kept by the county clerk, and are drawn by him in the presence of some of the county officers, and they are taken from the whole county. These measures are taken for the purpose of having intelligent and impartial jurors, and they are generally effectual. Besides, it is a matter of some importance to the accused, whether his character, his liberty, and his property are made dependent upon the verdict of twelve or of six men. Innocent men have sometimes escaped from the worst of punishment by the voice of a single juror—and in such cases the larger number of course affords the greater pro

On looking over the entire statute, it seems to me that the provisions relative to the trials under it indicate an intent to confine them to the special sessions. The magistrate who issues the original process constitutes the court—they are identical. The 5th section provides that such court shall not be required to take the examination of the accused, but shall proceed to trial as soon as the complainant can be notified. The provisions of the act relative to appeals apply exclusively to judgments in the courts of special sessions, and are mostly inapplicable to trials before the general sessions, or oyer and terminer. Many of them are very important. The right of appeal is given to the complainant as well as the defendant. If the defendant appeals, he is required to give a satisfactory bond that he will not, during the pendency of the appeal, violate any of the provisions of the statute. The ordinary power of amendment ,,of the appellate court is considerably increased, and any judgment or verdict against evidence may be reversed on appeal, as (in the words of the statute) “in civil actions.” It is not material to inquire here whether verdicts against evidence in civil actions can be reversed on appeal. I am considering the provision simply as indicative of the intention of the legislature. Now if it was designed, by constituting offences under the act misdemeanors, to confer the right to try the accused in the courts of .general sessions and oyer and terminer, the legislature would, I think, have made the provisions relative to appeals applicable to those courts also, otherwise their work would have been but half done.

There are other provisions in the statute indicating a design that all trials under it should be had in the special sessions, and not any to the contrary. The rule in these cases is, that when

I am, therefore, inclined to agree with the justice in the conclusion to which he arrived, that, so far as the statute went, he could not be required to take the proffered bail. But. the more important question arises, whether the (in effect) denial of the privilege claimed by the defendant, is not violative of the constitutional right of trial by jury. If it be so, the enactment, so far as it relates to compulsory trials in the courts of special sessions, is void.

The constitution of this state, which went into operation in 1847, ordains, (Art. 1, § 2,) that the trial by jury, in all cases in which it has been heretofore used, should remain inviolate forever. The language is strong, and evinces the importance which wTas justly attached to the privilege. The terms used in the constitution must be applied according to their meaning at common law, unless a different interpretation is clearly indicated. There is no evidence of any different intent in reference to this provision, nor can any be inferred. A jury, by the rules of the common law, must consist of twelve men. It was, therefore, very properly remarked by Johnson, J., in Cruger agt. The Hudson River Railroad Co., (2 Kernan's R. 198,) that the constitutional provision which I have quoted imports a jury of twelve men, whose verdict must be unanimous. In reference to the cases to which it refers, and whether they include the subsequently created cases, I will quote from an opinion in the case of Wood agt. The City of Brooklyn, (14 Barb. R. 432,) because it expresses my present sentiments on this subject:—

“ This provision relates to classes, and of course includes the individual cases which they comprise. In no other way can constitutional enactments preserve that continued efficacy which is so essential for the public good. Whenever, therefore, a new case is added to a class, it becomes subject to its rules.

These remarks were originally applied to penalties, but, in the quotation, I have substituted crimes to which they are alike applicable. The sentiments were expressed by me in 1852, and I cite them with the greater satisfaction, as they have recently received the concurrence of three of my brethren. The same principle was applied by Chancellor Walworth to the crime' of murder, in the case of The People agt. Enoch, decided by the court for the correction of errors. ( 13 Wend. 159 .) In his opinion in that case he made the following remarks:—

" Malice was implied in many cases at the common law, where it was evident that the offenders could not have had any intention to destroy human life, merely on the ground that the homicide was committed while the person who did the act was engaged in the commission of some other felony, or in an attempt to commit some offence of that grade. This principle is still retained in the law of homicide ; and it necessarily follows, from the principle itself, that as often as the legislature creates new felonies, or raises offences which were only misdemeanors at the common law to the grade of felony, a new class of murder is created55—[it would probably have been more accurate to have said, the previously existing class was enlarged]—“ by the application of this principle to the case of a killing of a human being, by a person who was engaged in the perpetration

There could not be a stronger case to illustrate the ryle 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, im 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 1 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

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. JVo 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

One o'f 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 principié that our former laws regulating the sales of spirituous liquors were passed. They were, however, by no means pro

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 nmit. 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 1 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

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—

And Judge Bronson said, in Taylor agt. Porter, ( 4 Hill, 145 ,) “ The security of life, liberty, and property lies at the foundation of the social compact; and to say that the grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established. If there was not one word of qualification in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under consideration,” (conferring legislative power in general terms,) “ clothed the legislature with despotic power. JVeither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power.”

But, as I have already remarked, the constitution of this state jrrovides expressly that no person shall be deprived of life, liberty, or property, without due process of law. This provision is general, and applies to, and of course limits the power of the legislature. That body can no more deprive any one of his property, without due process of law, than can a private individual. An act of the legislature is not the due process of law mentioned in the constitution. Those -words, as was remarked by Judge Bronson in the case last cited, u cannot mean less than a prosecution, or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.” In other words, a man cannot be legislated out of his life, liberty, or property.

That intoxicating liquors were property at the time of the adoption of our state constitution there can be no doubt. They had been for many ages in general use, as well by the prudent and the virtuous as by the reckless and the vicious. To have denied to the farmer his cheerful glass of cider, or to the laboring man, when worn down with fatigue, the support of his customary restorative, would have excited as much astonishment,

It was said by Chief Justice Taney, in the license cases from Rhode Island, New-Hampshire, and Massachusetts, ( 5 Howard, 577 ,) that “ spirits and distilled liquors are universally admitted to be subjects of ownership and property, and therefore subjects of exchange, barter, and traffic, like any other commodity in which a right of property existsand Catron, J., remarked, in the same cases, that “ ardent spirits have been for ages, and now are subjects of sale, and of lawful commerce, and that of a large class throughout the civilized world, is not open to controversy. So our commercial treaties with foreign powers declare them to be, and so the dealings in them among the states of this Union recognize them to be.” That such liquors are property still admits of no doubt. Their importation from foreign countries is expressly sanctioned, and they are heavily taxed by congressional legislation.

If the acts of congress had been legitimately passed'by the legislature of this state, we should have been virtually precluded from denying the characteristics of property to what we had directly admitted within our borders and subjected to taxation. The faith of states, which should ever be preserved inviolate, would have forbidden it. We are equally, though possibly not as directly, included by the acts of a general government, of which, by our own volition, we are a member. Intoxicating liquors are still freely admitted and heavily taxed; and their sale by the importer while in the cask or vessel in which they were introduced into the country, and their purchase by any one, are authorized beyond the reach of state legislation. It is true, that their subsequent sale was, at the time of the adoption

The remarks of those learned judges, as to the right of the states to pass laws prohibiting the sale of foreign liquors, had no reference to the limitation of the power of the legislature of the states by their own constitutions; and besides, they were mere obiter dicta, as they were upon a question not at all involved in the cases "before them, and would not, according to a rule they had laid down for their own conduct, at all control them, or the court of which they were members, in any future determination. From the considerations to which I have alluded, I have no doubt but that imported liquors are still, as they always have been,—property.

As to liquors of domestic origin, there are other and, possibly, more difficult questions. The control of the state over them has not been, nor, unless they are introduced from other states, cannot be, subject to congressional legislation. Whether it is competent for the legislature to prohibit their manufacture in this state is not now a question, as that has not been done. They can yet be lawfully manufactured, and, when manufactured are still property; and as such are, equally with imported liquors, protected by the aegis interposed by our state constitution.

It is clear, as I have before intimated, that the protection to property extends to and includes its generally conceded characteristics, especially those without which it would be valueless3 otherwise it would be but nominal, and scarcely that. It was

The inviolability of the rights of private property is subject to the prerogative resulting from the eminent domain always existing in the sovereign power to take it for public purposes, on paying an adequate compensation to the owner. But the compensation must consist of a direct and specific remuneration,' and not merely of the general good conferred upon the community by the passage of a beneficent law. The Prohibitory Law does not, nor from the nature of the case could it,'make any direct compensation to the owners for the property which it is proposed to sacrifice.

So, too, 'there is necessarily reserved the right of taxation; but the exercise of such right, although it requires the contribution of a portion of what belongs to the citizen, in effect rather increases than diminishes the value of the entire property, by

The interest in the question as to the validity of the Prohibitory Law is not confined to those only who may own the property which it is proposed, in effect, to render unavailable to the proprietor. It extends to the entire community. If the shield of constitutional protection can be withdrawn from one species of property, any other may be successfully assailed under some specious pretences, or indeed without any at all. It is by no means a sufficient answer to this, to say that the power over property, which is now claimed in behalf of the legislature, would not be liable to abuse, as the members are elected by the people, with whom they retain a community of interests, as they enjoy but a short term of office, and must soon return to the ranks of private life. •

The patriots of the Revolution, >aÉí<í^g3Sii|l5I^^Tjational constitution, and the enlightened npM&Hf of the Attention who adopted our state constituticS^mowhM^^wi^.and accordingly limited the power of thtó^SÍattire eJjM%siW several important particulars, and by ii^licaliag^^my^ó¡|ne.rs. They no doubt thought, and rightly th$i )at thn^fSssession of despotic power by any department of ent would be inconsistent with our free institutions, and that the safety of our lives, our liberty, and our property, required that they should .not be subjected to the arbitrary disposal or control of any man, or set of men.

It may be, that the ordinary use of intoxicating drinks necessarily leads to their frequent abuse, and thjit the interests of society require that property in them should be, in effect, annihilated. If so, they might, and possibly should, be withdrawn from the pale of constitutional protection. Buf that has not yet been done, nor can it be done by any other power than that by which our organic laws were ordained. Whatever those institutions require, the court must award, as it is the duty of the judges, imposed upon them by their official position, and under the solemnity of an oath, to support the constitution of

I have not the slightest wish to extend any protection or encouragement to the habit of inebriation, or to throw any impediment in the way of the good and the virtuous, who are so solicitous to arrest its progress. It is an abomination, and should be suppressed (so far as human means can do it) by precept, by example, and by legitimate legislation. But we should go no further, lest we “ do evil that good may come.” The injunction against that is wise; as the evil is certain, while the production of the good might be, at least, problematical.

The judgment in the court below being erroneous, it must be reversed.

dissenting in part.

The defendant (Berberrich) has been convicted before a court of special sessions held by the county judge of Dutchess county, of having sold intoxicating liquor in violation of the act for the prevention of intemperance, pauperism, and crime, passed April 9, 1855. It is claimed that the defendant should be discharged from custody.

1. Because so much of the said act as prohibits the sale of intoxicating liquor is void. That such prohibition is an unauthorized invasion of private rights, and a violation of the fundamental law.

It is clear that under every free government there are certain fundamental and inherent i-ights belonging to individuals which are not solely dependent upon the will of the legislature;' and it is unnecessary to examine the written constitution of the stale to ascertain whether they are expressly shielded by that instrument from legislative encroachment. The right of personal security, or personal liberty, and private property, do not depend upon the constitution for their existence. They existed before the constitution was made or the government was organized. These are what are termed the absolute rights of individuals, which belong to them independently of all government, and which all governments, which derive their powers from the

“ By the absolute rights of individuals, we mean those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it,” (1 Black. Com. 123.)

But while these rights are better protected, they are not as entirely absolute under government as in a state of nature. They are subservient to such measures as become necessary for the preservation of the government, its defence against external or internal enemies, or the promotion of the best interests of the whole community. For the protection of the government against external danger, individuals may be compelled to enter the military service, and to subject and expose themselves to the hardships and perils of war. For the protection of society against the consequences of crimes, offenders may be deprived of liberty, property, or life. Lunatics, who become dangerous to others, may be imprisoned. Persons sick of contagious diseases, may be removed to, and placed in hospitals. Property may be removed or destroyed, or trades suppressed, which endanger the public safety or health. Property may be taken from individuals in the form of taxes, and applied towards the support of the government and its institutions. In short, government is not to be restrained in the exercise of its legitimate powers, which are essential to the public welfare, because the rights of individuals will be injuriously affected thereby.

In cases where private property is directly and specifically taken for the public use, compensation must be made to the owner. But cases are constantly occurring where individuals are subjected to great and ruinous losses of property through the operation of public measures and laws; but these losses being merely consequential and incidental to the exercise of the legitimate powers of the legislature, the individual injury is not the subject of legal redress. Individual loss frequently results from the grading of streets, the construction of canals, bridges, ferries, railroads, and similar improvements; but if the

We may assume, for the purpose of this case at least, that the legislature of a free state is not competent to pass a tyrannical law. That is, one which restrains the natural rights of individuals for any other purpose than to advance some public ■good, or to repress some public evil. The distinction between laws which are tyrannical, because they unnecessarily infringe upon the absolute rights of individuals, and those which are consistent with civil liberty, although in restraint of natural liberty, is very clearly pointed out by Blackstone, as follows:—

" Political or civil 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 and expedient for the general advantage of the public. Hence we may collect, that the law which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny; nay, that even laws themselves, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty; whereas, if any public advantage can arise from observing such precepts, the conti-ol of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance^ by supporting that state of society which alone can secure our independence.” (1 Black. Com. 125.)

There is no doubt but that a great number of individuals will sustain a serious loss of property and derangement of business through the operation of the prohibitory feature of the law in question. But this consideration is not decisive of the ques

Any interference with the right of property is not the primary object of this law. Its object is, to prevent intemperance, pauperism, and crime. Surely these are proper subjects of legislation. A law aiming at the prevention of these evils by regulating, and, to a certain extent, prohibiting the sale of intoxicating liquor, has long existed as one of the police 2'egulations of the state. The present law assumes that the former law has been found insufficient to accomplish the ends for which it was designed. That the regulation of the sale of intoxicating liquor having failed to suppress intemperance, pauperism, and crime, and the public evils flow'ing therefi-om, it has become necessary to try what virtue there is in prohibition.

Whether the law can be carried into effect, whether the -whole result will not be a mere legislative enactment of prohibition, without the power of enforcing it practically, whether the evils at which the law is pointed will not be aggravated instead of suppressed, are matters addressed solely to the discretion of the legislature, and with which the judicial branch of the government has no concern.

The objects of the law are matters in -which the whole community are interested. Drunkards, paupers, and criminals are burdens upon the public, enemies to the peace, welfare, and happiness of society. 'Can it be doubted, that if the traffic in intoxicating liquor was entirely suppressed, their number would be greatly diminished!

It is enough to uphold this law, that its tendency is to pr-event the public evils against which it is directed, and to promote the public benefits which it is designed to reach. It is not difficult, by ignoring the whole object and pu¡-pose of the law, to maké out a very plausible case of legislative encroachment upon private rights. But this is not a just, or fair mode of considering

But it is further claimed that the defendant should be discharged from custody.

2. Because it does not appear, from the complaint under which he was arrested and convicted, that he sold liquor which was not imported. Thatj by the true construction of the exception at the close of the first section of the act, the unrestricted sale of all imported liquor is permitted. The language of this exception is as follows:—

<£ This section shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States.”

It is said that, as this clause occurs in a penal statute, and is a part of the definition of the offence which it is the intention of the law, to prohibit and punish, it must be strictly construed. This may be so; but a literal construction of the clause will render it entirely nugatory. The rights of those whose inter

The rules by which the sages of the law have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages. (Plowden’s Rep. 205.)

The resolutions of the barons of the'exchequer, in' Heyden’s case, were the following:—

“For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, foul- things are to be discerned and considered:

“2. What was the mischief and defect against which the common law did not provide ?

“3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth ?

“ 4. The true reason of the remedy. And it was held to be the duty of the judges, at all terms, to make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for continuance of the mischief, et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of it, pro bono publico.” (3 Reports, 7.)

Surely, we are not called upon to reverse these admirable rules for the construction and interpretation of statutes, and so to construe this act as will certainly and clearly advance the mischief which it was intended to suppress, and suppress the remedy which it was intended to advance.

It is further claimed, that the defendant is entitled to his discharge.

3. Because the proceedings against him were in violation of law, and void. I can perceive no substantial error in these proceedings, down to the time when the defendant was brought before the county judge upon the warrant issued by that magistrate for his arrest.

He then demanded that his examination should be taken, and offered bail for his appearance at the next court of sessions of Dutchess county. This was refused, and he was therefore tried and convicted before a court of special sessions, held by said county judge. In refusing an examination, or to take bail for the appearance of the defendant, I think the county judge committed an error which was fatal to the validity of all the subsequent proceedings against the defendant. The examination of the defendant should have been taken by the county judge; and if, upon the examination of the whole matter, it appeared either that no offence had been committed, or that there was no probable cause for charging the defendant there

A court of special sessions is one of limited jurisdiction, deriving all its powers from the statute. It could only acquire jurisdiction over the person of the defendant upon his request to be tried before it, or his omission for twenty-four hours after being required to do so, to give bail for his appearance according to law. (2 R. S. 711, 712.)

I think the conviction of the defendant was void, and does not authorize his detention in custody.