New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-07-18
BROOKLYN

BROOKLYN
SECOND DISTRICT SUPREME COURT-GLSEHlL TERn-
JULY i7-Bofore Judges STRONG BKoSs and Hoc*WELL
ARGUMENT on THE coSsTITUTIoSALIrr OF THE PRO-
BIBIToRY LIQVoR LAW.
The People Agi. Philip Bierbeneks.
This case carne ND on return 20 a wit q certorsr
in The case Of the sbovenamed defendant, convicted
at Pougbkeopsie for keeping and exposing Mtoxicst
ing liquors to wit lager beer in violation OF the act
e,fited an act for the Prevention Of Intempc7ance
Pauperism and Crime.
The defendant had been charged as above on the
oath Of John f. vassor and Joseph RoselIe before the
County Judge Of Dutcbess County, Egbert O. Ed
ridge, Esq. rs a Court Of Special Sessions.
Defendants counsel had then moved that he be dis
charged on The following grounds:
Because did not appear from the complaint and an
davis tut that all liquors od BY the defendant imported
second: That does appear bu, that the defendant the
importer and thai the liquor not 10 the Original paeksges
Thirds Because can be prosecuted except the person
who has tux, ont license and executed sn 5naetakns
Foutb Because there ofnse ct rged against valid
law that is that the Probbitoy Law Is unconstitutional and
Al these objections were then overruled by the
County Judge, and the defendant demanded an ex-
animation. Refused
Defendant then offered bail to appear at the Court
Of Sessions at the Oyer and Termner. Both offers
refused.
Defendant then demanded trial by jury, and
twelve were summoned, but only Fix were drawn and
sworn. Defendant demanded twelve men. Refused
by the Court. To all these rulings the defendant ex-
cepted and the trial proceeded.
writ of ceTtiorort was served the Judge on the
nth, and the argument adjourned till Tuesday the
18th.
MIR. j. F. Barnard Of Poughkeepsie for the defend
ant having read the orignel writ and return setting
forth the above facts moved for the discharge Of the
defendant The chief objection be desired to raise
the as. enumerated ene and the points were these:
First for the reason that that part of the law which
prohibits the sale absolutely is unconstitutional and
VOID; the Legislature had no power to prohibit lit
was constitutional the proceedings should show affirm
ativey that an ofense had been committed, showing
the LIQUOR was liquor not imported but manufactured
IN the State Of NewYork. In other words, that the
exception applied to liquor in whichever packages they
were contained.
When the words of exception were contained in the
enacting clause, they must show it does not come
within The exception further the Constitution of tle
United States and of the State OF New-Yort, gave
every citizen the right not TO be restrained or held to
~ sWer for any infamous crime without being indicted
by a Grand jury. Well, was this an Infamous crime
An infamous crime was where il disqualified the person
convicted as witness or juryman and this very act
made person convicted incompetent TO be juror,
and so goes the very of what s by the COM
mon law called an infamous crime.
The Statute il true called only felones Infamous,
but the Constitution higher than the Statute, and
the Statute could not change the meaning or the Ian
guage of the Constitution. Again the law was uncon-
stutopa in that, it deprived the citizen of liberty
without due process oflaw. In this 1t was anomalous,
and course unknown to the law.
There was also a lack Of power in The Legislature
to make a County Judge criminal officer at all.
There was no power given by the Constitution to
make the County Judge court of criminal uIsdc-
ton except Court of Sessions with certain JUS
tees elected for that purpose. There was no power
TO make criminal courts at all except Courts of Sos
soIs and local courts in cities o. uniform organization
and jurisdiction For these reasons they moved for
his discharge
Judge Brown-Your point is that due process of
" law means the proceedings OF the Common Law
and O Jury Of twelve men.
Mr.. Barnard-CeTtaDly, your Honor.
7. c. Campbell, Esq, District Attorney of Duchess
County, for the People, replied, arguing in the first
place that there was no power under this statutory
certiorer TO discharge the defendant while he held
under color of legal authority; but that be must be
left to his action or his Common-L Law certiorari.
Judge Strong--But they go further here, and say
that there is no color-tha there is no Court at all
Mr. CAMPBELL understand that but l contend
that that there color under this statute, aud it is
point for this Court TO decide. With respect TO the
consiutionaty of prohibiting liquor as beverage,
the IeoIle had surrendered all their right TO make
laws TO the Legislature.
Judge Brow1-It is only qualified surrender.
Mr. Campbell-Qusifed, certainly, so far as TO pre-
serve the inalcnabc rights of man. There IL no other
qualification except those expressly reserved.
Judge Srong-The Constitution guarantees TO us
Republican Government and laws, and there can be
no pGrer TO enact despotic laws.
MIR. Campbell--The difficulty then is TO say what
are deepohc laws; If we could cay that u would be
different thing. IL has been held IN the United States
Court that nothing applies TO State except tie power
ia given and where the Constitution is silent then
every State Legislature has the right There is scarcely
any limit to this legislative power, aud the people
have oly the power to withdraw 1t by appointing new
legislators. The Constitution limits the legislative
power and the people have only the power to with
draw Il by appointing new Legislators The constltu-
ional limits OF the legislative power must be strictly
construed The Constitution of 1876 said the old law
such parts of lie law and acts OF the Legsla
ture as existed in IN and by the resolution OF 2Oh
April folowing-shall exist in the Legislature.
Judge Brown-1hat is a mere adoption of Cons.itu-
tonal rules 1t don't touch the Constitution rights.
Mr.. CampbeI-We say that the people of the
United States are in the same position. They have
surrendered their authority. This is well laid down
in the elementary writer's. Kent says that the prin-
oiple of the English Parliament being omnipotent
does not extend to the United States. IL there be no
Constitutional objection is with Is absolute as IN
any other country but in this in ell countries where
there is a written Constitution an act may be VOID as
against the Constitution.
To proceed to another point, what was capital or
infamous crime If this not one the point as 10
bis right 10 give bail and appear before the Grand
Jury fell to the ground. Such right was only guaran
toed in those cases and would they say this was On
Infamous crime If this part of the statute was OBJ
iectionable and void the whole statute therefore
void Tie Court must surely only say this much Is
unconstitutional but they counsel SAID that was not
necessary. They found Infamous crimes defined IN the
Revised Statutes q Il. $. 702 old paging, aud tins
statute row incorporated into the Revised statute
existed before the two last Constitutions were passed.
and they must corse uently have been passed WIN
reference this statute aud the legal meaning OF tne
word ss therein defined.
The Common Law did not at any time include mis-
demeanors in the class of Infamous crimes, bat It IL
said that the Statute by subsequent provision, rem
ders him Infamous but II was surely too far ieicncd
10 say a man rendered Infamous because he was
disqualified from serving on Jury. A man was re-
quirod to have $3.50 property to qushiy HIM, whereas
he might be a Senator without sixpence and would
they argue mere disqualification Of, or objection TO