
    SUPREME COURT.
    The People of the State of New-York, upon the complaint of John E. Vassar, agt. Phillip Berberrich. The Same, upon the complaint of John Matthews, agt. Thos. Toynbee.
    So much of the first section of the act of the 9th April, 1855, entitled “ An Act roe. the Prevention or Intemperance, Pauperism, and Crime,” 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, mentioned in the act,—
    So much of sections six, seven, ten, and twelve, ad provide for its seizure, forfeiture, and destruction,—
    So much of section sixteen as declares that no person shall maintain an action to recover the value of any liquor sold or kept by him which shall be purchased, taken, detained, or injured, unless he can prove that the same was sold according to the provisions of the act, or was lawfully kept and owned by him,—
    So much of section seventeen as declares that, upon the trial of any complaint under the act, proof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale,—
    And so much of section twenty-five as declares that intoxicating liquor, kept in violation of any of the provisions of the act, shallbe deemed tobe apublic nuisance,—held, to be repugnant to the provisions of the constitution for the protection of liberty and property, and absolutely void.
    
    The legitimate authority of the legislature does not eitend to the enactment of laws prohibitory of the common and ordinary use of property. Nor can it, in the execution of the trusts confided to it, declare, by statute, an article or thing, the product of human industry, or creation of human skill, long recognized as property, and of all but universal use, and perfectly inoffensive in itself, to be a public nuisance, and thus authorize and justify its destruction.
    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. ' _
    The right of property not only extends $o its corpus, but to its ordinary and essential characteristics, of which the right of sale is one; and it can be controlled only so far as to prevent its abuse, without destroying such characteristics.
    
      An act of the legislature is not the “ due process of law" mentioned in the 6 th article of the constitution of this state. Those words 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.
    A complaint under this act must 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, It does not cure the difficulty that the defendant is charged with having sold liquors contrary to the form of the statute. That will-not aid a defective description of the offence. Nor can the defect be cured by evidence. The evidence must be confined to the charge, and the accused cannot be required to answer any complaint, except that which sets out an offence conformably to the rules of law.
    The complaint is a substitute for an indictment, so far as it relates to substance, and requires at least as much particularity.
    The true way of reading the qualifying clause of the first section of the act, is as a prohibition of the sdle of intoxicating liquors not vendible beyond state legislation, in their existing condition, according to the decisions of the Supreme Court of the United States.
    
    The provisions of the act relative to .the trials under it, indicate an intent to confine them to the special sessions. And the enactment, so far as it relates to compulsory trials in the courts of special sessions, is unconstitutional and void.
    
    
      Second District, Brooklyn General Term,
    
    
      July, 1855.
    Brown, S. B. Strong, and Rockwell, Justices.
    
    The act entitled “An Act for the Prevention of Intemperance, Pauperism, and Crime,” passed April 9th, 1855,—(sometimes called the Maine law,)—as taken from the statute, is as follows :—
    
      The People of the State of Jfew-York, represented in Senate and Assembly, do enact as follows:—
    § 1. Intoxicating liquor, except as hereinafter 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 ; nor shall it be given away, (except as a medicine, by physicians pursuing the practice of medicine as a business, or for sacramental purposes,) nor be kept with intent to be given away, in any place whatsoever, except in a dwelling-house in which, or in any part of which, no tavern, store, grocery, shop, boarding or victualing-housé, or a room for gambling, dancing, or other public amusement or recreation, of any kind is kept; nor shall it be kept or deposited in any place whatsoever, except in such dwolling-house, as above described, or in a church, or place of worship, for sacramental purposes, or in a place where either some chemical, or mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching the place of its destination. 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.
    § 2. Any citizen of good moral character, who is an elector of the town or city where he intends to sell intoxicating liquor^ as hereinafter provided, and who is not a pedlar, nor the keeper of or interested in any boarding or victualing-house, grocery or fruit-store, or any bar-room, confectionary, inn, tavern, or other place of public entertainment, or the keeper of, or interested in any museum, theatre or other place of public amusement, nor the captain, commandant, agent, clerk or servant of or on any vessel, boat or wrater craft of any kind whatever, may keep for sale, and may sell intoxicating liquor and alcohol, for mechanical, chemical or medicinal purposes, and wine for sacramental use; provided he shall, within one year previous, have filed in the office of the clerk of the county in which such liquor is to be sold, an undertaking executed by himself and two good and sufficient sureties, to be approved by the county judge of the said county, or in the city of New-York, by one of the judges of the common pleas, and acknowledged before said judge, that he will not violate any provision of this act, and will pay all fines, damages and' costs which may be imposed upon or recovered against him, in any action, civil or criminal, to be commenced under any of the provisions of this act y and provided, further, that he shall also have filed, with his undertaking or declaration, an oath or affirmation, taken before said judge, setting forth the town or ward, and particularly designating and describing the premises and place in which he intends to sell such liquor, and declaring that he is an elector of such town or ward, and does not use intoxicating liquor as a beverage, and is not, and during the time he shall sell such liquor, will not be a pedlar, nor the keeper of, nor interested in any inn, tavern, boarding-house, victualling-house, grocery or fruit-store, barroom, confectionary, or other place of public, entertainment, nor the keeper of, nor interested in any theatre, museum or other place of public amusement, or the captain, commander, agent, clerk or servant of or on any vessel, boat or water craft of any kind whatever, and will not violate any provision of this act; and provided, further, that he shall, within one year previous, have filed a copy of such undertaking and declaration, certified by the county clerk, in the office of the clerk of the town or city in which such liquor is to be sold. No such undertaking shall be approved by any such judge, unless the applicant shall be a man of good moral character, and such sureties shall he householders within such county, and shall severally justify in the sum of five hundred dollars each, over and above all debts, demands, liabilities or legal exemptions, and shall also make oath or affirmation that they have not become possessed of any property for the purpose of enabling them to justify as such sureties, and that they are not and will not become directly or "indirectly engaged or interested in the manufacture or sale of intoxicating liquor during the continuance of their surety-ship.
    § 3. Any person authorized as in the last section provided, shall not do anything contrary to his said undertaking, nor to wffiat he has sworn in his said oath or affirmation, nor shall he sell any liquor known by him to be impure or adulterated; nor shall he suffer any liquor sold by him to be drank upon the premises wffiere the same is sold; but he may sell in the following cases and no other
    1. To any person of the age of twenty-one years, being of good character for sobriety, provided the person selling the same shall have good reason to believe, and shall believe, that the same is intended by the purchaser to be used for some one of the purposes in the preceding section named, and not to be sold, disposed of, or given away, or to be drank'on the premises, contrary to the provisions of this act; or,
    2. To any person authorized to sell such liquor as in the last section provided.
    Every person authorized to sell as in the last section provided, shall keep a book of sales, in which he shall enter or cause to be entered every sale made by him, which entry shall contain the kind, quantity, price, purpose for which, name of the person to whom, and time when sold; which book shall, at all times during business hours, be open to public examination by any resident of the town or city. Every person so selling liquor shall file with the clerk of the town or city where he sells the same, between the first and fifteenth day of each month, a sworn copy of such sales, and of all purchases made by him, containing kind, quantity and price, with an affidavit that the same contains a correct account of the sales, and all the sales and purchases made by him during the previous month, accord- . ing to his best knowledge, information and belief. But nothing in this act contained shall be construed to prevent the sale by legal process (in case of the insolvency of the authorized liquor seller) of any liquors-held by him at the time of such insolvency, to any other liquor seller authorized to sell by this act, nor to prevent the legal representatives of any deceased person, (who, at the time of his decease, was an authorized liquor seller,) from selling any such liquors as may come to their possession as property of such deceased liquor seller, to any person authorized by this act to sell liquor.
    § 4. Every person who shall violate any provision of either ■of the preceding sections, shall, upon conviction, be adjudged guilty of a misdemeanor; and, except for failure to file his return or make his entries, as in the last section provided, shall forfeit all the liquor kept by him in violation of either of the preceding sections, and be punished as follows:—For any violation of section first, for the first offence, by a fine of fifty dollars; for the second offence, by a fine of one hundred dol- - ars and thirty days imprisonment; for the third, and every subsequent offence, by a fine of not less than one hundred nor more than two hundred and fifty dollars, and by imprisonment not less than three nor more than six months. For any violation of section second or third, by a fine of one hundred dollars, and by imprisonment in the county jail not less than thirty days, and be ever thereafter disqualified for selling liquor within this state. Upon every conviction, the defendant shall also be required to pay all costs and fees, as provided in this act. In default of payment of any such fine, costs and fees, or any part thereof, the defendant shall be committed until the same are paid, not less than one day per dollar of the amount unpaid. If any person purchasing any liquor as in the last section provided, shall, at the time, make any false statement concerning the use to which such liquor is to be applied, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall forfeit and pay a fine of ten dollars and costs, as provided in this act, and stand committed until paid, not less than one day per dollar of the amount unpaid.
    § 5. Every justice of the peace, police justice, county judge, city judge, and in addition, in the city of New-York, the recorder, each justice of the marine court, and the justices of the district courts, and in all cities where there is a recorder’s court, the recorder, shall have power to issue process, to hear and determine charges, and punish for all offences arising under any of the provisions of this act; and they are each hereby authorized and required to hold courts of special sessions for the trial of such offences, and under this act to do all other acts, and exercise the same authority that may be done or exercised by justices of the peace in criminal cases, and by courts of special sessions, as the same are now constituted; and the term magistrate, as used in this act, shall be deemed to refer to and include each officer named in this section. Such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence, under this act, but shall proceed to trial as soon thereafter as the complainant can be notified; and for good cause shown, he may adjourn from time to time not exceeding twenty days. At the time of joining issue, and not after, either party may demand trial by jury, in which case the magistrate shall issue a venire, and cause a jury to be summoned and impanneled, as in other criminal cases in courts of special sessions. The complainant may appear upon such trial upon behalf of the people, and prosecute the same with or without counsel. He may also prosecute the same in all the courts to which, as hereinafter provided, appeal may be taken by attorney, or he may apply to the district attorney, whose duty it shall be, upon such application, to appear and conduct said appeal from the judgment thereon. The same costs and disbursements shall be allowed against the defendant upon such appeal as are now allowed in civil actions in those courts to which appeal may be taken according to the provisions of this act. In all cases, if the district attorney shall appear and conduct the trial or appeal, or both, the costs, if any, shall go to him for his individual use, in other cases to the complainant; and in default of the payment of the wdiole or any part thereof, the defendant may be committed to the same extent as provided in the fourth section of this act.
    § 6. Whenever complaint on oath or affirmation shall be made in xvriting to any magistrate by'one or more credible persons, resident of the county where the complaint is made, or of an adjoining county, that he or they have reason to believe, and do believe, that intoxicating liquor is kept or deposited in violation of any provision of section first of this act, whether the person so keeping or depositing the same is or is not known to the complainant, in some specified place or places within the city or town within which such complaint is made, or upon any water adjacent thereto, or within five hundred yards of the boundaries thereof, which complaint shall state the facts and circumstances upon which such belief is founded, or such facts and circumstances shall be stated upon oath or affirmation of some other person, it shall be the duty of such magistrate, if he is satisfied that there is probable cause for said belief, forthwith to issue a warrant, directed in the same manner as criminal processes a renow directed, commanding the officer, with proper assistance, forthwith diligently to search such place or places, and to seize all intoxicating liquor found therein, which, from said complaint or other proof furnished, said magistrate shall be satisfied there is probable cause for believing is kept or deposited in violation of any provision of section first, together with the vessels in which the same is contained, and to • store the same in some safe and convenient place, to be disposed of as hereinafter provided. If from such complaint or proof, or both, the person so keeping or depositing said liquor shall be made known, or ascertained to the satisfaction of said magistrate, he shall issue a separate warrant for the arrest of such person, to be dealt with according to the provisions of this act. But no warrant shall be issued under this act, to search any such dwelling-house as is described in section first .of this act, unless the occupant thereof shall have been convicted, as herein-before provided, of having sold intoxicating liquor in his dwelling-house, or suffered it to be done, within one year next preceding the issuing thereof. . Every warrant so issued- shall particularly describe the place to be searched, and the things to be seized.
    § 7. Whenever- any liquor shall be seized under any provision of this act, it shall be the duty of the officer by whom such seizure is made, except in cases where the owner thereof shall have been arrested, forthwith to give written notice to the owner or his agent, if known, of the seizure of such liquors, which, and the vessels containing the same, shall be described in such notice, as near as may be, and of the name of the magistrate by whom the warrant was issued; or in case of seizure under section twelfth, before whom the person arrested was carried, and the name and residence of such officer making such seizure, and the time of such seizure. Such notice shall be served by delivering it to the owner or his agent, personally, or by leaving the same at his last or usual place of residence, with a person of mature age residing on the premises. If the owner or his agent cannot be found, and his place of residence is not known to the officer, such notice shall be served by delivering the same to any person of mature age, residing, or being employed in the place in which such liquor was contained, or, if none such can be found, by posting the same in a conspicuous place upon the outer door of such place, and copies of such notice, containing also a description of the place in which such liquor was found, shall forthwith be conspicuously posted in at least three public places within said city or town. Any person may, at any time before forfeiture, present .to the magistrate named in such notice, an affidavit or affirmation in writing, stating that such liquor, at the time of such seizure, was actually owned by him, or by some other person named by him, for whom he is agent; that he or such person had not become possessed thereof for the purpose of preventing its forfeiture, and that the same had not been kept contrary to the provisions of this act, to the best of his knowledge and belief, and also specifying the purpose for which, the place where, under which exception of section first the same was kept, and the facts particularly showing it to be within the exception; and thereupon the same proceedings before said magistrate, shall in all respects be had, as are provided in section fifth. Upon the trial of such claim, the custom-house certificates ■ of importation, and proofs of marks on the casks or packages, corresponding thereto, shall not be received as sufficient evidence that the liquors contained in said casks or packages are those actually imported therein. The magistrate shall keep minutes of the proceedings, testimony and judgment upon all trials under this or section fifth, which shall be subscribed by him. He shall have power to issue process to compel the attendance of witnesses, and to punish for non-attendance as witnesses or jurors, in the same manner as in civil actions before justices of the peace.
    § 8. Either the complainant or other person prosecuting in behalf of the people, or défendant, may appeal to the supreme court at general term, from any judgment of any magistrate rendered under any provision of this act, by serving upon such magistrate, and the complainant or such other person, or the defendant, as the case may be, written notice thereof, specifying the grounds of appeal, within ten days after the rendering of such judgment, the service to be made as now provided in appeals from justices’ courts in civil actions. The decision of the supreme court shall be final, unless with the decision one of the judges thereof shall file a certificate that a legal question is involved therein, upon which it is proper to take the opinion of the court of appeals,—in which case an appeal may be taken to the court of appeals. The service of such notice shall be of no effect in behalf of the defendant or complainant, unless he shall at the same time deliver to the magistrate an undertaking to the people of the state of New-York, in the sum of five hundred dollars, with one or more sureties, to be approved by such magistrate or county judge, conditioned that, if the judgment be affirmed on such appeal, or upon a subsequent appeal from the decision of the supreme court to the court of appeals, they will pay the amount of the fine and costs contained in such judgment, and that the defendant shall not, during the pendency of said appeal, violate any provision of this act, and that they will jointly and severally pay all fines, damages and costs which may be against him, in consequence of any such violation: and in case such defendant shall be required by such, judgment to be imprisoned, or to stand committed, with the further condition that he will appear in' the court of general sessions of said county, at the term thereof, next after the affirmance of such judgment, and not depart therqfrom without leave and by the order of such court of general sessions, as to such imprisonment or commitment. Upon the giving of such notice and undertaking, all further proceedings upon such judgment shall be stayed, until such appeal shall have been decided, or dismissed for want of prosecution, as hereinafter provided. No proceeding or judgment had or rendered under any provision of this act, shall be set aside or be void by reason of any technical errors or defects not affecting the merits; but the same may be amended without notice before or after judgment, or upon appeal or review, or after judgment rendered upon appeal or review, when by such amendment substantial justice will be promoted. Any judgment or verdict rendered under any provision of this act against evidence may be reversed upon appeal, as in civil actions. All appeals from judgments under this act, shall have the same precedence as other criminal causes, and may,be moved out of their order at any time by either party.
    § 9. Whenever any appeal shall be taken according to the provisions of the last section, it shall be the duty of the magistrate, within ten day's thereafter, to file a return of the testimony and proceedings had before him upon the trial of such action, together with the notice of appeal and undertaking, if any, and his certificate that the same contains all the testimony and proceedings had before him on such trial, in the office of the county clerk of the county in which the trial was had. After the filing of the papers as aforesaid, the same rules and proceedings shall in all respects govern the appeal to the final determination thereof, and as to amending the return of said magistrate, as are now provided in civil actions, except as hereinbefore modified: provided, nevertheless, if either the complainant or defendant cannot be found, to be served with notice as now provided, the same may be served by filing it with thé county clerk, and attaching thereunto an affidavit containing the reasons for so doing. If the complainant, other than some one of the officers whose duty it is made to enter complaint, shall fail to appear and defend or prosecute any appeal brought under any provision of this act, or to apply to the district attorney as provided in section fifth, he shall be personally liable to the defendant for the costs of said defendant, to be recovered in a civil action. All executions issued upon the final determination of any appeal adversely to the defendant, to collect the judgment thereon, shall be in the name of the people of the state of New-York against the property and person. If any execution so issued shall be returned unsatisfied, in whole or in part, the district attorney may,- and he hereby is authorized to bring an action upon such undertaking, in the name of the people of the state of New-York, and recover therein the amount of such judgment and costs.
    § 10. Whenever any liquor seized under any provision of this act, shall not be adjudged forfeited, the officer having the same in custody shall return it to the place where it was seized j but when it shall be adjudged forfeited, as provided in any section of this act, or whenever any trial shall have resulted ad.versely to the defendant, and the time for serving notice of appeal shall have elapsed, and no notice and undertaking shall have been served, or the judgment appealed from shall have been finally decided adversely to the defendant, and notice thereof given to the magistrate before whom the trial was had, it shall be the duty of said magistrate forthwith to issue a warrant commanding that the liquor so seized and forfeited be destroyed. And the officer to whom the same shall be delivered, shall forthwith proceed, in the presence of one of the complainants, or of some other person to be designated in such warrant, and to be summoned by him, to execute the same; and such person shall join with the officer in making return by affidavit, of the time, place and manner of the execution of such warrant; and upon the receipt of said return, said magistrate shall order execution to issue to said officer, who shall proceed to sell the vessels which contained said liquor$ and the proceeds of said sale shall be applied in like manner as provided by this act in other cases.
    § 11. Whenever complaint, on oath or affirmation, in writing, (which complaint shall state the facts and circumstances upon which his belief is founded,) shall be made before any magistrate, by any person, that he has just cause to suspect and believe, and does believe, that any offence against any provision of this act has been committed, and that some other person or persons, named by him, has or have knowledge of the commission of such offence, such magistrate, if he thinks there is probable cause to believe that such offence has been committed, and that such person .or persons has or have knowledge of the commission of such offence, shall forthwith issue a summons to the person or persons so named, commanding him or them to appear before him, at a place and time not more than four days thereafter, to be designated in such summons, to testify in relation to such complaint. Such summons may be served in the same or in an adjoining county, by any officer to whom the same shall be delivered, or by any other person, by stating the contents, or delivering a copy thereof, to the person or persons named therein, and at the same time showing him or them the original. If the person or persons so summoned shall fail to appear, the magistrate, upon proof of the service of said summons by the return of.an officer, or the oath of any other person, shall issue an attachment to compel their attendance for the purpose of giving such testimony, which attachment may be executed in any part of the state. The person so attached may, unless some reasonable cause or excuse be shown by his own oath, or the oath of some other person, be punished by a fine of not less than ten dollars, and in default of payment he may be committed to the same extent as provided in the fourth section.
    § 12- It shall be the duty of every sheriff, under-sheriff, deputy-sheriff, cdnstable, marshal, or policeman, to serve all processes to be issued by virtue of this act, to arrest any person whom he shall see actually engaged in the commission of any offence in violation of the first section of this act, and to seize all liquor kept in violation of said section, at the time and place of the commission of such offence, together with the vessels in which the same is contained, and forthwith to convey such person before any magistrate of the same city or town, to be dealt with according to law, and to store the liquor and vessels so seized in some convenient place, to be disposed of as hereinafter provided. It shall be. the duty of every officer by whom any arrest and seizure shall be made under this section, to make complaint on oath against the person or persons arrested, and to prosecute such complaint to judgment and execution. It shall be the duty of every such officer, whenever he shall see any person intoxicated in any store, hotel, street, alley, highway or place, or disturbing the public peace and quiet, to apprehend such person and take him before some magistrate, and and if said magistrate shall, after due examination, deem him too much intoxicated to be examined, or to answer upon oath correctly, he shall direct said officer to keep him in some jail, lock-up, or other safe and convenient place, to be designated by said magistrate, until he shall become sober, and thereupon forthwith to take him before said magistrate, or if he cannot be found, before some other magistrate; and whenever any person shall appear or be brought before any magistrate, as provided in this or the preceding section, it shall be the duty of such magistrate to administer to such person an oath or affirmation, and to examine him as to the cause of such intoxication, and for the purpose of ascertaining whether any offence has been committed against any provision of this act. If, upon such examination, it shall appear that any such offence has been committed within the jurisdiction of such magistrate, it shall be his duty to issue a warrant for the arrest of the offender, and the search of his premises, as hereinbefore provided. If it shall appear that any such offence has been committed at any place beyond the jurisdiction of such magistrate, it shall be his duty to reduce such examination to writing, and forthwith to certify and send the same to any officer or magistrate having jurisdiction of the offence charged, who shall thereupon proceed in relation to such complaint, in the same manner as if the same had been made before him. If any witness shall refuse to be sworn or affirmed, or to answer any question pertinent to such examination or trial, other than such as will criminate himself, he shall be committed to the common jail of such county, there to remain until he shall consent to be sworn or affirmed, and to answer all questions pertaining to such trial or examination. It shall be unlawful for any person to be or become intoxicated in any store, grocery, lane, street, or public place, and for each offence he shall be liable to a fine of ten dollars, to be sued for and recovered in the same manner as fines in the fourth section -of this act, and in default'of the payment thereof, he shall stand committed as provided in said fourth section; and it shall be the duty of the magistrate before whom such intoxicated person is arraigned, to examine such person as a witness relative to the cause of his intoxication, to ascertain whether any other person has violated the provisions of this act; but the testimony so given shall not in any case be used against him, in any civil or criminal action, except upon an indictment and trial for perjury. All such fines shall be applied to the support of the poor of the city or town where the offence is committed.
    § 13. All liquors seized under any provision of this act, except in cases where the owner thereof shall have been arrested, shall be kept stored for thirty days after service and posting of notices, as required by section seventh, after which time, upon the proof of such service and posting by the return of the officer endorsed upon the warrant of search, or by other evidence to that effect, such liquors, together with the vessels in which the same were contained, shall be adjudged forfeited, by the magistrate named in such notice, to whom such proof shall have been made, unless they shall have been claimed as hereinbefore provided: and all liquors, and vessels in which they are contained, which shall have been found and seized in the possession of any person who shall have been arrested for violating any provision of the first section, and not claimed by any other person, shall, upon conviction of such person of such offence, be adjudged forfeited.
    § 14. It shall be the duty of every supervisor and superintendent of the poor, and overseer of the poor, and it shall be the right of every other person, whenever he shall have any knowledge or information that any offence has been committed under any provision of this act, to make complaint, or cause complaint to be made thereof, and to prosecute such complaint in the name of the people. In case any person, other than an officer, shall not make out a prima facie case before the magistrate upon the trial of any complaint under the first section, and it shall appear to the court, that he acted maliciously, or in bad faith, or without probable cause in making such complaint, the court shall render judgment against such person in favor of the defendant for the costs, and issue execution thereon, against the property and person, in the same manner as in civil actions before justices of the peace. Whenever any fine, imposed under any provision of this gfct, except when otherwise especially provided, shall be collected, it shall be paid, together with all costs, to the overseers of the poor of the town in which the offence was committed, for the support of the poor, in cases poor are pported by the county, then to the treasurer'of the county.
    § 15. A certificate, duly proved to be under the hand of any magistrate, stating any such offence charged against any person, and judgment thereon, shall be evidence, in all courts and places, of the facts stated therein.
    § 16. No person who shall have been convicted of any offence against any provision of this act, or who shall be engaged in the sale or keeping of intoxicating liquors contrary to the provisions, of this act, shall be competent to act as a juror upon any trial under any provision of this act; and when information shall be communicated to the court that any person summoned, as a juror upon any such trial, has been so convicted, or is engaged in such unlawful sale or keeping, or is believed to have been so convicted, or to be so engaged, it shall be the duty of the court to examine such person upon oath in relation thereto ; and no answer that he may make shall be used against him in any action or prosecution which may be commenced against him under any provision of this act, except for perjury on such examination; but he may decline to answer, in which case he shall be-discharged as a juryman on such trial. No person shall maintain an action to recover the value or possession of any intoxicating liquor sold or kept by him, which shall be purchased, taken, detained, or injured by any other person, unless he shall prove that such liquor was sold according to the provisions of this ^ act, or was lawfully kept and owned by him.
    § IT. Upon the trial of any complaint commenced under any provision of this act, proof of the sale of liquor shall be sufficient to sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of sale. No evidence shall be received in justification of such sale under the second section, unless the defendant, in his plea or answer, shall have avowed such sale under said section, and shall have accompanied such plea or answer with an affidavit or affirmation that, at the time of such sale, he verily believed that the liquor sold was intended by the purchaser to be actually used in some other way than, as a beverage, and not to be sold, disposed of, or given away, or used on the premises, or that such purchaser was duly authorized to sell liquor as provided by the second section of this act, as the case may be, and also setting forth the circumstances of such sale, and the reasons upon which such belief was founded.
    § 18. No person or corporation shall knowingly carry or transport any liquor within this state, from any place within the United States, and no person shall knowingly deliver any liquor to any other person, or to any corporation, for the purpose of being so carried or transported, unless the name and place of business or residence of the person to whom the same is conveyed, together with the words, “ intoxicating liquor,” are' visibly and distinctly marked on the outside package or cask in which the same is contained. But this section shall not apply to the carrying of liquor in quantities of five gallons or less to any place within the county in which the same was sold, or within an adjoining county. Any person or corporation offending against any provision of this section, shall be liable to a penalty of fifty dollars, to be sued for and recovered by and in the name of any person who shall first commence an action therefor. No person for himself, or agent for any company or corporation, (engaged in the carrying either,of persons or property,) shall act as- agent for any person, for the purchase of any liquors, other than those authorized by this act, to sell the same while engaged in such carrying trade. Whoever shall violate this provision shall be liable to a penalty of one hundred dollars, as herein provided, to be sued for and recovered in the same manner as is provided for violations of section first of this act.
    § 19. In any county in which there now is, or hereafter may be a penitentiary, the court before which any conviction is had for any offence against any provision of this act, may, in its discretion, sentence and commit the person convicted to such penitentiary, instead of the jail of such county, and whenever the punishment under any provision of this act is imprisonment where such expenses are paid by the town; and where the or commitment, it shall be a commitment to the penitentiary or county jail without the liberties thereof.
    § 20. Every public officer who shall neglect or refuse to perform any duty required of him by any section of this act, shall, upon conviction thereof, be adjudged guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding one year, or both such fine and imprisonment; such conviction shall work a forfeiture of office in all cases, except those of judicial officers. Any person who shall, directly or indirectly, oppose or resist an officer, or any one called by him to his aid, in the execution of any duty under this act, shall be deemed guilty of a misdemeanor, and punished by a fine of not less than two hundred dollars, and by imprisonment not less than six months. The existing provisions of law relative to misdemeanors and of-fences, shall apply to offences created by this act, except where the same are inconsistent therewith.
    . § 21. There shall be allowed and included in every judgment for costs for the following services rendered under the provisions of this act, the following fees, which shall be audited and paid in the same manner as fees in other criminal cases, and whenever judgment shall be rendered for costs,.there shall be included therein fees for such prospective services as shall be necessary to enforce such judgments; and when no fees are herein provided, the same fees as are now provided in criminal cases for similar services:—
    To any magistrate performing the following services :
    For every warrant or summons of any kind, twenty-five cents.
    For the trial of any claim, one dollar for each day actually engaged therein.
    For a certificate of conviction, twenty-five cents.
    For taking and certifying complaint to another magistrate, fifty cents.
    To any sheriff or other officer performing the following services :
    For "serving summons for witnesses, for each person served, twenty-five cents.
    
      For executing any warrant of search, or making any seizure without process, one dollar.
    For. conveying liquor seized to the place of storage, fifty cents, besides the necessary expenses of labor, cartage ■ and storage.
    For executing warrant for destruction of forfeited liquor, besides actual expenses, one dollar.
    For conveying certified complaint to any magistrate, twenty-five cents.
    For every mile necessarily traveled, more than one, in performing any of the above services, six cents.
    To the person, other than the complainant, summoned to witness the destruction of forfeited liquor, for witnessing such destruction, and joining with the officer in making proof thereof, one dollar.
    To any supervisor or superintendent of the poor, or overseer of the poor, two dollars for each day in which he is necessarily and actually engaged in attending to any complaint, or prosecution, and six cents for each mile necessarily traveled.
    § 22. Nothing in this act shall be construed so as to prevent the sale of cider in quantities not less than ten gallons. But no cider so sold shall be drank on the premises of the seller; and any such drinking, or a re-purchase by the seller of a portion of the cider sold by him, shall subject him to the penalties provided in section third of this act. Nor shall this act be construed so as tp prevent the manufacturer of alcohol, or of pure wine from grapes grown by him, from keeping or from selling such alcohol or wine, nor the importer of foreign liquor from keeping or selling the same in the original packages, to any person authorized by this act to sell such liquors. Nor shall any provision of this act be construed to prohibit the manufacture or keeping for sale, nor from selling, burning fluids of any kind, perfumery, essences, drugs, varnishes, nor any other article which may be composed in part of alcohol or other spirituous liquors, if not adapted to use as a beverage, or in evasion of this act. Nor shall it be lawful to seize, sell or destroy any liquors deposited or found in any bonded warehouse within the limits of this state, nor prevent any liquors imported into the United States from being taken from such bonded warehouse to any place beyond the limits of this state. The term “ intoxicating liquor,” and “ liquor,” as used in this act, shall be construed to extend to and include alcohol, distilled and malt liquors, and all liquors that can intoxicate, and all drugged liquors, and mixed liquors, part pf which is alcohol, distilled or malt liquor.
    § 23. It shall be the duty of the presiding judge of every court of oyer and terminer, and of every court of sessions, specially to charge every grand jury to inquire into all violations of or offences under this act.
    § 24. All acts and parts of acts, and all charters and parts of charters, inconsistent with this act, are hereby repealed. But no suit commenced, or indictment found, before this act takes effect, shall in any manner be affected thereby,
    § 25. No license to sell liquor, except as herein provided, shall hereafter be granted. All liquor kept in violation of any provision or provisions of this act, shall be deemed, and is hereby declared to be a public nuisance.
    § 26. The second section of this act shall take effect on the ° first day of May next; section twenty-five shall take effect immediately; and all parts thereof on the fourth day of July next.
    J. F. Barnard and H. A, Nelson, for defendant, Berberrich,
    John Thompson and T. C. Campbell, for People, in the first cause.
    
    John A. Lott and A. Hadden, for defendant, Toynbee.
    
    John M. Van Cott and Nathaniel F, Waring, for People, in the second cause.
    
   Brown, Justice.

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 Intent to sell, and with having sold, intoxicating liquor, called ei lager bier.” He was brought before E. Q. Eldridge, Esq., county judge of Dutchess county, and upon a trial by a jury was found guilty. At this stage, and before sentence, the proceedings were removed into this court by certiorari.

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 the law of its value, and strikes down the vast and varied interests concerned in its importation, sale, and production: if it provides for the seizure, forfeiture, and destruction of an article or thing, the product of human industry, hitherto invested with the attributes of property, solely because its producers or owners design to make it the subject of sale and transfer, to deal in it and with it as property, and apply it to general uses,— then the question assumes a very different character, and we are brought to inquire whether an act pregnant with such consequences, and armed with such unusual and dangerous powers, is really within the sphere of legislative authority. It is just to observe, that while sales by persons generally, and for general uses, are expressly forbidden, there is no positive interdict against its general use when lawfully acquired. Yet as there can be no lawful sales after the act takes effect, except by the authorized vender for certain special purposes—and as the act is careful to impose one of its penalties upon the purchaser from authorized venders, under a false representation that it is designed for an authorized use—it seems clear that the intent was to interdict the general use.

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 for the condemnation and destruction of the liquor. Section 15 authorizes sheriffs, marshals, constables, and policemen to serve the process, arrest persons in the act of selling, and to seize, without warrant, liquor kept against the provisions of the act.

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 the oath demanded by the act, and discloses the facts upon which he relies to establish his innocence.

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.

In neither of these cases under consideration were the defendants impleaded or brought to trial upon the indictment of a grand jury. Indeed, the law contemplates no preliminary inquiry by the grand inquest. The counsel for the defenda'nts insist that it is, in this respect, in conflict with that part of section 6 of article 1 of the constitution, which declares that “no person shall be held to answer for a capital or otherwise infamous crime, (except, &c.,) unless on presentment or indictment of a grand jury.” This involves an inquiry into the character of the crime created by the act. Is it an infamous crime 1— Offences which rendered the perpetrator infamous at the common law, were treason, felony, and the crimen falsi. It is not easy to define the meaning of and extent of the latter term with certainty. It not only involved falsehood, but offences which injuriously affected the administration of justice. It was the infamy of the crime, and not the nature of the punishment, which constituted the crimen falsi. Thus a conviction for libel, or for seditious words, or for keeping a gambling-house, did not render a man infamous. (Wharton’s Crim. Law, 354; 1 Rus. on Crimes, 45; 1 Phil. Evid. 38; Barker agt. The People, 20 Johns. Rep. 457; Peak’s Evid. 126.)

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, manufacture, and distribution, are to be suspended or put down, and the interests which supply such trades and employments with capital, raw material, labor, and means of transport, are to find other fields of enterprise, or be put down with them. This brings me to consider the principal question discussed upon the argument, which is this:—Does the legitimate authority of the legislature extend to the enactment of laws prohibitory of the common and ordinary use of property'? Can this department of the government, in the execution of the trusts confided to it,-declare by statute an article or thing, the product of human industry, or the creation of human skill, long recognized as property, and of all but universal use, and perfectly inoffensive in itself, to be a public nuisance, and thus authorize and justify its destruction 1

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. The juice of the cocoa-nut tree yields its toddy wherever this valuable plant can be made to grow. Another palm affords a fermented wine on the Audean slopes of Chili: the sugar palm intoxicates in the Indian Archipelago, and among the Moluccas and Philippines; while the best palm wine of all is prepared from the sap of the oil-palms of the African coast. In Mexico the American aloe gave its much-loved pulque, and probably also its ardent brandy, long before Cortez invaded the ancient monarchy of the Aztecs. Fruits supply the cider, the perry, and the wine of many civilized regions—barley and the cereal grains the beer and the brandy of others: while the milk of their breeding mares supplies, at will, to the wandering Tartar, either a mild, exhilarating drink, or an ardently intoxicating spirit. And to our wonder at the wide prevalence of this taste, and our surprise at the success with which, in so many different ways, mankind has been able to gratify it, the chemist adds a new wonder and surprise, when he tells us that, as in the case of his food, so in preparing his intoxicating drinks, man has everywhere come to the same result. His fermented liquors, whenever and from whatever substances prepared, all contain the same exciting alcohol, producing everywhere, upon every human being, the same exhilarating effects.” The wines of France, Italy, and Spain, the beer of the German states, and the ale and porter of the British islands, enter largely into the domestic consumption of the inhabitants of those countries, as a part of their daily food. With our own citizens, the use of fermented liquors, in some form or other, is all but universal. Either as a beverage or in the preparation of their food, few families are entirely without it.

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 which he separates from the common stores of nature, appropriates to individual use, and impresses with character and attributes of property.

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 upon that of Lord Hobert, in Day agt. Savage, and of Lord Holt, in the City of London agt. Wood. Names, eminent as jurists and statesmen, are not wanting, who maintain that there are limitations upon legislative power not written in the constitution, which are implied from the nature of popular sovereignty and representative government.

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, (Com. 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 parliament. The masses in Great Britain have never yet attained to the consequence and dignity of a contest for their absolute, inherent rights, except through the legislative and the judicial branches. It is a historical truth, that the struggle there has constantly been to put the real or pretended prerogatives of the crown under restraint: sometimes by the barons, as in the time of the great charter; sometimes by the judges, as in the time of Lord Coke ; and sometimes by the parliament, and especially the house of commons, as in the times of the great rebellion, and the act for the settlement of the succession in 1688. We have incorporated the prohibitions of the English statutes for the protection of life, liberty, and property into our constitution, not as limitations upon executive authority, but as limitations upon legislative power. The same unrestrained dominion over property which the parliament and people of Great Britain have denied to the crown and reserved to parliament, the people of the state of New-York have denied to the legislature and reserved to themselves.

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 customary and unexceptionable act. But it cannot declare what the same term or expression means, and thus enlarge or restrain its signification, when used in the constitution. It is of no consequence what the legislature think of it, or what im- , port they attribute to it. The real inquiry is, what did the framers of the constitution mean by it, and what was its known legal definition and signification when the constitution was adopted 1 The word “ property ” must comprehend now whatever it comprehended in 1846. Any other rule would place at the absolute disposal of the legislature every right intended to be secured and consecrated by the limitations I have quoted.

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 character, &c. These are mere acts of regulation and conservation, and do not in the least impair the right of property.

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 agt. Kinzee, (1 How. Rep. 311.) and applying this principle to laws which impair the obligations of contracts, says: “ Although a new remedy may be deemed less convenient than an old one, and may, in some degree, render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contracts; but if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the constitution.”

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 tend to the deprivation of property, cannot, by any process of reasoning, be brought within, the meaning of the terms “by the laws of the land,” and “ by course of law,” used in the English statutes, or the “ due process of law ” of the 6th section of article 1 of the constitution. Lord Coke says, that the words “ by the law of the land,” mean, by the course and process of law, “ by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by original writ of the common law.” “ The law of the land, in bills of rights, does not mean merely an act of the legislature, for that would abrogate all restraints upon legislative authority. The clause means, that the statute which deprives a citizen of the rights of person and property, without a regular trial according to the course and usage of thé common law, would not be the law of the land' in the sense of the constitution.” (Hoke agt. Henderson, 4 Dev. 1.) The words “due process of law,” in this place, cannot mean less than a prosecution or suit instituted and qonducted according to the forms and solemnities for ascertaining guilt or determining the title to property. It will be seen that the same measure of protection against legislative encroachments is extended to life, liberty, and property ; and if the latter can be taken without a forensic trial and judgment, then there is no security for the others. If the legislature can take the property of A, and transfer it to B, they can take A himself, and either shut him up in prison or put him to death. But none of these things can be done by mere legislation. There must be “ due process of láw.” This expressive language of Mr. Justice Bronson, in Taylor agt. Porter, (4 Hill, 140,) has often been quoted, and cannot be too often repeated. It should be engraven upon the walls of the legislative chamber, as a perpetual memorial that there are-bounds to legislative authority. Vide, also, the opinions of Judge Denio and of the late Mr. Justice Edwards in Westervelt agt. Gregg, (2 Kernan, 202.)

“ 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 evideuce by which the guilt is to be ascertained or the title determined. These presumptions and rules are also a part of the remedial process of the law, and their alteration and modification is, doubtless, to a certain extent, within the power of the legislature; but in cases which affect the personal rights secured by the constitution, the changes must leave the right unimpaired, and place no material impediments or obstructions in the way of those who are concerned in asserting it. In trials for crimes, and to enforce penal statutes, the presumption of innocence obtains until it is disproved, in all cases, and in trials to redress civil injuries and enforce civil rights, the presumption of title and right is with the defendant until it otherwise appears, unless in his pleadings he voluntarily assumes the onus probandi. In proceedings which aim at the deprivation of liberty and property by fines and forfeitures, and the pains of imprisonment, that is not due process of law, which reverses the "wholesome and humane rules of the common law, and substitutes the presumption of wrong and guilt for that of right and innocence. In this respect the provisions of section 17 of the act are highly offensive.

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.

The 25th section proceeds upon a misapprehension of what a nuisance is. Common or public nuisances are offences “ against the public order or economical regimen of the state, being either the doing of a thing to the annoyance of the King’s subjects, or the neglecting to do a thing which the common-good requires.” (4 Black. Com. 196.) Impediments and obstructions placed in highways and navigable streams are nuisances per se, because they interrupt the passage and thereby annoy others. Trades and manufactures of certain kinds become nuisances from the places where and the manner in which they are conducted. Animals, such as dogs, swine, &c., are not nuisances until they become offensive by being suffered to run at large or kept in the vicinity of men’s habitations. So, an accumulation of vegetables and fruits in process of decay, the flesh and offal of animals, gunpowder, drains and sewers in cities and populous places, may or may not become public nuisances by their localities and other attendant circumstances. The true test is, that the thing, trade, or business, is in some way detrimental to the public; for the elementary writers say, “ common nuisances may be abated or removed by the party annoyed or injured, who is not required to wait for the slow progress of the ordinary forms of justice.”

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 degradation and grief, and anguish unspeakable. And then the places where they are thus used, and those concerned in prostituting them to such uses, fall clearly within the province of legislative regulation and control, and the maxim, "Sicutere tuo ut alienum non Iccdas,” applies in all its force. But intoxicating liquors cannot be deprived of the defences with which the constitution surrounds the property of the citizen, by an act proscribing it as a public nuisance.

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-wards. The act itself recognizes no such distinction, and does not discriminate between present and future acquisitions, but applies its penalties, forfeitures and disabilities with unsparing rigor to those who now own and to those who may hereafter own such property. In this respect I think it entirely consistent with itself; for a constitutional security which does not ■cover future as well as present acquisitions is of no practical value, and will afford no sort of guaranty against intentional or mistaken aggression.

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 package in which they were imported. It was argued, in behalf of the state, that whenever the goods entered its jurisdiction the power of congress ceased, and that of the state was substituted in its place. Chief Justice Marshall answered the argument in this wise :—

“ 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.

If the judgment in the case of Brown agt. The State of Maryland, and the reasoning of the chief justice, is entitled to any weight as authority, it is decisive of the question so far as sales of foreign liquors by importers is concerned. The right of importation, we see, means the right to introduce foreign goods into the country, and to sell them to those who may choose to become purchasers. If state legislation can substantially take away from the mass of its citizens the power to become purchasers, a state can, in effect, impede foreign trade, and put an end to foreign importations. It has only to declare—what the act under examination declares—that the importer shall only sell in the original packages, to such persons as the state may license and authorize to become purchasers. Sale is no longer incidental to importation. The importer’s right to dispose of his goods in the market, no longer depends upon the authority given to congress to regulate commerce and intercourse with foreign countries. But it depends alone upon the disposition of the states to suffer their citizens to become purchasers of foreign commodities. I am unable to perceive any difference between state resistance to foreign importations by interdicting sales by and purchases from the importer, and resistance by a preventive force stationed upon its own borders. Either mode is an unwarrantable interference with a subject of legislation over which congress has exclusive control and dominion.

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, mentioned in the act; so much of sections 6, 7, 10, and 12, as provide for its seizure, forfeiture, and destruction; so much of the 16th section as declares that no person shall maintain an action to recover the value of any liquor sold or kept hy him, which shall be purchased, taken, detained, or injured, unless he can prove that the same was sold according to the'provisions of the ■ act, or was lawfully kept and owned by him; so much of section 17 as declares that, upon the trial of any complaint under the act, proof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale; and so much of section 25 as declares that intoxicating liquor kept in violation of any of the provisions of the act, shall be deemed to be a public nuisance, are repugnant to the provisions of the constitution for the protection of liberty and property, and absolutely void.

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

S. B. Strong, Justice.

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 tried by a court of special sessions, but that he objected thereto, and offered to give bail to appear at the next court having criminal jurisdiction. The justice overruled the objection, declined to receive such bail, and required the defendant to plead to the charge.

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 acts were perpetrated, were such as to bring the supposed offence directly within the statute.”

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 means of redress to an existing wrong. In criminal cases it applies to .something that is already malum in se, or malum ■ prohibitum. It is then creative of the remedy only. As all are in favor of the due punishment of acknowledged crime, we readily admit that statutes designed for thát purpose are entitled to a favorable construction. But it is otherwise when the statute creates a new offence. It is then an innovation, often an encroachment upon previous rights,, and its correctness or justice is not always conceded, or generally admitted. The rule is, therefore, very properly, that such a statute should be construed strictly; that nothing should be deemed a crime under it but what is clearly and unequivocally defined. No man should be punished for an act (previously lawful) under a new statute, unless it clearly announces to him, beyond any reasonable doubt, that it is ■criminal. ' Now the statute under consideration is creating a new offence. True, it was a misdemeanor before, to sell strong or spirituous liquors or wines in quantities less than five gallons without a license. But the offence under the Revised Statutes was only a part of what was rendered a crime' under'the prohibitory act; and as the latter is integral, it is in effect new, and must be so considered.

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 If it did not go .to that extent. Instead of being an extension, it would be a relaxation of the old system.

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 statute. It does not cure the difficulty that the defendant is charged with having sold liquors contrary to the form of the statute. That will not aid a defective description of the of-fence. Nor can the defect be cured by evidence. The evidence must be confined to the charge, and the accused cannot be required to answer any complaint except that which sets out an offence conformably to the rules of law. My conclusion upon this point is, that the complaint was radically defective, and that a conviction upon it cannot -stand.

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 prolection. It is true, too, that the chance of escape of the guilty is increased by the same means. But in the administration of justice, it is at least as essential to protect the innocent as to punish the guilty. The right claimed by the defendant is an important one ; and if his claim was well founded, the subsequent proceedings should not have been had, and the judgment resulting from them against the accused was void.

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 the statute creates a new offence, and particularly describes a method of trial, and a punishment adequate to the offence for its violation, the complainants, whether the public or individuals, are confined to the remedies expressly given in such statute.

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. A crime newly created is subject to any constitutional regulations relative to the class of crimes generally. The constitutional provision refers to usage, and that must control and define its application. It is a matter of public notoriety, that accusations for crimes have generally been tried before a jury. If there have been exceptions, they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for that application. To allow the legislature to except from the operation of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law, and might in the end destroy its obligation.55

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 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 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 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 he 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. 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 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 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 proMbitory 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 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 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— lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.”

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, and created as much resistance in the old time, as would the denial of tea or coffee to our ladies at the present day. Whether those who have gone before us, including the greatest, wisest, and best of their days, were right in thus indulging their tastes, or whether their conduct was indiscreet, and deserved to be characterized as criminal,' according to the opinion of modern reformers, are not questions for the consideration of the judiciary. I allude to the former practice to show that intoxicating liquors were property with the general assent of mankind.

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 of our state constitution, subject—and no doubt lawfully subject—to the regulations contained in our excise laws. The supreme court of the United States has decided, on various occasions, that state laws regulating sales of intoxicating liquors are not prohibited by the constitution or laws of the United States. Some of the judges, in the license cases from three of the New England States to which I have alluded, expressed opinions that state laws prohibiting entirely intoxicating liquors, might not conflict with the powers conferred upon, and exercised by the general government; but the decision of that question was unnecessary, as it was admitted by the judges that the statutes of those states were not prohibitory.

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 contended, however, by the counsel for the people, that the sale of intoxicating liquors was not prohibited by the statute; that any of them might be sold for medicinal, manufacturing, and sacramental purposes; and that foreign liquors might be sold by the importers, in the original cask or vessel, to any one. The permitted sales would be very inconsiderable. And the statute, if carried into full, and its designed, operation would effectually” prevent its use, as an ordinary beverage, by the great mass of the people—the use for which it was mainly designed, and without which it would be of little or no value. It might be accessible to the wealthy, but would be unattainable by men of moderate means. That would create a distinction between the rich and the poor, which should ever be avoided in legislation—if it is desirable that our laws should be respected or enforced. It is no matter what may be the pretence, the denial would be a restriction; and that to be just, should operate upon all; if not equally, the inequality should not be the direct and palpable effect of the statute. I consider the statute in question as mainly prohibiting the sale of intoxicating liquors as a.beverage, and destructive of its principal value; and-.with that impression I must adjudge it to be null and void to that extent.

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 security which it enables the public to give to all that is retained.

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 our common country, and of our own state, from whatever quarter, or under whatever pretence, they may be assailed.

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.

Rockwell, Justice

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 consent of the governed, were instituted, to protect. They are defined as follows :—

“ 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 law-making power, in the exercise of its legitimate discretion^ decides that such improvements are conducive to the public good, no individuals, whose injuries are consequential merely, will be permitted to arrest the action of the government, or will even be entitled to compensation for the injury which he may sustain. (Radcliff’s Executors agt. The Mayor, &c., of Brooklyn, 4 Com. Rep. 195.)

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 question of legislative competency. The question still remains—■ Was the passage of the act an exercise of the legitimate discretion and power of the legislature, founded upon considerations of public policy, tending to promote the morals, the health, and safety of the community, or was it a mere wanton and unnecessary invasion of the private rights of individuals!

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 it. The great ends of public policy which it was intended to subserve, are clearly within the scope of legislative competency. The public evils which it was intended to suppress are the most formidable to the peace and welfare of society which those who make or administer the laws are called upon to encounter. Assuming that the legislature have acted in good faith, that they have not wantonly and unnecessarily invaded private rights, under the mere pretence of preventing public evils, I think the question, whether the public benefits are of greater weight or importance than the individual losses which will result from the prohibition of the sale of intoxicating liquor as & beverage, is one of legislative discretion, and with which the judiciary has no concern.. It was for the legislature to determine to what extent it was necessary to interfere with private rights in order to accomplish the great ends of public policy which they had in view; to array on the one side the serious loss of property, and derangement of business which must ensue from the passage of this law, and on the other the appalling statistics of intemperance, pauuerism, and crime, and then determine whether the public necessity was sufficiently urgent'to justify the individual wuong. \

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 interests are protected by the exception forbid such a construction. There is no law or treaty of the United States by which the right to sell any description of liquor is given directly or indirectly. The right to sell liquor, or other property, is not given by any law of the United States or the state of New-York. It exists as a necessary incident to the right of property, independently of any positive law. It has been held by the courts of the United States, that the right to sell liquor of a certain description, and in a certain condition, is secured by the operation of certain laws of the United States against any restraint of the right of sale by state legislation. That is to say, when the" act of congress authorizes the importation of liquor, the right of the importer to sell it results as a necessary incident to the right to import, and is secured to him against any interference on the part of the state legislature, by the paramount authority of congress. The question then .is, what description of liquor is it, the right to sell which, notwithstanding any prohibition by the laws of this state, is derived from, or secured by the act of congress 1 It is imported liquor, in the casks or packages in which it was imported. The exception from the prohibition is exactly co-extensive with the right to sell secured by the act of congress; and the exception was plainly and solely intended to avoid a conflict between the state and federal laws. Any other construction would be so totally at variance with the whole spirit, scope, and intention of the entire law, as in my judgment to be utterly inadmissible.

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:

“1. What was the common law before the making of the act?

“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 therewith, he should have been discharged. If there was probable cause to believe the defendant guilty, bail should have been taken, if offered by the defendant, for his appearance at the next court having cognizance of the offence. (2 R. S. 708, 709, 710.) '

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.  