
    COURT OF APPEALS.
    The People of the State of New-York upon the complaint of John Matthews, appellants, agt. Thomas Toynbee respondent. The People of the State of New-York, defendants in error, agt. James G. Wynhammer, plaintiff in error.
    [Note to opinion of Comstock, J.]
    The constitution of this state vests the “ legislative power” in the Senate and Assembly, subject, however, to some important special limitations. And,
    1st. “ No member of this state shall be disfranchised or deprived of any of the rights or privileges secured toJ any citizen thereof, unless by the law of the land or the judgment of his peers.” (Art. 1, § 1.)
    2d. “ No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” (Art. 1, § 6.)
    
      The “ Met to prevent Intemperance, Pauperism, and Crime f passed April 9, 1855, in its constitutional construction, falls within, and must be judged by, these limitations of the constitution.
    When this act was passed, intoxicating liquors, to be used as a beverage, were property, in the most absolute and unqualified sense of the term; and, as such, entitled to constitutional protection, the same as other property.
    If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species.
    If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness, with a view to its destruction. That which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes.
    The prohibitions and penalties of the “ Act to prevent Intemperance, Pauperism and Crime,”—{see 11 Hoto. Prac. Rep. 289, for the whole act,)—pass the utmost boundaries of mere regulation and police; and by their own force, assuming them to be valid, and faithfully obeyed and executed, would work the essential loss or destruction of the property at which they are aimed. The act, therefore, is in conflict with the provisions of the fundamental law of the state, and is unconstitutional and void.
    
    The spirit and intent of the act is to extinguish and annihilate intoxicating liquors as a beverage,—which, in all ages, has constituted their primary and principal use,—and, with few exceptions, so minute and trivial as scarcely to disturb the general scheme, one of fierce and intolerant proscription.
    When a law annihilates the value of property, and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit, of a constitutional provisión intended expressly to shield private rights from the exercise of arbitrary power.
    Legislative discretion, in regulating and controlling the traffic in intoxicating liquors, must preserve the right of the citizen to his property—a right which includes the power of disposition and sale, to be exercised under such restraints as a just regard, both to the public good and private rights, may suggest.
    In reference to the analogy between this act and the license and excise laws of this and other states, which are admitted to be constitutional, the answer is, the analogy does not exist, because, however difficult it may be to define, with accuracy and precision, the line of separation, there is a broad and perfectly intelligible distinction between what is plainly regulation on the one side, and what is prohibition on the. other.
    It is certain, that the legislature cannot totally annihilate commerce in any species of property, and so condemn the property itself to extinction. It is equally certain that the legislature can regulate trade in property of all kinds. Between regulation and destruction, there is somewhere, however difficult to define with precision, a line of separation. All reasoning from analogy, therefore, between the two cases, must be fallacious, because it is, simply, reasoning against admitted conclusions.
    So there is no reasoning by analogy between this law and other acts, producing great injury to private property,, which have been declared constitutional,— such as the embargo act of congress in 1807,—statutes conferring upon municipal corporations powers which, in their execution and ultimate result, inflict incidental or consequential injury,—the authorized destruction of buildings in the city of New-York, in cases of Are—laws of quarantine—laws against smuggling,—laws against gambling, &e., where property is specifically forfeited, and so the owner deprived of it.
    Because such laws were enacted either for the protection and conservation of property; or injuring it, in their effects only, in a remote and incidental result; or were founded upon, and were mere regulations of the common-law right of any person to destroy property in a case of immediate and overwhelming necessity. And others, that they only resemble the present law in the character of the punishments,—the prohibitions themselves being totally unlike, and relating mostly to different subjects,—the question being, whether the prohibitions, or any one of them, being constitutional and valid.
    And besides, it is an entire misconception of this law to say, that the species of property to which it relates is forfeited for a violation of its provisions. It is simply extinguished by the force of the prohibitions themselves.
    A forfeiture of goods implies a title to them, good against all the world, but if this law is valid, then the owner has no title to lose,
    
      [Note to opinion of Selden, J.]
    The quest cn in this case is not one of expediency, imtofpower. Every sovreeign state possesses within itself absolute and unlimited legislative power. There is no arbiter, beyond the state itself, to determine what legislation is just. While, therefore, the right of a sovereign state (where all its powers are concentrated in the hands of the people) to pass arbitrary and tyrannical laws may, its legal power cannot be denied.
    In a perfectly natural and simple distribution of the governmental powers,— (executive, legislative and judicial,)—it is not within the province of the judiciary to pronounce any act of the legislature void. It may, however, acquire this right through an artificial distribution of those powers by means of the organic law.
    Under our state constitution, (Jlrt. 1, § 3,) “ The legislative power of this state shall be vested in a Senate and Assembly.” This means, of course, the whole legislative power. But this legislative power is not equally absolute as it was with the people; because, by other clauses in the constitution a portion of it has been transferred to the judiciary. The constitution being the result of legislation by the people themselves, before parting with their power, is the paramount law. When, therefore, any law passed by the legislature conflicts with this, (the constitution,) the judiciary pronounces between them, as it does between the acts of two successive legislatures, and the paramount law-prevails
    
      To determine the extent of the law-making power, it is necessary only to look to the provisions of the constitution. It has, and can have no other limit than such as is there prescribed; and the doctrine that there exists in the judiciary some vague, loose, and undefined power to annul a law, because in its judgment it is “ contrary to natural equity and justice,” is in conflict with the first principles of government, and can never be maintained.
    The remedy for unjust legislation, provided it does not conflict with the organic law, is at the ballot-box; and there is no provision of the constitution, nor fundamental principle of government, which authorizes the minority, when defeated at the polls upon an issue involving the propriety of a law, to appeal to the judiciary, and invoke its aid to reverse the decision of the majority, and nullify the legislative power.
    The clauses in our state constitution—that “ no member .of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers,” and that no person shall “ be deprived of life, liberty, or property, without due process of law,” must be understood as intending to secure to every citizen a judicial trial, before he can be deprived of life, liberty, or property; that no person shall be deprived, by any form of legislation or governmental action, of either life, liberty, or property, except as the consequence of some judicial proceedings, appropriately and legally conducted.
    A law, therefore, which, by its own inherent force, extinguishes rights of property, or compels their extinction, without any legal process whatever, comes directly in conflict with the constitution.
    The first four sections, which embrace the prohibitory features of the act under consideration, with the specific penalties annexed to its violation, must be considered as to some of their provisions, as virtually depriving the owners of spirituous liquors of their property, without legal process, thereby rendering the whole act unconstitutional and void.
    
    Although the constitutionality of the general objects of the prohibitory law may not be questioned, but the power of the legislature to prohibit the sale of intoxicating liquors, for all except mechanical, chemical and medicinal purposes, fully conceded, it cannot be. admitted that the legislature has the right to compel their immediate and unconditional destruction, which this act substantially does.
    As to the argument, that the legislature has the conceded power to authorize the destruction of property in certain cases, for the protection of great public interests—such as the blowing up of buildings during fires, destroying infected articles in times of pestilence, the enactment of quarantine laws, &c.,—the answer is, that the legislature does not, in these cases, authorize the destruction of property; it simply regulates that inherent and inalienable right, which exists in eveiy individual, to protect his life and his property from immediate destruction. His justification rests upon the immediate and imminent danger to life and health, which such laws are enacted to avert.
    The reasoning which would apply the provisions of this law to such cases, would enable an individual to successfully argue, that because he has a right to protect his life or property from immediate destruction, he has, therefore, a right to resort to any measures he may deem necessary to guard against remote and contingent dangers.
    [ This decision affirms that of the supreme court, in the second district, in the first above-entitled cause,—(11 How. Pr. H. 239,)—and reverses that of the eighth district in the second above-entitled cause—(id. 530)—thus settling the tiMconsTiTUTioMAMTr of the prohibitory liquor law of April 9, 1855.]
    
      March Term, 1856.
    John M. Van Cott, and
    
    Albert Sawin, jor sustaining the constitutionality of the law.
    
    John A. Lott, and
    
    Amasa J. Parker, contra.
    
   Comstock, J.

The defendant (Wynhammer) was indicted and convicted by a common-law jury, in the court of sessions of Erie county, for selling liquors in small quantities contrary to the “ Act to prevent Intemperance, Pauperism and Crime,” passed April 9,1855. The indictment contains no allegations to bring the law within any of the excise laws of the state, even if those can be regarded as unrepealed, and the conviction therefore must stand, if it can stand at all, upon the statute referred to.

It was admitted on the trial that the defendant was the owner of the liquors in question before and at the time the law took effect; and his counsel insisted that he was entitled to an acquittal on the ground, among others, that the statute was unconstitutional and void. The proposition was overruled. The supreme court in the eighth district affirmed the conviction,— thus determining that the act, in its prohibitory clauses, was constitutional and valid; and this is the only question I shall consider.

The constitution of this state has vested “the legislative power ” in the senate and assembly, subject, however, to some special limitations, which are of very great interest and importance. It is declared, (Art. 1, § 1,) that “ no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”

It is further declared, (Art. 1, § 6,) “ that no person shall be deprived of life, liberty, or property, without due process of law. Nor shall private property be taken for public use without just compensation.” Without inquiring into the extent of legislative power in the absence of special restraints, I think the case before us can be, and should be determined under these limitations, the construction, force and application of which will be hereafter considered.

And in determining the question, whether the “ Act to prevent Intemperance, Pauperism and Crime,” was an exercise of power prohibited to the legislature, an accurate perception of the subject to which it relates is the first requisite. It is, then, I believe, universally admitted that when this law was passed, intoxicating liquors, to be used as a beverage, were property in the most absolute and unqualified sense of the term; and as such, as much entitled to the protection of the constitution as lands, houses, or chattels of any description. From the earliest ages they have been produced and consumed as a beverage, and have constituted an article of great importance in the commerce of the world. In this country, the right of property in them was never, so far as I know, for an instant questioned. In this state, they were bought and sold like other property; they were seized and sold upon legal process for the payment of debts; they were, like other goods, the subject of actions at law, and, when the owner died, their value constituted a fund for the benefit of his creditors, or went to his children and kindred, according to law or the will of the deceased. They entered largely into the foreign and internal commerce of the state, and when subjected to the operation of this statute many millions in value were invested in them. In short, I do not understand it to be denied that they were property in just as high a sense as any other possession which a citizen can acquire. Judicial authority might be cited, but this does not seem necessary, where there is scarcely a controversy.

It may be said, it is true, that intoxicating drinks are a species of property which performs no beneficent part in the political, moral, or social economy of the world. It may even be urged, and I will admit, demonstrated with reasonable certainty, that the abuses to which it is liable are so great that the people of this state can dispense with its very existence, not only without injury to their aggregate interests, but with absolute benefit. The same can be said, although, perhaps, upon less palpable grounds, of other descriptions of property. Intoxicating beverages are by no means the only article of admitted property and of lawful commerce in this state, against which arguments of this sort may be directed. But if such arguments can be allowed to subvert the fundamental idea of property, then there is no private right entirely safe, because there is no limitation upon the absolute discretion of the legislature, and the guarantees of the constitution are a mere waste of words.

The foundation of property is not in philosophic or scientific speculations, nor even in the suggestions of benevolence or philanthropy. It is a simple and intelligible proposition, admitting, in the nature of the case, of no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculations in science, in morals, or economy.

These observations appear to me quite elementary, yet they seem to be necessary in order to exclude the discussion of extraneous topics. They lead us directly to the conclusion that all property is alike in the characteristic of inviolability. If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species. There may be, and there doubtless are, reasons of great urgency for regulating the trade in intoxicating drinks, as well as in other articles of commerce. In establishing such regulations merely, the legislature may proceed upon such views of policy, of economy, or morals, as may be addressed to its discretion. The whole field of discussion is open, when the legislature, keeping within its acknowledged powers, seeks to regulate and restrain a traffic, the general lawfulness of which is admitted; but when the simplest question is propounded, whether it can confiscate and destroy property lawfully, acquired by the citizen in intoxicating liquors, then wre are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities,or the mischief engendered by its abuse, have very little to do with the inquiry. Property, if protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently acquired under existing laws, and not upon any theory which even so much as opens the question of its utility. If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness with a view to its destruction. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes.

Sir William Blacicstone, who wrote of the laws of England nearly a century ago, said :—

“ So great is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public,' but the law permits no man, or set of men, to do this without the consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and frequently does interfere, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property, in an arbitrary manner, but by giving him a full indemnity and equivalent for the injury thereby sustained.” (1 Bl. Com, 139.)

While this language of the English commentator by no means expresses the full force of the limitation imposed upon the legislature by the people of this state in their written constitution, it contains, nevertheless, a vindication of the sanctity of private property as against theories of public good, eminently applicable to our own condition and times.

In a government like ours, theories of public'good or public necessity may be so plausible, or even so truthful, as to command popular majorities. But whether truthful or plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the right of property.

The views thus far expressed, the substance of which I think must command a general assent, would seem to narrow the field of inquiry. Do the prohibitions and penalties of the “ Act to prevent Intemperance, Pauperism and Crime,” pass the utmost boundaries of mere regulation and police, and by their own force, assuming them to be valid and faithfully obeyed and executed, work the essential loss or destruction of the property at which they are aimed1? If they do, then, so far as I can see, nothing remains, except to apply the provisions of the fundamental law of the state, and the act must be declared unconstitutional and void. In my judgment, they do plainly work this result.

We must be allowed to know, what is known by all persons of common intelligence, that intoxicating liquors are produced for sale and consumption as a beverage; that such has been their primary and principal use in all ages and countries; and that rit is this use which has imparted to them, in this state, more than ninety-nine hundredths of their commercial value. It must follow that any scheme of legislation which, aiming at the destruction of this use, makes the keeping or sale of them as a beverage, in any quantity, and by any person, a criminal offence—which declares them a public nuisance—which subjects them to seizure and physical destruction, and denies a legal remedy, if they are taken by lawless force or robbery, must be deemed in every beneficial sense, to deprive the owner of the enjoyment of his property.

Such I understand to be precisely the character of this law. The only sales which it permits (vide § 2) are for mechanical, chemical and medicinal purposes—and of wine for sacramental use. Even this exception, minute and special as it is, is attended with extraordinary conditions. The person proposing to sell is prohibited, if he pursues any one of some fifteen or twenty lawful avocations; he must be a man of totally abstinent habits; he must give stringent bail, and he must have a good moral character. Sales may also be made to the authorized venders, but as they can only sell for the particular purposes enumerated, of course sales to them cannot be made in contemplation of any other purpose or use.

With these exceptions, so minute and trivial as scarcely to disturb the general scheme, the act is one of fierce and intolerant proscription. It is unlawful to sell intoxicating liquors, to keep them for sale, or with intent to sell, or to keep them at all. (§ 1.) They are declared a public nuisance; (§ 25;) and-not only by that declaration, but by another express provision, all legal protection is withdrawn from them. (§ 16.) If the owner attempts to sell them, he can maintain no action for the price; and if they are taken from him by force or fraud he is remediless. (§ 16.) .

In other parts of the act special provisions are contained for seizure, judicial condemnation and destruction. (§§ 5, 6, 7, 8, 9, 10, 11, 12 & 13.) But the act by no means waits for the operation of this machinery. Itself pronounces the sentence of condemnation, and the judicial machinery, such as it is, which it provides, are agencies merely to insure the execution of the sentence. Property is lost before the police are in motion, and, I may add, crime is committed without an act or even an intention. On the day the law took effect, it was criminal to be in possession of intoxicating liquors, however innocently acquired the dqy before. It was criminal to sell them, and, under the law, therefore, no alternative was left to the owner, but their immediate destruction. (Vide § 4.)

It will be seen, therefore, that, aside from the exceptional cases which have been stated, and as a beverage without exception, intoxicating liquors are laid under the ban of absolute and unqualified condemnation. As property, they are stripped-of the fundamental principle of sale, and their commercial value thus annihilated. They are, moreover, devoted to physical destruction. Special agencies for destruction are provided, but before these are set in motion the law itself condemns them as property, in a series of provisions entirely free from ambiguity or doubt. It was said on the argument, that notwithstanding the sweeping prohibitions of sale, the owner might still keep them, and even export them, and so effect a total or partial saving of his property. If this were so, I do not see how it would affect the question under consideration. If laws contrived for the destruction of property within the state are unconstitutional and void, this cannot be upheld, even though special leave be given to the owner to remove it from the state, and so place it beyond the reach of those, laws. But the suggestion is founded in a misapprehension of the act. From the' instant it took effect, intoxicating liquors could not lawfully be kept a single hour with a view to exportation, or kept at all, except for the special purposes of medicine, the sacrament, or for mechanical or chemical uses. It might be smuggled away, but that would not be the fault of the law. It would be quite as logical to say, that an act to deprive a man of his liberty or life, without a trial, is constitutional, because there is a possibility .that he may run away and thus escape.

There are many provisions of this act which were reviewed at length on the argument, and which might now receive a more particular notice. But the summary exposition which has been given is enough for the present purpose. Proceeding upon the admitted hypothesis that the subject thus denounced and proscribed is property, and like other property essentially inviolable, the inquiry will remain whether the constitution does not expressly prohibit such legislation 1

It has been urged upon us, that the power of the legislature is restricted, not only by the express provisions of the written constitution, but by limitations implied from the nature and form of our government: that, aside from all special restrictions, the right to enact such laws is not among the delegated powers of the legislature, and that the act in question is void, as against the fundamental principles of liberty, and against common sense and natural rights. High authority, certainly, has been cited to show that laws which, although not specially prohibited by written constitutions, are repugnant to reason, and subvert clearly vested rights, are invalid, and must so be declared by the judiciary.

In Calder and wife agt. Bull, (3 Dallas, 386,) Judge Chase said, “ I cannot subscribe to the omnipotence of a state legislature, or ihat it is absolute and without control, although its authority should not be restrained by the constitution or fundamental law of the state. The nature and end of legislative power will limit the exercise of it. This fundamental principle" flow's from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor refrain from acts which the laws permit. There are , acts which the federal or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by a positive law, or to take away that security for personal liberty or private property, for the protection whereof government was established. * * * A few instances will suffice to explain what I mean : A law that punishes a citizen for ah innocent action, or, in" other words, for an act which, when done, was in violation of no existing law—a law which destroys or impairs the lawful private contracts of citizens—a law that makes a man a judge in his own case—a law that takes property from Ji and gives it to B. It is against all reason and justice for a people to entrust a legislature with such pow'ers, and therefore it cannot be presumed that they have done it. The legislature cannot change

innocence into guilt, or punish innocence as- a crime, or violate the right of- antecedent lawful private contract, or the right of private property.”

Chief Justice Marshall said, in-Fletcher agt. Peck, (6 Cranch, 135,) “ It may be doubted whether the nature of society and of government does not prescribe some limits to the legislative power;, and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized'without compensationV> (See also Dash agt. Van Kleeck, 7 Johns. 477; Taylor agt. Porter, 4 Hill, 146—per Bronson, J.; Goshen agt. Stonington, 4 Conn. 225—Hosmer, J.)

I entertain no doubt that, aside from the special limitations of the constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are, by the constitution, distributed to other departments of the government. It is only the “ legislative power ” which is vested in the senate and assembly. But where the constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in' attempting to define the limits of this power. Chief Justice Marshall said, (Fletcher agt. Peck, supra,) “How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated.” That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason'or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am, that no rule can be laid down in terms which may not contain the germ of great mischief to' society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government.

Nor is it necessary to push our inquiries in the direction indicated. There is no process of reasoning by which it can be demonstrated that the “ Act to prevent Intemperance, Pauperism and Crime,” is void upon principles and theories outside of the constitution, which will not also, and by an easier induction, bring it in direct conflict with the constitution itself.

I am brought, therefore, to a more particular consideration of the limitations -of power contained in the fundamental law: “ No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. No person shall 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 have been incorporated, in substance, into all our state constitutions. They are simple and comprehensive in themselves, and. I do not perceive that they derive any additional force or meaning by tracing their origin to Magna Charta and the later fundamental statutes of Great Britain. In Magna Charta, they Were wrested from the king as restraints upon the power of the crown. With us, they are imposed by the people as restraints upon the power of the legislature.

No doubt, it seems to me, can be admitted of the meaning of these provisions. To say, as has been suggested, that the law of the land, or “ due process of law,” may mean the very act of legislation which deprives the citizen of his rights, privileges, or property, leads to a simple absurdity. The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away.

The true interpretation of these constitutional phrases is, that where rights are acquired by the citizen under the existing law, there is no power in any branch of the government to take them away; but where they are held contrary to the existing law, or are forfeited by its violation, then they may be taken from him—not by an act of the legislature, but in the due administration of the law itself, before the judicial tribunals of the state-The cause or occasion for depriving the citizen of his supposed rights must be found in the law as it is, or, at least, it cannot be created by a legislative act which aims at their destruction. Where rights of property are admitted to exist, the legislature cannot say they shall exist no longer; nor will it make any difference although a process and a tribunal are appointed to execute the sentence. If this is the “ law of the land,” and “ due process of law,” within the meaning of the constitution, then the legislature _is omnipotent. It may, under the same interpretation pass a law to take away the liberty or life without a pre-existing cause, appointing judicial and executive agencies to execute its will. Property is placed, by the constitution, in the same category with liberty and life.

Clear as this matter stands upon principle, it is equally well-settled by authority. Chief Justice Gibson, of Pennsylvania, speaking of a similar clause in the constitution of that state, and of the right of property as protected by it, said,

“What law1? Undoubtedly a pre-existing rule of conduct, not an ex post facto rescript, or decree, made for the occasion. The design of the convention was to exclude arbitrary power from every branch of the government; and there would be no exclusion of it if such rescripts or decrees were to take effect in the form of a statute.• The right of property has no foundation or security but the law; and when the legislature shall successfully attempt to overturn it, even in a single instance, the liberty of the citizen is no more.” (Norman agt. Heist, 5 Watts & Serg. 193.)

And Chief Justice Bronson, of this state, in Taylor agt. Porter, (4 Hill, 145,) said, “ The words law of the land,’ as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this 'part of the constitution into mere nonsense.”

And again : “ The meaning of the section, then, seems to be, that no member of the state shall be disfranchised of any of his rights and privileges, unless the matter be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation.”

Again he adds, speaking of the words “ due process of law,” “If the legislature can take the property of A, and give 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.”

Chief Justice Ruffin, of North Carolina, in a very able and elaborate judgment, involving the construction and force of a similar clause in the constitution of that state, laid down the doctrine that the terms “ law of the land ” do not mean “ merely an act of the general assembly. If they did,, every restriction upon the legislative authority would be at once abrogated.” “In reference,” he adds, “to the infliction of punishment and divesting of the rights of property, it has been repeatedly held in this state, and it is believed in every state in the Union, that there are limitations upon the legislative power notwithstanding those words; and that the clause itself means that such legislative acts as profess, in themselves, directly to punish persons, or to deprive the citizen of his property without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law, as derived from our forefathers, are not effectually ‘ laws of the land,’ for those purposes.” (Hoke agt. Henderson, 4 Dev. 18.)

Chancellor Kent (2 Comm. 13) says, “ The words, c law of the land,’ as used originally in Magna Charta, in reference to this subject, are understood to mean, due process of law, that is, by indictment or presentment of good and lawful men: ‘ and this,’ says Lord Coke, 1 is the true sense and exposition of those words.’ The better and larger definitions of due process of law is, that it means law in its regular course of administration through courts of justice.” (See, also, Story on the Const. 661; 10 Yerger; 2 Coke Inst. 45-50.)

It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial investigation, not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question whether, under the pre-existing rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed. A proposition so obvious would have deserved less consideration if a singular misapprehension in regard to it did not appear to have prevailed in a decision not now before us for review, but upon the act under examination, pronounced in another branch of the supreme court. (People agt. Quant, in the 4th district—since reported ante page 83.)

We are brought, then, directly to the question, does the “Act to prevent Intemperance, Pauperism and Crime,” in a just constitutional sense, deprive the citizens of this state of their property in intoxicating liquors 1 We have already seen that this species of property is just as inviolable as any other. That by the operation of this law its commercial value is annihilated; that it cannot be sold; that it is unlawful to keep it; that all legal protection is withdrawn from it; and that it becomes a public nuisance. Is the owner “ deprived ” of it within the fair meaning of the constitution 1 I bring the act to this particular test, because if it can stand with this clause of the constitution, it can with every other.

Now, I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society. In a state of nature property did not exist at all. “ Every man might then take to his use what he pleased, and retain it if he had sufficient power; but where men entered into society, and industry, arts and sciences were introduced, property was gained by various means, for the securing whereof proper laws were ordained.” (Tomlin’s Law Dic., Property; 2 Bl. Comm. 34.)

Material objects, therefore, are property, in the true sense, because they are impressed by the laws and usages of society with certain qualities, among which are, fundamentally, the right, of the occupant or owner to use and enjoy them exclusively, and his absolute power to sell and dispose of them; and as property consists in the artificial impression of these qualities upon material things, so, whatever removes the impression destroys the notion of property, although the things themselves may remain physically untouched.

Nor can I find any definition of property which does not include the power of disposition and sale, as well as the right of private use and enjoyment. Thus Blackstone says, (1 Comm. 138,) The third absolute right of every Englishman is, that of property, which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”

Chancellor Kent says, (2 Comm. 110,) “ The exclusive right of using and transferring property follows as a natural consequence, from the perception and admission of the right itself.”

And again, (p. 320,) “ The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience and mutual wants.”

•By another author, property is defined as an exclusive right to things, containing not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or giving them away to any other person without consideration, or even throwing them away.” (Bouvier’s Law Dic. T. A. property.)

These definitions are in accordance with the general sense of mankind. Indeed, if any one can define property eliminated of its attributes, incapable of sale, and placed without the protection of law, it were well that the attempt should be made.

The statute under consideration, without reference to its provisions for the seizure and physical destruction of intoxicating liquors, by force of its prohibitions alone, sweeps them from the commerce of the state, and thus annihilates the quality of sale, which makes them valuable to the owner. This is destructive of the notion of property.

I need, perhaps, take no further notice of their qualified vendibility for the sacrament, and the other special uses named in the act. These are only the occasional and incidental uses of the article. It is the general and primary use which is aimed at. It is the mass of property which is struck down; and the possible conservation of an extremely insignificant portion, cannot change the character of the law.

No ingenuous advocate of the law will deny that its great characteristic is prohibition, intended to turn back from the channels of commerce important masses of property, and thus, by suppressing the use, to prevent the abuse. To regard the act in any other light would be a fraud upon its entire policy, and upon the views and motives in which it must be supposed to have had its origin. And in order to a full view of the spirit and intent of the law, to simple prohibition, we must add its penalties and its other connected and dependent clauses—the whole forming one scheme, and all tending, with fatal accuracy, to the destruction of property in intoxicating liquors within this state.

Unless, therefore, the right of property in liquor is denied altogether, and this has never been done, or unless they can be distinguished from every other species of property, and this has not been attempted, the act cannot stand consistently with the constitution. The provisions of the constitution should receive a beneficent and liberal interpretation, where the fundamental rights of the citizen are concerned. But, in the case before us, its plain and obvious meaning is enough. “No person can be deprived of his property without due process of law” by the legislature or any other power of the government.

When a law annihilates the value of property, and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power.

I have not reached this result without an attentive examination of the arguments which have been urged in favor of an opposite conclusion. Such of them as may appear to have most weight, or to have been most relied on, may here be noticed.

Prominent among these suggestions, our attention has been directed to a supposed analogv between the act under consideration and the license and excise laws of this and other states, the constitutionality of which is not questioned. I think the analogy does not exist. However difficult it may be to define, with accuracy and precision, the line of separation, there is a broad and perfectly intelligible distinction between what is plainly regulation on the one side, and what is plainly prohibition on the other. In another case great difficulty may attend the inquiry, but not greater certainty than often attends judicial investigations. The inquiry is essentially judicial in its nature ; and whenever a case of difficulty arises, it must be met and determined upon its special circumstances, and by the aid of such lights as can be obtained. In the present case, the difficulty suggested is not perceived. The statute we are examining passes the utmost limit of regulation, and does not even wear a disguise. It is plainly prohibitory in every feature, and in its entire scope and policy. Some of the excise acts referred to were of great stringency, considered as regulations merely of traffic in intoxicating liquors; but none of them totally prohibited their sale as a beverage, or denied to them as such, the essential qualities of property, or placed them without the protection of the laws.

It is certain, that the legislature cannot totally annihilate commerce in any species of property, and so condemn the property itself to extinction. It is equally certain that the legislature can regulate trade in property of all kinds. Neither of these propositions is denied; but. they necessarily lead to another—that between regulation and destruction there is somewffiere, however difficult to define with precision, a line of separation. All reasoning, therefore, in favor of upholding legislation which belongs to one class, because it is often difficult to distinguish it- from that which belongs to the other, must be fallacious, because it is simply reasoning against admitted conclusions.

The provision in the federal constitution, declaring that no state shall pass laws impairing the obligation of contracts, and the course of judicial decision under that provision, may be referred to as illustrating the distinction between legislation which is remedial merely, and that which is subversive of the rights intended to be saved. Under this provision the constitutionality of state laws has often been examined, and the difficulty of distinguishing between statutes which regulated the remedy and those which impaired or subverted the right, has been great and acknowledged. But the distinction itself has been steadily maintained. Neither the federal nor the state courts have ever shrunk from the inquiry; and laws which transcended the limits of regulation merely, and directly or indirectly invaded the right, have been uniformly adjudged to be void.

Nor could we escape the kindred inquiry in the case before us, although it were attended with much greater difficulty than we believe it to be. Does the statute under consideration simply regulate, or does it destroy an admitted species of property, in which millions of value are invested 1 As this question is answered, the act must stand or fall; and in our judgment but one answer can be given.

Besides the license and excise laws, our attention has been drawn to other legislative enactments, producing, in their result, great injury to private property, the constitutionality of which has been admitted or adjudged. The embargo act of congress, in 1801, (2 Statutes at Large, 451,) is mentioned as one of these examples of legislation. I do not perceive any analogy which can influence the present question. That was an act which simply prevented “ all ships and vessels in ports and places within the limits or jurisdiction of the United States ” from sailing upon any enterprise of foreign commerce. It is not important to inquire under what particular clause of the federal constitution the power was derived to enact such a law. That it went to the utmost verge of constitutional power has been universally conceded. (3 Story on the Constitution, 163.) It is enough for the present purpose to say, that it was recommended and adopted as a measure of protection to property, and not of annihilation.

In the language of Justice Story, (id. 161,) “It was avowedly recommended as a measure of safety for our vessels, our seam.en and our merchandise, from the threatening dangers from tile belligerent powers of Europe.” In other words, it was all act of conservation, and not of destruction, although in its effect it bore with great severity upon the interests of the commercial states, and upon the property of individuals. It did not aim at the extinction of any species of property, or of any of its attributes. If congress, proceeding upon a theory that all foreign commerce was injurious to the interests of the nation, and the morals and habits of the people, had passed an act intended to destroy it perpetually, and for that purpose confiscating ships and vessels, prohibiting their sale, malting it unlawful to keep them with intent to sell, or keep them at all, and declaring them a nuisance, and such a law had been adjudged valid, then, and I think not till then, an analogy might be traced having something to do with the question before us.

Statutes conferring upon municipal corporations powers, which, in their execution and ultimate result, inflict incidental or consequential injury upón the property of individuals—injury for which it is said the law affords no remedy—have been adjudged constitutional. In legislation of this kind it is also supposed some warrant can be found for the act under consideration. Here, again, the analogy fails. Laws of this character proscribe no species of property. They may injure it in their remote and accidental result, but they do not, like this act, say it shall not be allowed to exist at all, or strike directly at the qualities and attributes, without which it can have no legal existence. The constitutional requirement is, that no person shall be deprived of his property, and that private property shall not be taken for public use without just compensation. It is nowhere declared, that in the exercise of the admitted functions of government, private property may not receive remote and consequent injury without compensation. (See Radcliff’s Executors agt. The Mayor of Brooklyn, 4 Comt. 195.)

The authorized destruction of buildings in the city of New-York, by direction of the mayor and aldermen, in order to prevent the spread of a conflagration, (2 R. L. of 1813, p. 368, § 81,) has been referred to as a constitutional exercise of legislative power which deprives a citizen of his property. It is enough to say of such statutes that they are founded upon and are mere regulations of the common-law right of any person to destroy property in a case of immediate and overwhelming necessity to prevent the ravages of fire or pestilence. (2 Kent Comm. 339; Russell agt. The Mayor, &c., of New-York, 2 Denio, 461; 17 Wend. 285; 25 id. 157.) Statutes of this description merely appoint a municipal agent to judge of the emergency, and direct the performance of acts which any individual might do at his peril without any statute at all. If such legislation can prove anything to the present purpose, it would show that these powers of destruction may be invoked in order to reform the morals and habits of society, and therefore that authorized agents of the legislature, or individuals without authority, may go forth on a roving commission to seize and destroy all intoxicating liquors within the borders of the state, and plead an overruling necessity as a justification of their lawless acts. l)his would be a mission which philanthropists and reformers have not yet undertaken, and certainly which no judge or lawyer would defend.

Other examples of legislation have been cited which may be grouped together and considered at a single view. Laws of quarantine, which detain ships for a limited period, coming from places where pestilential diseases exist; laws against smuggling, which forfeit the goods and the vessels in which they are conveyed, for non-payment of impost duties; laws, against gambling, which forfeit the tools and implements with which the offence is committed; laws against horse-racing, under which it is said the horses unlawfully used are forfeited; laws against selling liquors to Indians, under which the liquors themselves may be forfeited. Examples of this sort are supposed to have a peculiar application to the question, because, by the force of statutes of admitted validity, property is specifically forfeited, and so the owner deprived of it. There is, however, a fallacy in all reasoning and illustration from such sources, which can be readily exposed.

And the precise and fatal difficulty in the argument is, that the only resemblance between the statutes referred to, and the one under consideration, is in the character of the punishment. The prohibitions themselves are totally unlike, and relate mostly to different subjects. That the punishment for violating such prohibitions is similar, or even the same, amounts to nothing, when the question is whether the prohibitions themselves, or any one of them, is constitutional or valid. Take, for example, the instance of smuggling. No one doubts the power of congress to prohibit the importation of goods without the payment of duties, nor, consequently, that the offender may be punished by a forfeiture of the goods, by pecuniary fine, or imprisonment. But whether the legislature of this state has power to prohibit the keeping or sale of property in general, or any particular species, is the precise question now to be determined. When that is first established, then the owner who violates the prohibition may lose his property, or be fined, imprisoned, banished, or put to death.

It is certainly a simple proposition, that an admitted public offence against a constitutional statute may be punished by loss of property, of money, of liberty, or of life; but how this tends to show that another statute, prohibiting things of a totally different character, and similar only in its sanction or penalty, is valid, and the offence itself constitutionally created, is what I have been unable to perceive. In a word, to trace an analogy between two statutes in the manner of enforcing them, or punishing the offender, does not advance a step toward proving that either the one or the other is constitutional, or the contrary.

The illustration from the statutes referred to, and all others which can be referred to, fails for another reason of great significance, which seems to have been overlooked by those who assert the validity of the prohibitory law. It is an entire misconception of the law itself to say that the species of property to which it relates is forfdted for a violation of its provisions. It is simply extinguished by the force of the prohibitions themselves. In other parts of the act, pecuniary penalties and imprisonment are inflicted, but the loss of property is not exacted as a forfeiture at all in any just or ordinary sense of the term. It is quite absurd to say of a law which enacts, in substance, that property of a particular species shall no longer exist, that it imposes a forfeiture of such property as the punishment for violating the prohibition. There is no offence except the misfortune of being the owner, A forfeiture of goods implies a title to them, good against all the "world; but if this law is valid, then the owner has no title to lose. Analogies for such legislation will be sought for in vain.

In respect to one of the statutes which have been mentioned, that which prohibits the sale of intoxicating liquors to Indians, it should be further observed, that Indians are considered as persons inops consilii under the tutelage of government, and in the same category with minors, habitual drunkards, &c. These classes of persons are particularly the subjects of governmental careand to concede that the legislature may constrain or prohibit the sale of spirituous liquors to them, is only admitting that it may regulate traffic in any species of property—an admission which suggests the distinction already sufficiently considered between the power to regulate and the power to destroy. •

It has been said, also, that the admitted power of taxation may he so exercised under legislative authority as greatly to impair the value of private property. This is undoubtedly true, but it throws no ■ light upon the present question. The power maybe wisely or unwisely, justly or unjustly exercised • but as a power, it rests upon the theory that full compensation is received by the individual in the benefit conferred by the tax itself. The support of government, and other objects of public utility promoted by taxation, are supposed to return to the individual the value which has been taken from him as his share of the public burden. This is neither depriving a man of his property, in a constitutional sense, nor taking it for public use under the right of eminent domain.

Again, it may be suggested, if, in a given case, it could be plainly seen that the confiscation and extinction of a species of property were the essential object of a statute, it should be declared unconstitutional, although disguised under the forms of taxation.

It has also been supposed that some authority for legislation of this kind is found in the observation of one or two of the judges of the supreme court of the United States, delivered where the license laws of Massachusetts, Rhode Island and New-Hampshire, were examined in that court. (5 Howard, 504.) This is quite a mistake. The question involved and determined was, that the excise laws of those states did not conflict with the authority of congress to regulate commerce with foreign countries, and among the states. Whatever was said beyond that was, of course, obiter dicta merely, and even as such had no reference to the limitations of legislative power contained in. state constitutions.

It is scarcely necessary, perhaps, to observe, that in the views which have been expressed, it is not intended to narrow the •field of legislative discretion in regulating and controlling the traffic in intoxicating liquors. We only say, that in all such legislation, the essential right of the citizen to his property must be preserved—a right which includes the power of disposition and sale, to be exercised under such restraints as a just regard, both to the public good and private rights, may suggest.

I am not insensible to the delicacy and importance of the duty we assume in overruling an act of the legislature, believed by so many intelligent and good men to afford the best remedy for great and admitted evils in society; but we cannot forget that the highest function intrusted to us is that of maintaining inflexibly the fundamental law. And believing, as I do, that the Prohibitory Act transcends the constitutional limits of the legislative powrer, it must be adjudged to be void.

The judgment of the supreme court and of the court of sessions must, therefore, be reversed.

Selden, J.

The question which lies at the threshold of this case of Toynbee, and which should be determined in advance of every other, is, whether the act for the prevention of intemperanee, pauperism and crime, considered in reference to its object, the means adopted to secure that object, and, its alleged effect in virtually annihilating a large amount of property, is void, as being without the pale of legislative power. It is claimed, 1. That, irrespective of any positive restrictions, the principles of natural equity and justice set bounds to the power of the legislature, which are transcended by this law. And, 2. That it is in conflict with the express provisions of the constitution.

In examining this subject, speculative opinions in regard to the wisdom of the act, or the beneficial results likely to flow from it, can have nothing whatever to do with a question which depends upon abstract principles of governmental law—principles which cannot be moulded to meet the views or interests of any portion of the people. It is a question not of expediency, but of power.

Every sovereign state possesses within itself absolute and unlimited legislative power. It is true, that as government is instituted for.beneficent purposes, and to protect the welfare of the governed, it has no moral right to enact a law which is plainly repugnant to reason and justice. But this principle belongs to the science of political ethics, and not that of law. There is no arbiter beyond the state itself to determine what legislation is just. Whatever, therefore, is to be declared by the ultimate power of a state, as there can be no appeal, must, in view of the law, be taken to be just and right. The union of the functions of making and deciding upon laws, constitutes, of necessity, absolute legislative power. While, therefore, the right of a sovereign state to pass arbitrary and tyrannical laws may, its legal power cannot, be denied. This is self-evident, and needs no proof. I speak, of course, of a state as a whole, where all its powers are concentrated in the hands of the people at large, or of one or more of its members.

It follows, that 'if a society of people, wishing to form an organized government, should simply create the three essential departments, vesting the whole executive power in one, the legislative in another, and the judicial in a third, as the three departments combined would possess all the powers which belonged to the people in their collective capacity, the legislative department could make any law which the people themselves could have made—arbitrary, oppressive, or otherwise; unless, under such a distribution of the governmental powers, some authority is vested in the judiciary, to pass upon the propriety or justice of the laws.

But it is evident that this is legislative and not judicial power. It is necessarily to be exercised, in the first instance at least, when the law is passed, and obviously constitutes the most essential portion of the duty of the legislature itself. To suppose the same power vested in the judiciary, tends to confound the distinction between the two departments. Besides, when exercised by the latter, it becomes a supervisory and appellate power, and thus virtually subversive of all legislation. It is clear, therefore, in my judgment, that in a perfectly natural and simple distribution of the governmental powers, it is not within the province of the judiciary to pronounce any act of the legislature void. It may, however, acquire this right through an artificial distribution of those powers by means of the organic law.

Let us look, then, at our state constitution: Section 1, Art. 3, declares, that “ The legislative power of this state shall be vested in a senate and assembly.” This means, of course, the whole legislative power. The words are general and unlimited—nothing is reserved. It was decided by this court in the case of Barto agt. Himrod, (4 Seld. 483,) that the people had parted with all their power of legislation, except in the single case provided for in Art. I, § 12.

Why, then, as it has been shown that the people could make any law, just or unjust, is not, the legislature equally absolute I It is because, by other clauses in the constitution hereafter to be noticed, a portion of this absolute power has been transferred to the judiciary. Not, it is true, in direct terms; but the constitution, being the result of legislation by the people themselves before parting with their power, is the paramount law. When, therefore, any law passed by the legislature conflicts with this, the judiciary pronounces between them, as it does' between the acts of two successive legislatures, and the paramount law prevails. It will be seen,, that in this mode a restriction upon the power of the legislature is effected without confounding the distinction between the two departments, as the judiciary continues to exercise only its appropriate judicial functions.

To determine, then, the extent of the law-making power, we have only to look to the provisions of the constitution. It has, and can have, no other limit than such as is there prescribed ; and the doctrine that there exists in the judiciary some vague, loose, and undefined power to annul a law, because in its judgment it is “ contrary to natural equity and justice,” is in conflict with the first principles of government, and can never, I think, be maintained.

I am aware that some eminent judges, when the question was not before them, have expressed a belief in the existence of such a power; but no court has ever, I believe, assumed to declare an explicit enactment of the legislature void on that ground.

Blackstone, in his Commentaries, after referring to the doctrine advanced by some other writers on this subject, that acts of parliament “contrary to reason” are .void, says, “But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary, forms of the constitution that is vested with power to control it; and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.” (1 Black. Com. 91.)

Christian, in his Commentary upon this passage, says, “When the signification of a statute is manifest, mo authority, less than that of parliament, can restrain its operation.” (See note to Black.) These authorities, it is true, have reference to the British constitution, but the following relate to those of our own country:—

Lieber, in his work on Civil Liberty and Self-Government, says, that the state legislatures have “ the right, as a general rule, to do all that seems necessary for the general welfare and is not specially prohibited” He suggests no exceptions. (See ch. 15, § 25.)

Mr. Justice Iredell, in the case of Calder agt. Bull, (3 Dall. 386,) where this question was incidentally considered, uses the following emphatic language: “ If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power ■ chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void.”

Chief Justice Church-, of Connecticut, also, in the case of The City of Bridgeport agt. The Housatonic Railroad Company, (15 Conn. R. 475,) expresses his views thus: “ There may not often be any great, difficulty in determining what are the principles of natural justice, nor what would tend to undermine that which theorists may suppose to be the fundamental principles of the social compact, especially by those who acknowledge the precepts and obligations of revealed religion; yet» these principles are not always of easy and undoubted application to .the infinitely varied forms of human action; and we know of no other municipal power which can more safely make such application than the legislature; and as a court, although we may dissent from its conclusions, yet we disclaim any right to disregard them, for no other reason than that we might consider them unreasonable, impolitic, or unjust.”

I agree with the learned chief justice, that this power of de- ' termining what laws are expedient and just, which must of necessity be lodged somewhere, may be as safely reposed in the legislature, which returns its power so frequently through the elections into the hands of the people, as in the judiciary. The remedy for unjust legislation, provided it does not conflict with the organic law, is at the ballot-box; and I know of no.provision of the constitution, nor fundamental.principle of government, which authorizes the minority, when defeated at the polls upon an issue involving the propriety of a law, to appeal to the judiciary, and invoke its aid to reverse the decision of the majority, and nullify the legislative power.

This brings me to the consideration of the second ground, upon which it is claimed that the law, as a whole, is void, viz.: That it is inconsistent with the letter or spirit of the express provisions of the state constitution. The particular clauses with which it is alleged to conflict, are those which provide, 1. That “ no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” 2. That no person shall “ be deprived of life, liberty, or property, wdthout' due process of law.”

The first of these clauses, which had its origin in Magna Charta, brief as it is, embodies the most essential guaranties against the exercise of arbitrary power, which that instrument contained. Its meaning as there used is plain, when we consider that it was the result of a struggle which had lasted for more than a century between the English people and the Norman kings, who had supplanted the laws and customs of the Anglo-Saxons, and established in their place the prerogatives of royalty. The' English yeomanry, at whose instance this clause was inserted, meant by the terms “ law of the land,” the ancient Saxon or common law. To put any other construction upon it would render the clause utterly unmeaning. At that period in English history the king exercised legislative power; and if by “law of the land” was meant any law which the king might enact, the provision was a nullity.

But the meaning was rendered more clear by the paraphrase of this article of Magna Charta, ivhich was inserted in a subsequent statute, securing privileges to the people, passed in the reign of Edward III, in which the clause “ but by the law of the land or the judgment of his peers” was changed to the words, “without being brought to answer by the process of law.”

This change shows that the object of the provision was, in part at least, to interpose the judicial department of the government as a barrier against aggressions by the other departments. Hence, both courts and commentators in this country have held that these clauses, in either form, secure to every citizen a judicial trial before he can be deprived of life, liberty, or property. (Hoke agt. Henderson, 4 Dev. 1; Jones agt. Perry, 10 Yerger, 59; Taylor agt. Porter, 4 Hill, 140; Embury agt. Conner, 3 Coms. 511; 2 Kent Comm. 13; 3 Story Comm. on the Cons. § 1783.)

Does the statute in question, then, deprive any class of citizens of their property without “ due process of law!”

Property is the right of any person to possess, use, enjoy and dispose of a thing. The term, although frequently applied to thf thing itself, in strictness, means only the rights of the owner in relation to it. (Bouvier’s Law Dic.; 1 Black. Comm. 138; Webster’s Dic., &c.) A man may be deprived of his property in a chattel, therefore, without its being seized, or physically destroyed, or taken from his possession. Whatever subverts his rights in regard to it annihilates his property in it. It follows, that a law which should provide, in regard to any article in which a right of property is recognized, that it should neither be sold or used, nor kept in any place whatsoever within this state, would fall directly within the letter of the constitutional inhibition, as it would, in the most effectual manner possible, deprive the owner of his property, without the interposition of any court, or the use of any process whatever.

It may be said that the constitutional provisions in question cannot, in the nature of things, apply to a case where a law enacted for beneficent purposes operates directly upon its subject, and thus accomplishes per se the end in view; that in such a case it is impossible to interpose any judicial action between the enactment and its execution; and that the clause can only apply to cases where there is to be some manual interference with the rights of person or of property.

But there is no such limitation in the constitution; and the few guarantees it contains should not be curtailed by any narrow or refined process of interpretation. Such a construction would virtually nullify the provision—as the most oppressive and tyrannical ends may be accomplished by simply withdrawing from individual rights the protection of law. All vested rights to franchises would be placed, by this interpretation, so far as the state constitution is concerned, entirely at the mercy of the legislature. To give the clause, therefore, any value, it must be understood -to mean, that no person shall be deprived, by any form of legislation or governmental action, of either life, liberty, or property, except as the consequence of some judicial proceeding,. appropriately and legally conducted. It follows, that a law which, by its own inherent force, extinguishes rights of property, or compels their extinction, without any legal process whatever, comes directly in conflict with the constitution.

Does the act in question do this ?

I shall consider the objections to the first four sections, which embrace the prohibitory features of the act, with the specific penalties annexed to its violation, by themselves, as they have no necessary connection with those made to the subsequent sections. If these four sections virtually deprive the owners of spirituous liquors of their property, without legal process, they are void, if my interpretation of the constitution is sound.

It is not sufficient that they impair the value of'the property, in ever so great a degree, because this destroys no right. It leaves to the owner unimpaired, his right to keep, to use, and to dispose of the article. It does not, therefore, deprive him of any right of property. All regulations of trade, with a view to the public interest, may, more or less, impair the value of property ; but they do not come within the constitutional inhibition, unless they virtually take away and destroy those rights in which property consists; this destruction must be, for all substantial purposes, total. Not that a merely colorable preservation, of some minute and trivial interest, would uphold the act. A substantial right of property must be saved; and the provisions must be such as may fairly be considered as intended to regulate, rather than subvert and destroy the property.

What, then, is the general scope and object of the first four sections of the act I Plainly, to prohibit the sale of intoxicating liquors, for all except mechanical, chemical and medicinal purposes, and to limit their sale for those purposes to a particular class of persons. Is there anything in these objects which, if properly carried out, would transcend the limits of the legislative power 1 I think not. The legislature, in my judgment, possesses the right to prescribe the places where, the persons by whom, and the purposes for which spirituous liquors may be sold, provided that, under color of doing this, it does not virtually deprive the owner of his property in them.

So far as the places where, and the persons by whom, sales may be made, this act is, perhaps, more stringent than the excise laws which it supersedes. The increase of rigor is in the purposes for which such' liquors may now be sold. But the privilege of selling for “ mechanical, chemical and medicinal purposes ” is not, I think, so trivial as to be justly regarded as merely colorable. The consumption for the chemical and mechanical arts must be' considerable, and that for medicinal purposes will be found, I apprehend, to be still greater. Besides, as the law would operate to check the manufacture and importation of liquors, the stock on hand would, if permitted, have been ultimately required for purposes deemed by the law itself legitimate.

If, then, the law had suffered the liquors on hand, when it went into effect, to be gradually absorbed by the then privileged uses, the prohibitory features contained in the first four sections would not, I think, have conflicted writh the constitution. But there is one provision in the first section of the act which, when taken in connection with the fourth section, cannot, I think, be reconciled with any just views of legislative power.

That section declares, in substance, first, that intoxicating, liquors, except as afterwards provided, shall neither be sold, or kept for sale, or with intent to be sold, in any place whatever; nor be given away, or kept with intent to be given away, anywhere but in a private dwelling-house. These provisions^ although they abrogate the right of sale, do not prohibit the liquors from being kept, provided no design is entertained of selling them; nor do they prohibit their being used by the owner. So far the section may not conflict with the constitution. But it proceeds, “ Nor shall it be kept or deposited in any place whatsoeverexcept in such dwelling-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 reaching its place of destination.

This last clause is not qualified by any provision as to the intent with which the liquors are kept. It is an absolute prohibition against their being kept anywhere but in the excepted places, although the owner may have no intention either to use, sell, or give them away; and the fourth section declares a violation of this clause to be a misdemeanor, and imposes a' penalty of $50 for the first offence.

Now what, under this law, is the condition of a person having spirituous liquors on hand on the day when the law takes effect? These liquors, or the rights of the owner in them, are property, and as such entitled to the protection of the constitution. What, then, is the owner to" do? If he does nothing, he is guilty of a misdemeanor, because it is a violation of the act to keep the liquors anywhere out of the excepted places, without reference to the interest of the owner. Unless, therefore, he obtains the right to sell, or deposits the liquor in one of the excepted places, he must destroy it, or be liable to indictment and punishment as a criminal. The act reduces him to this alternative : it does not permit him to dispose of his liquors even to those authorized to sell. In this respect it is inconsistent with itself. It admits the value of such liquors for certain purposes, and yet prohibits their sale for those very purposes.

If it be conceded that the legislature has not the power to pass a law directing a sheriff, or other officer, to destroy those liquors wherever he can find them, without any process whatever, then the constitutionality of the provision under consideration cannot, I think, be maintained; because there can be no material difference between directing an officer to destroy them, and directing the owner himself to do it; nor between enacting, in so many words, that the latter shall destroy them, and placing him in a situation which subjects him to conviction and punishment as a criminal unless he does it. How is it possible to deprive a man more effectually of his property than to enact that he shall be deemed guilty of a misdemeanor, and be liable to a penalty, if he keeps it for any purpose 1 This is precisely what the legislature has, in substance, done—since the only doors of escape left open to the owner are entirely illusory. They are, either to qualify himself under sections two and three to sell, or to deposit his liquor in one of the excepted places.

As to the first, he may be able to obtain the necessary security, or to make oath that he does not use intoxicating liquor as a beverage. The law does not make such use a crime; nor does the constitution withdraw its protection in consequence of it. Such a man, then, although disposed to submit to the law, and not to sell for any authorized purpose, cannot save his property, even for those purposes which the law itself sanctions.

It may be said that he may remove the liquors to one of the excepted places. This might be done in some instances, and in small quantities. Some men own dwelling-houses, and some do not. . Some might have access to mechanical or manufacturing establishments, and some would not. But the legislature has no power to compel the destruction of even the smallest quantity of liquor, without a previous judicial condemnation. The idea of depositing all the liquor on hand when the law took effect in those excepted places is plainly illusory. The suggestion that the owners might save their property by exportation is equally so. Admitting the right of the legislature to compel any class of citizens to remove their property out of the state, we cannot know, judicially, that an article, the sale of which is prohibited, and which is declared a nuisance in our own-state, would be admitted as an article of merchandise into any other.

While, therefore, I do not question the constitutionality of the general objects of the Prohibitory Law, and fully concede the power of the legislature to prohibit the sale of intoxicating, liquors, for all except mechanical, chemical and medicinal pur poses, I cannot admit that it has the right to compel their im-. mediate and unconditional destruction, as is, I think, substantially done by this law. The guarantees of the rights of property, which the constitution affords, as my investigations in this case have satisfied me, are slender at the best, and I am unwilling so to interpret as entirely to nullify them.

There is one other argument, in connection with this branch of the case, which I will notice here. It is said, that the legislature has the conceded power to authorize the destruction of private property in certain cases for the protection of great public interests; as, for instance, the blowing up of buildings during fires, and the destroying of infected articles in times of pestilence ; and that the legislature is necessarily the sole judge of the public exigency, which may call for the exercise of this power.

The answer is, that the legislature does not, in these cases, authorize the destruction of property; it simply regulates that inherent and inalienable right, which exists in every individual, to protect his life and his property from immediate destruction. This is a right which individuals do not surrender when they enter into the social state, and which cannot be taken from them. The acts of the legislature, in such cases, do not confer any right of destruction which would not exist independent of them; but they aim to introduce some method into the exercise of the right. (See the able opinion of Senator Sherman in Russell agt. Mayor of New- York, 2 Denio, 46.)

It has never yet been judicially decided in this state, so far as I am aware, that the officers upon whom statutes of this kind purport to confer power to destroy buildings to prevent the spread of fires, would be justified in exercising the power in a case where it could not be properly exercised independent of the statute; and it may well be doubted whether the legislature can add to the extent or force of the natural right.

Again: the enactment of quarantine laws, by force of which not only is property destroyed, but personal liberty restrained, is the exertion, by the body politic, of the same power of self-preservation, which is possessed by individuals. Their justifination rests upon the immediate and imminent danger to life and health which they are enacted to avert. If we admit the truth and force of all the reasoning upon which the statute before us Is based, it will still be impossible to bring it within the range of this power. As well might an individual argue that because he has a right to protect his life or property from immediate destruction, he has, therefore, a right to resort to any measures he may deem necessary to guard against remote and contingent dangers. It is clear, therefore, that no argument drawn from these and kindred- enactments, can be of any weight in determining the question here.

The conclusion to which I am thus Drought is necessarily subversive of the entire law in its present form. For, although when only part of an act is unconstitutional, and that part is entirely separable from the remaining portion, the court will limit its condemnation to the part which conflicts with the constitution, yet this cannot be done where, as in this case, in a single section, several acts in relation to the same subject matter, and connected in one sentence, are forbidden, and in another section all these acts are indiscriminately declared to be crimes, and one common penalty is annexed to each. The same provision cannot be both valid and void, as would be the ■ case if it should be held that the penalties imposed by section four could be enforced as to part of the acts prohibited in section one, and not as to others.

It may be said, that although the legislature has not the power to annihilate existing rights of property in any article, it may nevertheless make it unlawful to acquire such rights in future; and may therefore enact, that all rights of property in a particular article, thereafter acquired, shall be null, and that the article itself shall be destroyed; and hence, that the present law may be enforced as to all rights not shown to have existed when the law took effect.

But conceding the power of the legislature to make such a law, it cannot support the present act, which operates indiscriminately upon all rights of property in the article in question, without regard to the time when they were acquired.

To hold the law valid and operative as to property acquired after it took effect, and void as to rights previously existing, would tend to the constant recurrence of the question before the courts as to its constitutionality, and to repeated judgments of condemnation of the law. There are serious objections to this on grounds of public policy, which requires that collisions between the different departments of government should be as few and as brief as possible. If the law was so framed that proof on the part of the defendant, that his rights of property involved, in the case had existed before the act took effect, could be, construed into a defence under the act itself, this objection would be removed. But it is clearly otherwise. Such proof would have no tendency to exempt the defendant or his property from the penalties of the law, except by calling upon the court to pronounce it unconstitutional. Thus the courts would be required, over and over again, to declare the same legislative provisions both valid and void, as applicable to different classes of cases. This has been in some instances, but with doubtful propriety, tolerated in purely civil cases, but never, I believe, in respect to penal and criminal legislation.

It is not only liable to the objection already suggested of calling into repeated action the ultimate judicial power of passing upon the validity of the acts of a co-ordinate branch of the government; but it would tend directly to encourage experimental legislation. If the legislature may, in a single provision, encroach ad libitum upon the constitution, without other effect than to call upon the courts to limit its operation to cases within the purview of legislative power, nearly all motive for a careful regard for constitutional rights in legislation would be removed, and an onerous burden imposed upon the courts. The general rule on this subject is, that where part of a law is in conflict with the constitution, and that part is entirely separable from the residue, so that other portions of the law can be enforced without reference to it, there the unconstitutional part only will be condemned. But where the legislative provision is indivisible, and the necessary discrimination has, as in this case, to be made at the trial, so that the rights invaded can only be protected by repeated judgments against the validity of the law, although there may be a class of cases to which it might properly apply, the provision is wholly void. The law, therefore, must be revised, and the proper discrimation made, before it can be enforced.

I shall notice but a single additional point arising upon that portion of the law, which is designed to enforce its penalties.

Section seventeen contains important provisions which are made applicable to every prosecution under the act; and if the law is to be revised, it is undoubtedly desirable that the views of this court upon that section should be known. The question arising upon it is, in my view, of greater importance than any other which the law presents, as it goes to test the value of those clauses of the constitution upon which our rights of personal security rest.

The second branch of the section provides, that upon the trial of every complaint under the act for an unlawful sale of liquor, the defendant shall not be permitted to justify under the second section, (the only way in which it is possible to justify,) unless he shall—1. Admit the sale, which, by the previous clause, is converted into prima facie evidence of guilt; 2. Swear to his innocence, i. e., his belief as to the use which the purchaser intended to make of the liquor; and, 3. State the reasons upon which his belief was founded.

Can this provision be reconciled with that clause in § 6, Art. 1, of the constitution, which provides that “ in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel,” taken in connection with the provision in the same section, that no person shall “ be deprived of life, liberty, or property ” without “ due process of lawl” Of what value is this right “to appear and defend,” if the legislature can clog it with conditions and restrictions which substantially nullify the right ? The constitution says, every man shall have a right “ to defend.” The legislature says, you may defend, provided you first admit yourself prima facie guilty. Can these provisions be reconciled 1

In Greene agt. Briggs, (1 Curtis R. 311,) Curtis, J,, speaking of the provisions of the constitution of Rhode Island, that no person shall “ be deprived of life, liberty, or property, .unless by the judgment of bis peers, or the law of the land,” says, “ The exposition of these words, as they stand in Magna Charta, as well as in the American Constitution, has been, .that they require c due process of law,’ and in this is necessarily implied and included the right to answer and contest the charge, and the consequent right to be discharged from it, unless it is proved.”

He subsequently adds : “ It follows, that a law which should preclude the accused from answering to and contesting the charge, unless he should first give security in the sum of $200, with two sufficient sureties, to pay all fines and costs, and which should condemn him to fine and forfeiture unheard, if he failed to comply with this requisition, would deprive him of his liberty or property, not by the law of the land, but by an arbitrary and unconstitutional exertion of the' legislative power.”

The conditions imposed upon the right of defence by § 17 of our act are far more onerous and embarrassing than that condemned by the learned justice in this passage; and if he is right, it is impossible to sustain the section against this objection.

It is equally clear that it conflicts with another clause of the constitution. Section 6, Art. 1, declares that no person “shall be compelled to be a witness against himself.” Section 17 says to the defendant, you shall not go into your defence unless you will not only swear to your innocence,"but make yourself a witness, and testify to all the circumstances of the case. This, for all substantial purposes, is compelling him to be a witness, against himself. It is doing precisely that against which it was the object of the constitution to protect him, viz., searching his conscience under the constraint of an oath. There is no difference between compelling a man to be sworn, and assuming his guilt if he refuses; because his refusal has precisely the same effect as if he was sworn and testified to his own guilt—it convicts him. Indeed, the provision is virtually compulsory, as there could scarcely be a more effectual way of compelling a maruto be sworn than to say that, unless you consent, you shall be convicted and punished as a criminal. The section, therefore, is, in this aspect, in my judgment, a plain violation of the constitution.

But a point of still greater interest arises upon the first branch of § If, which provides that, “ 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 jade evidence of sale.”

There are two classes of cases upon which this provision operates with great severity. Although the act does not prohibit the keeping of spirituous liquor, or the giving it awmy, in a private dwelling, yet, by the clause, the mere delivery is made prima fade evidence of an unlawful sale, without exception as to place. No one, therefore, can, in his own house, give a glass of wine to a friend without thereby affording prima jade evidence to convict him of misdemeanor. Other portions of the act purport to respect the sanctity of the private domicil of the citizen; but its innermost recesses are penetrated by this provision, and acts of mere kindness or courtesy are converted into proofs of guilt.

But the operation of the section upon another class is equally onerous. I mean the class of licensed venders. Sections 2 and 3 expressly authorize certain persons to sell, who are required to give ample security not to violate any provision of the act; and yet, by force of the clause in question, every sale they make affords prima facie evidence to convict them. The act presumes against the innocence of its own selected agent, and will not permit this presumption to be rebutted, until such agent consents to make himself a witness in the case.

This provision raises the vital question as to the value of that clause in the constitution which secures to every man charged with crime a trial by due process of law.” The most important guarantees of individual right which our constitution affords are concentrated in this single phrase.

As we have already seen, the expression due process of law,” first appeared in a statute of Edward III, as a paraphrase of the words “ by the law of the land,” per legem terra, in Magna Charta; and from that day to this both forms of expression have been held to refer to the common law, as distinguished from statutory enactment.

Sir Matthew Hale says," “ The common law is sometimes called, by way of eminence, lex terra, as in the statute of Magna Charta, (chap. 29,) where certainly the common law is principally intended by those words, aut per legem terra, as appears by the exposition thereof in several subsequent statutes, and particularly in the statute of 28 Edw. Ill, chap. 3, which is but an exposition and explanation of that statute.” (1 Hale’s Hist. Com. Law, 128.)

Lord Coke, also, in his Commentary upon Magna Charta, puts the same construction upon the words. (2 Inst. 45, 50.)

The courts in this country have held the same. Chief Justice Ruffin, speaking of this clause in the constitution of North Carolina, in the case of Hoke agt. Henderson, (4 Dev. 1,) says, that “such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law, as derived from our forefathers^ are not effectually laws of the land for these purposes.”

To the same effect is the language of Judge Bronson, in Taylor agt. Poster, (4 Hill, 140,) where, in speaking of § 1-, Art. Y, of the constitution of 1821, he says, “The meaning of the section, then, seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law.”

.If this interpretation is correct, and it is sustained as well by history as by judicial authority, the clause in question was intended to secure to every citizen the benefit of those rules of the Common Law, by which judicial trials are regulated; and to place them beyond the reach of legislative submission. They are, indeed, virtually incorporated into the constitution itself, and made thereby a part of the paramount law. Trials, therefore, at least such as are criminal, are to be regulated and conducted, in their essential features, not by statutes, but by the common law. This the constitution guarantees. Precisely how far the legislature may go in changing the modes and forms of judicial proceeding, I shall not attempt to define; but I have no hesitation in saying that they cannot subvert the fundamental rule of justice, which holds that every man shall be presumed innocent until he is proved guilty. This rule will be found specifically incorporated into many of our state constitutions, and is one of those rules which, in our constitution, is compressed into the brief but significant phrase, “ due process of law.”

Can section seventeen be reconciled with this rule 1 It provides that upon every prosecution under the act, proof of a sale of liquor shall sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of a sale. It is plain that, at common law, the legal presumption would be directly the reverse of that declared by the act. Where the common law would presume innocence this act presumes guilt. Either the guaranty of a judicial trial according to the course of the common law is a nullity, or the provision is void.

But I am prepared to go further, and to hold that all those fundamental rules of evidence which, in England and in this country, have been generally deemed essential to the due administration of justice, and which have been acted upon and enforced by every court of common law for centuries, are placed by the constitution beyond the reach of legislation. They are but the rules which reason applies to the investigation of truth, and are, of course, in their nature unchangeable. If it does not follow that to determine what they are, as applicable to judicial proceedings, is a judicial and not a legislative power, still they must necessarily be included in the phrase, “ due process of law.” If this be not the true interpretation of the constitution—if the legislature, in addition to declaring what acts and what intentions shall be criminal, can also dictate to courts and juries the evidence, and change the legal presumptions upon which they shall convict or acquit, there is no barrier to legislative despotism; and the separation of the legislative and judicial departments of the government, the guaranty of trial by jury, and of a trial according to the course of the common law, have all failed to afford any substantial security to individual rights.

I am unable, therefore, to resist the conviction that in both branches of § 17 the legislature has transcended the just limits of its power, and trenched upon the constitutional province of the judiciary.

The judgment of the supreme court should be affirmed.

Denio, Ch. J., A. S. Johnson mi Hubbard, J. J., delivered opinions deciding this law to be unconstitutional.

Mitchell, Wright and T. A. Johnson, J. J., delivered dissenting opinions.

Note.—In consequence of the very large space which all the opinions of the court would occupy, it will scarcely he- expected that they will appear in this work. Besides, they have been, or will be very generally published in other forms. The first two prevailing opinions which the reporter could get, were immediately prepared, and are here published.  