Plymouth Weekly Banner, Volume 4, Number 35, Plymouth, Marshall County, 15 November 1855 — Page 2

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PLYJIOtJTII, IND. Tharsday 3Iornln Nov. 15, 1855. VT Advertisements to insure inserion, must be handed in by Tuesday preceding the day of publication V Knowing in anxiety of our readers to loirn the fate of the Indiana Liquor Law, we lay everything else aside to make room for the opinion of the Supreme Court, on the subject. The 'Marhall Coanty Vsmocrai" will make its first appearance to-day. PopfL.ir:os of thb Territories. Judging from the late returns, the Phils,, dslphia 'North American estimites the population of Minnesota at 55,000; New Mexico, 82, 374; Oregon, between 60000 end 70.000. Some of the Kansas papers set down the population of that Territory at 25.000, but this is probably too high. The census of Nebraska, just completed, shows the population to fee 4,36-1. The Rcssias Possessio is America The Domn Ztitzng. of Berlin, re-as erts that the Russian government is en deavorin to affect a site to the United States of America of its possessions in the norlh of that continent for the sum of 40,000.000 of silver rubles. Should the bargain be brought to a satisfactory conclusion, various indulgences are tobe extended to the commerce of the United States on the part of Russia. The Washington correspondent of the New York Journal of Commerce writes that the free soil members of the House will probablj, it is said, open the ballon their side, bv excluding II iK.;V.-. , . nems W nose EeatS may be Contested, Thus they will endeavor to excluda th tvro Laiilornia inemher nn f,r, II ia members, one frr.m n w m a linuis, one from Maino and one from Io wa. Habeas Corpus before Judg-e Perkins of the Supreme Court. HERMAN v3. THE STATE. rfcKlST mslcupm a charge of having violated the houor art of ijS.v; ir . . - tue jtucr:. Krnm r OI7US' pursuant to which he it now brought before us at Chambers with the cause of his detcntiou in custodv. tWnT1 D,OV? for hh charge on the ground that a.dlwtuor act u unconstitutional and foid. I he ease is submitted to us upon the arguments heretofore filed in the Supreme court in thTcic of Bebee. Wc regret that this question has been thus preeented to us. We had hoped that these applications would have been coufined to the inferior courts till the Supreme Com t had decided upon the validity of the law in question. But the legislature, acting, as we think, within the constitution, has couferred upon the citizen the right of suing out the writ of habeas corpus from the judges severally of the Supreme Court; the right has been exercised in this case, and it is not far Uü, upau liptit pretexts, to shrink from the discharge of the duty, thus, as we cannot, indeed, but believe injudiciously imposed upon us. Counsel on both cides concede iu argument that the record presents the question of the validity of at least, what is alleged to le the prohibitory portion of S3 id liquor act, and that question will, therefore, w iilwut inquiry upon the point, be considered"We approach it with all the caution and ?oITcitude its nature is calculated to inspire and that intension of. careful investigation its importance demands, feeling tliat the consequences of the principles wc are about t assert will not be confined in their operation to this case alone. Preliminary to the discussion of the main questions involved, however, the course of argument of counsel requires that we should sa)"a word by way of fairly setting forth the duty this court has to perform in the premises, viz: this simply declaring the constitutionality or unconstitutionality of the law, with an assignment of the reasons upon which the declaration is based. It will not be for us to enquire whether it be a good or bad law, in the abstract, unless the fact, as it might turn out to be, should become of some consequence in determining a doubtful point on the main question. It not unfrequently becomes the duty of courts to enforce injudicious acts of the legislature because they are constitutional, and to etrike down suc h as, at fir?t view, appears to be judicious, because they are in conflict with the constitution. "With these remarks, we proceed to the examination of the feature of the liquor act of 1K5 now more especially presented to the court. We shall not spend time upon the enquiry whether, on the day it Cime into force, there were existing unsold manufactured products in the hands of the distillers and brewers upon which it operated, rendering it valules, or whether such products had all leen disposed of between the passage and taking effect of the law. We shall direct our investigation to tl character of its operation upon the future manufacture, sale und consumption of intoxicating liquors. And, . It. Is it prohibitory? T- The first section enacts "that no person shall "manufacture, keep for sale, or sell'' any "ale, porter, malt beer, cider," wine, &c. The second section permits the manufacture and sale of cider and wine under certain restrictions, by any and all of the citizens of the State. Other sections permit the manufacture of whusky, ale, 4c, by persons licensed for the purpose, so far as may be necessary to supply whatever demand certain persons, called county agents, may make upon them- These agents are authorized to sell for medicinal, mechanical and sacramental uses, and no other, and may procure their liquors of licensed manufacturers, but are not required to do so, and, as matter of fact, do not, but obtain them, in most cases, from abroad. They constitute no part of the people engaged in business on their own account, but are appointed under the law by the County Commissioners; supplied with funds from the county treasury; paid a compensation for their services by the coanty; sell at prices fixed for them, and make the proU and losses of the business for the public treasury and not for themselves. We say they are fiirnished with public funds. They are so in all cases; for when they, in the first instance, invest their nvn.itUhr war of loan to the county at a fixed rate of interest, and the amount is refunded by the county with interest These selling agentä, then, are, and for convenience, may be denominated government agents; for it is all one in principle whether the government creates and furnishes them with funds through the medium of the counties, or appropriate them directly by statue and supplies them with funds from the State Treasury. To express, then, the substance of the main provisions of the law, they mav be paraphrased thus: . Beit enacted; 1st. That the trade and business of manufacturing whiskey, ale, porter, and beer, now and hereafter carried on in this State, shall ce3e; except that any person specially licensed to manufacture for medicine, 4c, for the government, may do so, and eell to that extent. If the government should conclude to buy o such person, but not otherwise. : - . . --, . 2. That no person In this State ahaU sell any whisky, beer, ale or porter, unless the sale be to an agent of the covernment or by anch agent for medicine kc ' X That no person ia this State shall drink any whisk vf Wer, ale or porter, a a a be venge, and in no iz nce eicrpt as a m ediciaci

IP thus appears that the law absolutely forbids the people of the State to maiiafacture and sell whlskv, ale, porter, and beer for use aa a beverage ; or, at all except for the government, to be sold by it for medicine, ic.; and it prohibits absolutely the use of those articles by the people as a beverage. To the exception as to the admission of foreign liquors under the constitution and laws of the United States, will not be noticed, for the reason that they are admitted simply because they cannot be prohibited, and not in accordance with the spirit and policy of the State statute, ami which foreign liquors may or may or not be obtained here according to the contingent action of other powers: and for the further reason, that their admission, if claimed to be a part of the object and policy of the State liquor law, in order to supply the people with liquor as a beverage, renders the "law doubly objectionable, for, while, accordingto euch a view, the law designs to permit the use of liquors as a beverage, it prohibits the people from manufacturing for their own use. It is as if the law were that the people might eat bread but should not raise the grain and grind it in flour wherewith to make it It would be an act to prohibit the people from themselves producing; and to compel them to purchase from abroad what they might need to eat and drink. It would involve "the principle of an act to annihilate the State by starving the people constituting it to death; and such legislation would hardly comport, we thiuk, with a constitution established to promote the welfare and prosperity of the people. We assume it as established, then, that the liquor act in question is absolutely prohibitory of the manufecturc, sale and use as a beverages "by the people of this State, of whiskey, ale, porter and beer. The opinion lias !een advanced that the manufacture for sale out of this State is not prohibited, but it has not the substance of a shadow; and the morality of that law which prohibits the distribution of pauperism and crime, disease and death, at home, at home but permits them to be scattered amongst our neighbors, is not to be envied. And we may as well remark here as anywhere, that if the manufacture and pale of these article are proper to be carried on in the State for any purpose, it is not competent for the government tike to take business from the people and monopolize it. The jrovernnient cannot

turn ami become the o!e dealer in medicines in the iStjff - f AJwhJ1 .Bc?usefJe bu3 was, at is properly at all time-, a private nursirit of tho noople, as much fco as the manufacture and sale of brooms, tobacco, cloths, and the dealing in tea, cof tee and rice, and the raising of potatoes! and the government was orcranized to orotect the neonle in t such pursuits from the depredation of powerful and lawless inaiviuuais, tne oarons oi tne middle ages, whom they were too weak to resist single-handed by force ; and for the government to seize upon those pursuits is subversive of the very object for which it was created. "A government is guilty of an invasion upon the facilities of industry possessed bv individuals, when it appropriates to itself a particular branch ot industry, the business of exchange and brokerage for example; or hen it teils the exclu sivc privilege of conducting it. Sav's political i economv, note to n. l J4 There are undertakings of a public character such i as the making of public highways, prowdiug a uni(form currency, ic.thata single individual has not ! Pwr to accomplish, ami which government must, -J..:J ri.. ..:.... :.:, These, certainly as the general rule, and we are not now prepared to name an exception, the govern ment cannot engage in. Inis is all we shall here say on this point. Time and space forbid that we should elaborate all that arise in the case. The question now presents itself, Secondly. Could the legislature of this State enact the prohibitory liquor law under consideration Few, if any, judicial decisions will be found to aid us in investigating this question, as no such law, in a country possessed of a judiciary and a constitution limiting the legislative powershas till of late, been enacted. Some twelve hundred years ago, Mahomet marie such a law a part of his religious creed in opposition to the Jewish and Christian systems, which recommended the moderate, hut forbid the excessive use of intoxicating liquors. This Law of Mahomet, Koran, pp. 25 and 03 was perhap"the first prohibitory act, but it does not appear to have heen adopted by civilized nations till its late revival in some shape or other, in one or more of our eister States. Hence, it has not often, if at all, as to this point passed under judicial consideration. A number of European writers on natural, publie, and civil law, are cited by counsel on behal of the State, to show the extent of legislative power; but thsse writers, respectable, able, and instructive upon some subjects as they are admitted to be, arc not authority hero oir UÜ doioc TLy r .Laigwow, indeed, utterly blind guides to follow in searching for the land-marks of legislative power, in our free and limited government; for they had in view, when writing, governments as existing when and where they wrote; under which they lived and been educated, and which had no written constitutions limiting their powers governments the theory of which was that'they were paternal in character that all power was in them by divine right, and they, hence, absolute; that the people of a country had no rights except what the government ofthat country graciously saw fit to confer upon them, and that it was its dutydike as a father towards his children, to command whatever it deemed expedient for the public good, without first, in any manner, consulting that public, or recognizing in its members any individual rightsIndeed, the discovery of the great doctrine of rights in. the people as against the government had not been made when the writers alove referred to lived. Such governments as those described, could adopt the maxim quoted by counsel, that the safety of the people is Um; supreme law, and act upon it; and being severally the sole judges of what their safety, in the countries governed, respectively required, could prescribe what the people should eat and drink, what political, moral and religious creeds they should believe, ami punish heresv by burning at the stake, all for the public good, liven in Great Britain, esteemed to have the most lilieral constitution on the East?rn continent, Magna Charta is not of sufficient potency to restrain the action of Parliament, as the judiciary do not, as a settled rule, bring laws to the test of its provisions. Laws are there overthrown occasionally by judicial construction. But here we have written constitutions which are the supreme law, which our legislatures are sworn to support, within whose restrictions they must limit their action for the public welfare, and whose barriers they cannot overleap, under any pretext of supposed safety of the people ; for along with our written constitutions we have a judiciary whose duty it is, as the only means of securing to the people safety from legislative aggression, to annul all legislative action without the pale of those instruments. This duty of the judicial department, m this country, waa demonstrated by Chief Justice Marshall in Marberry vs. Madibon", 1 Cranch 139, and has since been reorganized as settled American law. The maxims above quoted, therefore, as applied to legislative power, is here without meaning. Nor doe3 it prove the power of the State legislature to enact the law in question, to 3how that the Supreme Court of the United States has decided that it cannot declare such a State law inoperative, for that Court can only declare void such State laws as conflict with the restrictions imposed npon State power by the Constitution of United States; and if, in that constitution the States are not restrained from passing laws in violation of the natuftd rights of the citizen, the Supremo Court of the United States cannot act upon such laws when passed, because they do not fall within its jurisdiction, lience, that court has decided that a State may . deprive its citizens of property without making comgmsation, and the right of trial by jury, rown vs. The Mayor, fcc. 7-Peters 243, may pass laws depriving them of vested rights in property, and of the benefit of judgments tney may nave oDtainea in courts, and the like; Salterlee v. Mathewson, 2 Peters 380, and the license cases in 6th Howard 604; and no redress be obtainable in the United States Courts because there are no provisions in the United States Constitution prohibiting tho passage of such State laws,' But the Supreme Court of this State has . decided that, under our State Constitution, the legislature cannot enact a law for the taking of private property without making compensation; cannot deprive the citizen of the right of, trial by jury, an? cannot set aside the

judgment of a court, ic. Younjr vs lh!

State Bank, 4th In J. Rep. 301. McCor mic v Lafayette, 1st Ind. 4& The Stato v Mead, 4 Iilackf 309. It does not, therefore, follow that be cause the constitution of the United States ; does not prohibit Stete legislation infring- J ing the natural rights of the citizen, such : legislation is valid. The Constitution of tho United States may not, but that of the State may, inhibit it. And so, indeed, according to many eminent judges, may principle of natural jus tice, independent of all constitutional re-1 straint. This doctrine has been asserted i here. In Andrews v. Russell, 7 Blackf, ) 474, Judge Dewy says: "We have said' that the onlv provisions in the Federal or 1 State Constitutions restrictive of the power of the legislature, tc." are, kc. There are j certain absolute rights, and the right of' property is among them, which in all free governments must of necessity be protected from legislative interference, irrespective of constitutional checks and guards. Should we find however, in the course of this investigation that the constitution of our free State does, in fact, sufficiently protect natural rights from legislative interference, as it surely does or it is grievously defect ive, it will not become necessary for us to enquire "whether in any event, it might be proper to fall back upon the doctrine above so unhesitatingly asserted. Does our constitution, then, prohibit the passage of such an act as that now bein considered? A dictum is quoted by coui? sei from the opinion in Reply v. The State, 4;nü. Kep. 2Ü4, that "it is competent for tbe legislature to declare any practise deemed injurious to the public a nuisance, and to punish it accordingly;" and hence, it is reasoned, any property; but dicta, as counsel well know, are not necessarily law; are, in fact, jjenerly unconsidered first impressions which, all legal experience proves, are thrown out by all judges in giving opinions as habitually and thoughtlessly as violation of the constitution are perpetrated by the legislature in enacting laws, and infinitely more excusably. Scarcely and elaborate opion is written not containg them. This the profession well understood, and hence are not misled by them of erroneous. And it must bo manifest to every one, on a moment's consideration, that the doctrine just quoted cannot bo taken for law, and could not have been so intended, in an unlimited sense, by the learned judge who uttered it. The legislature cannot declare any practice it may deem injurious to the public a nuisance and punish it accordingly. It cannot so declare the reading of the Bible, though, perhaps the government of O I'l l-. . . i . epain once uiu. it connot so aeemre the practice of worshipping God according to the dictates of one's own conscience, though perhaps Massachusetts, in the days of Roger Williams, did do it. It cannot so declare the practice of teaching schools, though perhaps Virginia might have done so in 1674, when Governor Berkly wrote from that colony: "I thank God there are no free schools nor printing; and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into tho world, and printing has divulged them, and libels against the best Government. God keep us from both." t cannot so declare the holding of political meetings and making speeches, the bearing of arms, publishing of newspapers, fce.. fcc, however, injurious to the public-tl legislature micrhi deem uch practice to be; and why? Because the constitution forbids such declaration and punishment, and permits the people to use these practices. So with property; the legislature cannot interfere with it further, at all events, than the constitution permits. In short, the legislature cannot forbid and punish the doing of that which the constitution permits; and cannot take from the citizen that which the constitution says he ßhall have and enjoy. If it can, then we think all will admit that the constitution is worthless, the liberties of the people a dream, and our government as despotic as any on earth. And we may here remark that the legislature can add nothing to its power over things by declaring them nuisances." A public nuisance is that which is noxious.offensive to all the people who may come in contact with it: and the offensive quality is in the thing itselt, or the particular man ner of its use, and is neither increased nor diminished by a legislative declaration. What the legislature has a right by the constitution to prohibit and punish, even to the forfeiture of property, it may thus deal with without first declaring tho matter a nuisance; and whatevet it has not a right by tho constitution to prohibit and punish, it can not thus deal with even though it first fix upon it mat oaious name, io illustrate: tne legislature has power, perhaps unlimited, over the public highways. It provides for opening, repairing, and vacating them. They are not the private property of the citizen. The legislature, therefore, may declare what shall be permitted, and what removed, whether they be, in fact, nuisances or not. So with Congress, in relation to tho national highways for commerce. These are public for purposes of naviga tion, and aro perhaps, completely under the legislative poycr. So the legislature, when the practice was to license houses for the exclusive retail of spirituous liquors, that is, the sale of them in particular quantities at particular placej, could impose conditions upon which the lisenco should be granted, and could mke the violation of the conditions cause of forfeiture wheth er it was such as rendered tho retailing 1 ! i 11 .1 . nouse a nuisance or not, anu wnetner it was so denominated or not. . But the legislature cannot declare the path from my house to my barn nor any ODStrucuon i may place in it a nuisance, and order it discontinued; nor can it de clare my store room and stock of goods a nuisance,. proniDii my seuing mem, and order them destroyed, because such acts would invade private property whicn the constitution protects. " Still tho fact may be that the path and the store room are nuisances which I have no right to maintain; for while I have the right to use my own property, still I must not use it to injure others. So, all trades practices, and property, may, by the manner, time, or place of use, become nuisances in fact, in quality, and subject, consequently, to forfeiture and abatement: for example, ßlaughtcr-houses in cities, or some descriptions of retailing houses; and this the legislature may have enquired into, and, if the fact of nuisance be found, to have the forfeiture and abate ment adjudged and executed. And it ii

the province of the judiciary to conduct enquiry, and declare tho fact, or deny it, as the truth may turn out to be. Many things, by such proceedings, have already become established nuisances at common law. By this mode, when a party loses his trade or property, ho does so because of his own fault, and this according to the judgment of his peers, and the provision of the general law of the laud, and not by the tyranny of the legislature whose enactment may not be the law of tho land. See numerous cases collected on this point in the 1st Chapter of Black well on Tax Titles, In accordance with this doctrine we find that the criminal code of this State has ever contained the general provision that auy person who erected or maintained a nuisance should be fined, &c, and that the nuisance might be abated; 2 R, S. p. 428, 429, See's 8 and 9 a proviaion that submits it to the country, to wit. a jury under the charge of tho Court, to decide the fate of the nuisance. This provision the courts have been daily enforcing agaist various noxious subjects; and if the breweries and casks of liquor are a nuisance, why have they not been prosecuted and

abated also? What was the need of this special law upon the subject? We have assumed thus far upon this branch of the case, that the constitution protects private properly and pursuits, and the use of private property by way of beverage as well as medicine. It may be necessary, at this day, to demonstrate the fact. The first section of the first article dedares, that all men are endowed by their Creator with certain unalienable rights; that among thee are life, liberty and the pursuit of happiness. Under our constitution, then, we all have eonie natural rights that have not been surrendered, and which government cannot deprive us of. unless we shall first forfeit them by our crimes, and to secure to us tho enjoyment of these rights is the great end and aim of the constitution itself. It thus appears that lights existed an terior to the constitution that we did not derive them from it, but established it to secure to us the enjoyment of them; and it here becomes important to ascertain with some degree of precision what these rights, natural lights, are. Chancellor Ksnt, following Blackstone, says: vol. 2, p- 1. Tho absolute (or natural) rights of individuals may be resolved into the right of personal security, ihe right of persunal liberty, and the right to acquire and enjoy property; not someproperty or one kind of property, bul, at least, whatsoever the society, organizing government, recognizes as property. How much does this right embrace, how far does it extend? It undoubtedly extends to pursuing the trades of manu facluriug. buying and selling, and to the practice of using. Thrse acts are but means of acquiring and enjoying, and are absolutely incidental to them. What, we may ask. is the right of propeity worth, strip t of the right of producing and using it? 'The right of property is equally invaded by obstructing the free etnploytneut of the means of production, as by violently depriving tho proprietor of the product of his land says Poiit. Economy, 133. Iu Arrow Smith v. Buriinger, 4 McLean ou p. 497, it is said: 'A freeman may buy nd svint his pleasure. This Ttgnt I? tfii Stou society imt from nature, lie never gave it up. It would be amjing to see a man hunting through our law books for authority to make a baigain.' To tho same effect Lord Coke, 2 Inst. p. 47, Rutherford's Institutes, p. 20. This great natural right of using our liberty in pursuing trade and business fur the acquisition of property, and of pursuing our happiness in using it, though not secure in Europe from the invasions of omnipotent parliaments, or executives, is secured to us by onr constitution. For, in addition to the first section which we have quoted, and aside from the fact that the very purpose of establishing the constitution was such security, by Section 1 1 Art. 1, it is declared that we shall be secure in our 'persons, houses, papers and e fleets from uriresscmble search and seizure. By section 31 we have "the right to devote our labor to our own advantage and to keep our property or its value for own ue, so they cannot be taken from us without being paid for. And by Section 12 it is declared lht 'every man, for injury done to him in his person, property or reputation, shall have remedy by due course of law.' These sections fairly construed, will protect the citizen in the use of his industrial faculties, and in the enjoyment of his acquisitions. This doctrine is not new in this court. In Doe v. Douglas, 8 B.'ack, 10, in speaking of the limitations m our constitution upon the legislative power, it is said, they restrain the legislature from passing a law impairing the obligation of a contract, from the performance of a judicial act, and from any flagrant violation of the right of private property. This latter restriction w think, clearly contained in the 1st an? 24th sections of the 1st article of our constitution of 1816, We lay down this proposition, then, as applicable to tha present case: thai the right of libirty and pursuing happiness secured by the constitution, embraces the right of each compot mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they mar be within his reach, and that the legislature canaot take away by di. rect enactment. If the constitution does not secure this right to the people, it secures nothing of value. If the people are subject to e viatrolled by the legislature in the tiotter of their beverages, so they are to (ieir articles of dress, and in their aleepiig and waking. And if the people ara iicompetent to select their own beverages.they are also incompetent to determine aiythiogin relation to their living, and should at once be placed in a vtate of pupilage to a set of govern ment sumptuary officers; eulogies upon the dignity of Juman nature should cease, and the doctrce of th competency of the people foj self government be dtdared a thelodtal flourish. If the government can pohibit any practice it pleases, it can pr hibit th drinking of cold water. ' Can i do that? If not, why not? If we tre rigri in this, that tht constitution restrains jhe legislature from passing a law regulatilg -the diet of the people, a sumptuary Iivi fox thai under consider.

tion is such, no matter whether its object be moral or economy, or both; then the legislature cannot prohibit the manufacture and sale for use as a beverage of ale, porter,, beer, See. and cannot declare those manufactured, kept for sale and sold for that purpose a nuisance, if such is the use to which those articles are put by the people. It all resolves itself into this, as in the case of printing, worshipping God, &c. If this constitution does protect the people in their right, the legislature may prohibit; if it does, the legislature cannot. We think the constitution furnishes the protection. If it does not in this particular, it does, as we have said, to nothing of importance, and tea, coffee, tobacco, corn, bread, ham and eggs may next be placed under the ban. The very extent to which a concession of the power in this case would carry its exercise show it cannot exist. We are confirmed in this view when we consider that at the adoption of our present constitution, there were in the State fifty breweries and distilleries, in which a half a million of dollars was invested, five hundred men employed; which furnished a market annually for two million bushels of grain, and turned out manufactured products to the value of a million of dollars, which were consumed i by our people to a great extent 88 a beverage. With theso facts existing, the question of incorporating into the consti-, tution the prohibitory principle was repeatedly brought before the constitutional convention, and uniformly rejected. Debates in the convention, vol. 2, p. p. 1431 and others. We are further strengthened in this opinion when we notice, as we will as matter of general knowledge, the universality of the use of these articles as a beverage. It ßhows the judgm;nt of mankind as to their value. This use may be traced in several parts of the ancient world. Piiny, the naturalist, states that in his time it was in general use amongst all the several nations who inhabited the western part of Europe; and acccording to him, it was not confined to those northern countries whose climate did not permit the successful cultivation of the grape. He mentions that the inhabitants of Egypt and Spain used a kind of ale; and says that, though it was differently named in different countries; it was universally the same liquor. See P. Nat. Hist., lib. 14. c 22. Herodatus. who wrote five hundred years before Pii

ny, tells us that the Egyptians used a liquor made of barley. (2. 77 ) Dion Cossius allu les to a similar beverage among the people inhabiting the shores of the Adriatic. Lib. 49, De Pannouis. Tacitus ßtates that the ancient Germans, for their drink, used a liquor from barley or other grain, and fermented it so as to ! make it resemble wine. Tacitus de mon J Gem., c 23. Ale was also tho favorite t liquor of ihe Anglo Saxons and Danes. ' If the accounts given by Isodorus and ! Orosinos of the method of making ale among the ancient Britons be correet, it is evident that it did not essentially differ from our modern brewing. They say that the grain ia steeped in water and made to germinate; it is then dried and ground; after which it is infused in a certain quantity of water, which is aflerterward fermented.' In Biblical historv'we are told that the 'Tine, a plant which bears clusters of grapes, out of which win is pressed, so abounds in Palestine that almost every family had a vineyard.' Solomon, said to be the wisest man, had extensive vineyards which he leased to tenants. Song S 12; and Daniel in his lOlih pcalm. in speaking of the greatness, power of God, says, verse 14 and 15, 'He cnuaeth grass to grow for the cattle, and herb for the service of man. and wine that maketh glad the heart of man, and oil to make his face shine and bread to strengthen man's heart.' It thus appear, if the inspired writer is entitled to credit, that man was made to laugh as well as weep, and that these stimulating beverages were created by the Almighty expressly to promote his social hilarity and enjoyment. And for this purpose hath the world ever used them, they have ever given, in the language of another passage of scripture, strong drink to him that was weary and wine to those of heavy heart. The first miacle done by our Savior, that at Cana of Gallilee, the place where he dwelt in his youth, and where he met his followers after his resuirection, was to supply this article to increase the festivities of a joyous occasion; that he used it himself is evident, from the fact that he was called by hi enemies a wine bibber, and he paid it the distinguished honor of being the eternal memorial of his death and man's redemption. From De Bo iv's "compendium of the census of 1850. p. 182, we learn that at that date there were in the United States 1217 distilleries and breweries, with a capital of 8.507,574. consuming some 18,000,000 bushels of grain and apples 1294 tons ol hops, and 61,675 hogsheads of molasses, and producing soma 83,000OdOgallousof liquor. By the National Encyclopedia, vol. 12, p. 924, we are informed that for the year ending January 5, 1850, there were'imported into Great Britain and Ireland 7, 970,067 gallons of wine, 6,940,780 of brandy, and 5,123,128 of rum; and that there were manufactured in that kingdom, 25,000,000 gallons, In the 6th vol. of the same work, p. 328, it is said: 'The vine is one of the most important objects of cultivation in France. Wine is the common beverage of the people of France, and yet Professor Silliman, of Yale College, on the 17th of April. 1851, then atChalous, writes, vol. 1, p. 185, of his visit to Europe: "In traveling more than 400 miles through the rural districts of France, we have seen only a quiet, industrious population, peaceable in their habits, and, as far as we had intercourse with them, corteous and kind in their manners. We have seen no rudeness, no broil or tumult have observed no one who wag not decently clad, or who appeared to be ill fed. We are told, . however, that the French peasantry live upon very small supplies of food, and in their houses are satisfied with very humble accoramodations. Except in Paris, wa havt seen no instance of annerent gniTrinr. and Ot (ft - . . Q, . even there; nor have seen a singl io-'

dividual intoxicated or without shoes and

stockings!" We havjs thus shown, from what we will take notice of historically, that the use of liquors, as a beverage, and orticle of trade and commerce, is so universal that they cannot be pronounced a nuis a nce. The world does not so regard them, and will not till the Bible is discarded and sn overwhelming change in public sentiment, if not in man's nature, wrought. And who, as we have asked before, is to force the people to discontinue the use of beverages? Counsel say the maxim that you shall so use your own ns not to injure another Justifies such a law by tho legislature, but the maxim is misapplied; for it contemplates the free u.e. by the owner, of his property, but with such care as not to trespass upon his neighbor; while this prohibitory law forbids the owner to use his own in any manner, as a beverage. It is based on the principle that a man shall not use at all for enjoyment what his neighbor may abuse, a doctrine that would, if enforced by law in general practice, annihilate society, make eunochs of all men or drive them into the cells of the Monks, and bring the human race to nn end, or continue it under the directiou of licensed county agents. Such, however, is not the principle upon which the Almighty governs the world. He made man a fre ogent, nnd to give him opportunity to exercise his will, to bo virtuous of vicious as he should choose, he placed evil as wo!I as good before him, he put the apple into the garden of Eden, and left upon man the responsibility of his choice, made it 1 . a a moral question, and lelt it so. He en acted as to that, a moral, not a nhvciVnl I

prohibition. He could have easily enacl- j should, therefore, ba faithfully maintain, ed a physical prohibitory law by dedar- j ed. They are the main safe cuaids to ',!. ing the fatal apple a nuisance and remov- j persons and property of the Sitte. ing it. He did not. His purpose was! It is easy to see tint when the pro;,' otherwise, and he has since declared that are srnnrtiug under losses from deprctiit.the tares and wheat shall grow together j ed bank paper, a feeling might b? arouvi

prohibitory law. be robbed of his free ! agency. Se Milton's Arcopasitica or j speech for Liberty of unlicenced printing, j vm iui. y. iuu. But. notwithstanding the legislature cannot prohibit, it can, by enactments j within constitutional limit's, so regulate J the use of intoxicating beverages, as to i prevent most of the abuses to which the use may he subjnet. We do not siy that it can all; for under our system of government, formed in a confidence in man's capacity to direct his ovn conduct, des i?rQd to allow to earh imllri.t.nl th O -- ................ largest liberty consis'ent with the welfare

of tha whole, and to subject the private ! ' f affairs of the citizen to the least possible j Maryland ClrrliuD. government interference, some excesses' Baltimohe, .S'r. will occur, and must bo tolerated, subject j The vole in t;is city not complete, bonly to such punishment as may be in- sufficient is known to render ftlmoit crr flicted. This itself will be preventive in ! tain the election of t! e whole Amern' its influence. The happiness enjoyed in ticket by about T00 mnjority. In :he Zi the exercise of general reasonably rcgula- Congressional distiict. Harris, 'American' ted liberty by all overbalances the evil of (has a large gain in Baltimore county, ar.2

www-.iwuo. liMiMuum citrsj. --yjiart must not be made to "reign" here as once at Warsaw," by the annihilation of al freedom of action, crushing out, indeed, the snirit itself of librtv. With c ;n the language of the then illustrious Bjrke, ! nu-iu ucicimiug lue revolting American) Colonies, something m! b rJ-t J t tne spirit oi uoerty. What regulations of the liquor business wouia oe constitutional, it is not for us .... - I u iuuilhic in auvance; dui lliose wNich .1 1 I - j. . I tue irgu.ature may irom tune to time! w m- " --' prescribe can be brought by the citizen to j tne constitutional test before the judiciary, and it will devolve upon that department to decide upon their consistency with the orginic law; in fact, the question of power, of usurpation, between the people and the people's represents' tives; and in doing this, so far as it maydevolve upon us, we shall cheerfully throw every donbt in favor of tho latter, and of stringent Vgulations. Such is the constitution oi our government. Maize v. The State, 4 Ind., 342 Thomas v. The Board of Commissioners of Clay County, 5 Ind., 557, Greencastle Township v.. Black. 5 Ind., 557. Larmer v. The Trustees of Albion, 5 Hill, 121. Dunham v. The Truslees of Roches'.er ft Covven, 4G2. Colter v. Doty, 5 Ohio Rep.. 393. It is like the case of laws for the collection of depts. The constitution prohibits the passage of an act impairing the obligation of a contract; yet the legislature may regulate the remedy upon contracts, but must regulate within suh li mits as not substantially to impair the' rpm.il a , V. a 1 J i 1- i . . ! uj, ua ma "uum inuirectiy impair the obligation of the contrat itself. Gantly's Lessee v. Ewicg, 3 How., U. S. Rep.. 707. Regulations within constitutional li mits, we have no doubt, if efficiently en ... r.,,.j -n ,. . ' . " L San Vi,'. TJ lit' "J.'t". nearly all that can reasonab y be desired. Tf,l -.vi.. -ii Zi i ihe .reislature. we will add. mnr nn. The legislature, we will add. mav nn doubtedly require the forfeiture of such particular portions of liquor as shall be kept for use in violation of proper regulations, as in the case of gun powder stored in a populous city, and this forfeiture will be adjudged by the Judiciary; see Cotter v. Doty Supra; bul neither all the gun powder nor liquor in the State, accompanied by the prohibition of the further manufacture and use of the article, can be forfeited on occount of the improper use of a given quantity, because the entirety of neither of the articles is a nuisance." It is not pretended to be so as to gun powder, and we think we , . . nave shown it is not so as to liquor. So, it is doubtless competent for the legislature to establish proper police regulations to prevent Ihe introducing of foreign paupers, &c, for there ig a palpa. ble difference between excluding a foreign, and expelling a xitizsn. pauper. The constitutional convention thought it might have power to prohibit the ingress of foreign, while it might not to compel the egress of resident, negroes. So, by such regulations, may the introduction of nuisances be prevented, for there is a wide difference between assuming to declare that given thing is a uuisance, and the prohibiting of the introduction of what is conceded, or shall turn out to be, a nuisance. And, in fact, the restrictions in tha .uüiiiuuuu uyuu mo legislative power may operate for the benefit of those liv. ing under, and in some sense t party to. i its provision, and not for that. tr.ngconstitution npon the legislative power

. It will not be denied tlat but tor

tile ronstitulion and laws of the Uuit States which impose the restriction, the State, as an independent sovereignty might exclude from her borders all for! eign liquors, whether nuisances or not. uttless, indeed, the coctiine upon whith Great Britain w&s defended in forcing trade with China at the cinon's mouth ba correct, that in this day of Christian civ ilization, it is the duty of all nations to to admit universal reciprocal trade mi commerce, a doctrin. not yet. we think, incorporated into the code of international law. And it would not follow that, because the State might prohibit ihe introduction of foreign wheat she could, therefore, prohibit the cultivation of it within th State by her own citizens. The right of tbJtate to prevent the introduction -f foreign objects does not depend upon the fact of their being nuisances, or ofFensit 0 otherwise; but 6he does it, when not rcatrained by the constitution or laws of the United States, in the exercise of her sovereigu will. This, however, is a topic involving questions of power between the State and Federal Governments which we do not intend discussing in the present opinion. We limit ourselves here to the question of ihe power of the Iegis!dture over th property and pursuits of the citizen, under the State constitution. The restriction which we have examined upon the legislative power of ihe State were inserted in the constitution to protect the minority from the oppression of ihe mDjoiily, and all from the usurpation of the legislature, the members of which, unlercut plurality M stem of elections, ma he re i . - turned bv a iiinnriir nf th ntnr.1. Tl.. return a majority to the lti.!iure. whi;:I would declare ail banks a nuisance, ccj fiscal their piper and the buildingi fier wnicn it isuej. So with llalroads. i hen repealed whole sale murders are p-rpetrjted by .some cf them- An J. in Gteei Britiin and France, we have examples of the conlhcstion of the property of the chtirch even: which here, the same Constitution that protect the dealer in berr, -vouM ren.Ur V frx.i invasion by the legislative pnwr r. Is our opinion for th reisor.i riwi ; above, the liquor ict of 1555 i? void. , . -, . . J - . TV W ' 4wbF'S I 1 Let the prisoner he dis. hr-,! it uenevea ro uc eiectej over assist, .'democrat. In the 1th District, retur-l muicaie wie ejection o( ll. V, Jji. American, by 6G0 majority over M. democrat. In ths 5th. II. "V. if r.r.i.American, cert-.inly elected. SrvTork EJcrtioa. New Yoas, N-r. . Returns from about half tha State in. dicate the almost certain succe-s of th " - 3 . American ticket. . While the vote in this citv (or Stern. tary of Stale shows the Larda's Ö74 rxt, ahead or the softs; returns for State Comptroller show the softs 2 130 ah-ad of the hards, bein the strength of the liquor dealers the soft candidate- beir.; on the liquor dealer's ticket. Newspaper By-Laws. A cottmporary lays down the following cH of 'wipaper by-law. They are the best we hs? seen drawn up: I. Bd brief. This is ths aje of te!9graphs and stenography. 2. Be poinleJ. Don't write all around a subject without hitting it. 3. State facts, but don't stop to moralize. It's a drowsy subject. Let the reader do hi on dreaming. 4. Eichew all prefases. Plunge at once into your subject, like a swimmer into colt water. Nctu &ducrttscmcnt S J.V JL Store. Thi s an article of Syrup perior to any oiher kind ever bronpht to tbia inarkcl. Try tome of it and be convinced. Nov 15 33tf ITIcdical Society. The Physicians of this county belong ,l,s u -no uta acnooi. win men bi in C-'.l ? Thri.y. .h 1 of -NO. vAmb.r .t i n i . ember, at i o clock, P. M.t to ferro . . ... V. county Society auxiliary to the Aacii can aieaicai society. Flymoulh, Nov. 15. Notice (o Heirs and Other. ArrLICATO.V will hf mtde V tb Common Pleaa Court of Marshall county. Hat nf Indiana, at its January term, ldV, at tfc Court H.mae in Plymouth, for nn order ta K:t land belonging to the eptate of Daniel Aodrert deceased, his personal estate- being insufficient to pay hi debts. R. COBB ALE V. Cler. Nov. 15, 1S33. 33 j Voffcc to Ilcirm mi a Others. Application will be made to the Common Pleas Court of Marshall County, Iadiana, at its January term, 1856. at tha court house in Plymouth, for an order to sell land belonging to the estate oi George Wiser deceased, his personal estate beif i insufficient to pay his debts. R. CORBALEY. CTk. Nov. 15, 1S55. SSt. Notice. WHEREAS, my wife, Jotepbine LoVmugh baa left tay bul and bsard vritboat jnt caae or provocation, all period art hereby warned from harboring or trnttiur ker on my account, I will py no dehta of hat contracting. JOHN LOLEMAt'GH. Nor. 15. 1855- 55i3 Administrator .Votice. I TOTirp i v - .l.i . v E or oi ine estate ot David A. bailey. " 7 MaiMhall county, deceased- Said estate i ST3pposfd t0 be foi ?Vi r root: Mr v. 5. 8e, CHARL!:S C00K 'Ji

X 1 signed has beea sppciated Admiuiiia-