Plymouth weekly banner. (Plymouth, Ind.) 1855-1856, 1855-11-15


thus appears that the law absolutely forbids til
people OF the State to manufacture and sell whisky
aie porter, and beer for as beverage; Or at ali
except Tor the government to be sold by it for medi
cine, &c and it prohibits absolutely the use of those
articles by the people as beverage.
10 the exception as to the admission of foreign
liquors under the constitution and laws of the Uni
ted States, will not be noticed for the reason that
they are admitted simply because they cannot be
prohibited, andnO in accordance with the spirit and
policy ofthe State statute. and which foreign liu-
uors 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 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 objectiona-
ble for, while, according to such view the law de-
signs to permit the use of liquors as beverage il
prohibits the people from manufacturing for their
own use- Its as if the law were that the people
might eat bread but should not raise the grain and
grind il in -four wherewth to make it. 1t would be
an act to prohibit the people from themselves pro-
ducing; and to compel them to purchase from abroad
what they might need to eat and drink. 1t would
involve the principle of an act to annihilate the
State by starving the people constituting to death
and such legislation would hardly comport, we
think. with constitution established to promote the
welfare and prosperity of the people.
We assume it as established, then, that the LIQUOR
utecture, sale and use beverages by the people
of this State of whskey, ale, porter and beer The
opinion has been advanced that the manufacture foI
sale out of this State is not prohibited but it has
not the substance of shadow; and the morality OF
that law which prohibits the distribution of pauper-
ism and crime, disease and death, at home, at home
but permits them to be scattered amongst our neigh
bors, is not to be envied. And we may as well re
mark here as anywhere that if the manufacture and
sale of these articles proper to be carried in
the State for any purpose, it is not competent fol-
the government take to take business from the
people and monopolize it. The government cannot
turn and become the sole dealer in medicines in the
State. And whyl Because the business was. a
and before the organization of the government, ant
isproperiy at all umes, private pursuit of the PEG
pie, as much SO as the manufacture and sale O
brooms tobacco, cloths and the dealing in tea, CO
fee and rice, and the raising of potatoes and tn,
government was organized to protect the people il
such pursuits from the depreciation of powerful ant
lawless individuals the barons of the middle ages
whom they were too weak to resist single -hande,
force and for the government to seize upon thos
pursuits is subversve of the very object for whicl
it was created. "a government is guilty of an in
vasion upon the facilities of industry possessed b.
individuals, when il appropriates itself particula
branch of industry, the business of exchange ant
brokerage for example; when ii sells the exclu
sive privilege of conducting it, Says politica
] economy, note to p. l34.
There are undertakings of public character sue
as the making of public highways, providing uni
form currency, &c., that single individual has no
power to accomplish, and which government must
therefore, prosecute but they are not the ordinar
pursuits of the private citizen.
These, certainly as the general rule, and we ar
not now prepared to name exception, the govern
ment cannot engage in.
This is all we shall here say on this point Tim
f and space forbid that We should elaborate all tina
arise in the case.
The question now presents ITSELF
Secondly. Could the legislature Of this Stat
enact the prohib!tory liquor law under considers
ito?
Few, if any, judicial decisions will be found to al
Z us IN investigating this question: as such law, in
y country possessed of judiciary and constitutio
limiting the legislative powers, has till of late bee
s enacted. Some twelve hundred years ago, Mahom
ct made such law part of his religious creed i
d opposition to the Jewish and Christian systems
: which recommended the moderate, hut forbid tn
5 excessive use Ofintoxicating liquors This Law
u Mahomet, Koran, pp % and SO was perhap the fir:
prohbitOry act, but it does not appear to have hee
: adopted by civilized nations till its late revival
: some shape or other in one more of our siste
u States. Hence, it has not often, if at all, to th
II point passed under judicial consideration.
number of European writers on natural, pub
II lie, and civil law, cited by counsel on behal ofth
State, to show the extent of legislative powers bu
some subjects they admitted TO be, not au
thority here on this doint. They dangerous
. indeed utterly blind guides to follow in searchin
IL for the land marks oflegslative power, in fire
and limited government; for they had in view, whe
u writing, governments existing when and wher
u they wrote; under which they lived and been edu
: cated and which had no written constitutions lm
ing their powers-governments the theory of whic
l. was that. they paternal in character-hat a
/ power was in them by divine right, and they hence
/ absolute; that the people of country had no right
: except what the government of that country era
/ ciously fit to confer upon them, and that it wa
its duty like a father towards his children, to CON
mand whatever it deemed expedient for the publ
good, without first, In any manner, consulting tina
public, or recognizing in its members any indvdui
9 rights.
/ Indeed, the discovery of the great doctrine c
rights in the people as against the government ha
! not been made when the writers above referred
lived. Such governments as those described
could adopt the maxim quoted by counsel, that tn
safety of the people the supreme law, and act upo
it, and being severally the sole judges of what the
I safety in the countries governed, respectively re
quired, could prescribe what the people should ca
and drink what POLITICAL moral and religious creed
: they should believe, and punish heresy by burnin
at the stake, all for the public good. Even In Gres
Britain, esteemed to have the most liberal coHsttr
/ ton on the Eastern continent, Magma Charta is nc
of sufficient potency to restrain the action of Parlia
ment, as the judiciary do not, as settled rule, brln
v laws to the test of its provisions. Laws ther
u overthrow occasionally by judicial construction
e But here we have written constitutions which ar
the supreme law, which our legislatures are sworn
, support, within whose restrictions they must linn
II their action for the public welfare and whose barr
ers they cannot overleap under any pretext of SUI
posed safety of the peoples for along with write
constitutions we have Judiciary whose duty it is.
the only of securing to the people safety froI
y Legislative aggression, to annul all legislative acto
without the pale of those instruments. This duty
- the judicial department, in this country demon
IL strated by Chief Justice Marshall in Marberry "
I Madison, Cranch l39, and has since been reorgaI
:, lied as settled American law. The maxims abov
quoted, therefore. applied to legislative power,
&c here without meaning
:, Nor does it prove the power of the Stat
II legislature to enact the law in question,
d show that the Supreme Court of the Uni
; ted States has decided that it cannot de
Q clare such State law imperative, for tina
d Court can only declare void such Stat
|, laws as conflict with the restrictions i'm
= posed npon State power by the Constitu
|. ton of United States; and if, in that con
l. stitution the States are not restrained fror
y passing laws in violation of the natufs