Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1853-02-03
The Decision of Judge Curtis.

us, IN tue case OF NllllHIn pitch vs.
Nathan NJ. Briggs ct al. involving the con
stituiionaliiy of the Maine Liquor Law
We fud in the Providence Journal the fol
lowing abstract of this doctrine:
"The action was replevin for certain
spirituous liquors committed to the defend
ants. as constabIes of the city ofProvidence
by an order of the Court of Magistrates, I,
be destroyed according to the provisions q
the " Act for the Suppression OF Drnkin!
Houses and Tipping Shops" The adludl
cation Of the case involved imporian, ques
tions arising unGer the Constitution an,
laws of the State. Judge Curtis, in pivinL
his opinion, cited the 10th aud 18th sections
Of article LIST of the constitution, which ar,
as follows:
Sec. 10. In all criminal prosecutions
the accused shall enjoy'the right TO speed,
aud public trial. by an impartial jury to b,
informed of the nature and cause Of the &C
cusation, TO be confronted with the witness
es against him, to have compulsory process
Tor obtaining them ia his favor, TO have th,
assistance of counsel IN his defence, ano
shall be at liberty to speak for himself, nor
shall he be deprived of life, liberty or prop.
erty, unless by the judgment of his peers OF
the laws of the land.
Sec. Is. The right Of trial by jury shall
remain inviolate.
He said the meaning ofthese two clauses
was, that " 10 civil causes trial by jury is
TO he had in those classes Of cases in which
It has been practiced, down 20 the time
when the Constitution was framed and such
trial is to be substantially in accordance
with such modes of proceedings as had
then existed, or might thereafter be devised
by the Legislature, without impairlng the
light itself. But in all criminal cases the
right 10 trial by jury, accompanied by the
other privileges enumerated aud defined, is
absolutely to eAist."
Alter stating tue substance of sections
IL aud 10 of the act for the Suppression Of
Drinking Houses aud Tipplug Shops, he
stated that they were in conflict with the
constitution IN several particulars The
conditions OF appeal we've an nfraction OF
the right OF trial by jury In order TO ob.
tam ,rIal by jury, the party must give Sc
curlty IN sum not less than 5000. with
two sufficient suretles to pay all fines and
costs which might be adjudged against him
and must subject himself to the hazard OF
having the fine inflicted by the Justice of
the Peace increased 6ve-fold ifthe quantity
OF liquor siezed should exceed, as in this
case II did not exceed. five gallons. In the
constitutional provision that no person shall
be deprived OF life, liberty and property
unless by the judgment Of his peers or the
law Of the land, the phrase law OF the land
had been construed to mean by due pro-
cess Of law
This provision of the law also confic,ed
with section 18th of the constitution. eve.
~ man being presumed innocent until he
Is pronounced guilty by law, no act of sever. |
NY which rs not necessary 10 secure an ac-
cused person shall be permitted. The ac,
also confllcted with the clause reouirino
that the accused should be informed of the
nature aud cause of the accusation This
act did not require that any particular per-
son should be charged, and Ia the case at
the bar the complaint charged no one
The process was defective also for want of
certainty in specifying the liquors to be
seized.
1t was also defective in not charging fully
the crime upon which The trial was TO be
had. The accused had not only an absolute
right 10 Trial by jury, but also right to
be so charged that If trial takes place the
Jury should pass upon the whole charge.
But the act provided in the case. of an ap-
peal, where the liquors seized shall exceed
Ave gallons, If the final decision shall be
sgans, the appellant, he shall be adiudoed
common seller aud be sentenced as such
so that he might be convicted of this hioher
offence without being charged with il. and
without trial by jury of Que of the facts
essential 10 constitute IL. But even if the
proceedings against the person and the
property we're reparable, aud the only re-
suit was forfeiture of the property. the
complaint would be still SO deficient IN the
requisite certainty as 10 be bad for that
cause.
He consequently nNld the order of for
TEXTURE invalid; first, because there was no
sufficient complaint; aud secondly, because
the plaintiff was deprived of his property by
criminal prosecution, IN which lie neither
mad nor could have, trial by jury without
submitting to conditions which the legisa-
ture had no constitutional power To impose.
The Court also thought the order not SIM
ply voidable, but absolutely vold; the ma.
glssrates having no Jurisdiction over the pro-
ceedings. And they gave Judgment for the
plaintiff on the demurrer, with nominal
damages
Judge Pitman concurred IN the opinion
The following is an extract from the
opinion OF Judge Pitman, of the District
Court, ,n.the Rhode Island liquor case, IN
the trial of which he was associated with
Judge Curtis:
1.-The Legislature has no right, by an
act, to coniisca,e the property of the cui-
zen; II may be forfeited by violation OF
law, but this must be done without affecting
the right ofthe owner thereof to jury trial.
But The object of the law does not appear to
be so much for the suppression of drinking
houses and tipping Shops as lis tile would
seem to import, as for the destruction of in.
toxicaiing liquors, -because they may be
injurious 10 the community. But those
who drafted the law no doubt knew that this
could not be done without making compen.
satlon TO the owner thereof, as the Constl.
tuition Of Rhode Island, aud most of the
other State Constitutions, provide that pri.
sate property cannot be taken for public
use without compensation. To eyade this
provision At Is made criminal 10 have this
kind OF property. not merely IN drinking
n nd faf.rsl H.. A.