The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-17
The Laquor Law and the Candidates r01
Attorney General OF tho State.
Mr.. TILpNNS OPINION.

Tor the Prevention Of lntemperance, Pauperism and
The question relates to the functions Of the office for
which have been nominated, and may reasonably, and
Under circumstances, have hesitation in stating
TO you opinions which have been expressed to many
to the
and which accord entirely with the rules for constituting
our state and fedeatve constitutions the principles Of
rocal economy and the convictions the proper
sphere Of government by which my political action has
been hitherto invariably guided.
The design OF the law TO which you refer is to stop the
use of all distilled spirits wines, ales and beers
cept for manufacturing, medicinal and sacramental
purposes, by disabling all individuals from obtain
Ing these articles, unless from certain quasi public
officers invested with legal power to Judge, in their own
INTENDED by the purchaser 1t is not strange that the
authors which aims at controlling the tastes
and habits OF three and half millions Of people in
matter which each individual must regard as peculiarly,
if not exclusively personal to hmsel-which aims at
making by legislative fat, an instantaneous revou-
ton in The traditional customs OF large classes IN par
ticular respect to which all apt to be most
tenaciousshonld deem it necessary 20 invoke the aid
such an object they naturally what 1t required,
Their than what the Constitution allows They devised
and incorporated into this law special criminal proce
dure On which they obviously relied for the enforcement
Of it's prohibitions and penalties That procedure Is
wanting in the characteristic features and es.
seniial elements Of the common law procedure
applicable to such cases, as il has been mme-
MORALLY pracsed in this State and as it has been de-
expounded and uph eld by unbroken series OF
judicial decisions well as by the courts OF our
sister States the federal government and Of that coua
does The stop Reversing fundamental rule of
evidence which founded in and natural equity
anu mas LOT ages snieu n a.
1t declares delivery to be presumptve evidence OF
sale and the sale to be sufficient proof of an unlawful
intent Coneedpg certain TO be proper and neces
say that the sale cannot be wholly forbidden it makes
the seller nqusitor nto the secret purpose OF the
buyer it then disrusts its agent and assumes to
deal with the intent with which he does act author
lied by it lawful and shrinking from ITSELF attempt
ing 10 prove the rue nature oftha intent it pronounces
equally difficult character 1t il but fair to add that the
act applies the same code to every citizen who delivers
bottle wine or glass of for the most useful hu
purpose Another Of its provisions passes sentence
ooutawry upon certain property and abrogates all RENE
dies for its recovery, against thief robber I'M
less upon the npaccable condition that the true owner
shall first prove armativey the absence from his own
ancient and well settled legal definition in order to at
tack the incidents OF nuisance to property under CIR
cumstances that bear analogy to that character And
in many respects the act works sweeping legislative con-
| hscaiions OF private property.
as this that our State constitution Intends 10 protect
every citizen, when it declares that no personsha be
deprived OF lie liberty or property without due pro
Of awo These latter WORDS are early legal para
phrase of the words 'sIaw of the land In Magma cdrso
which also adopted from it into another provision OF
our constitution. The restraints they create were
originally imposed the executive power Our Anglo
Saxon ancestors, jealous in behalf Of the common law,
often invoked their protection not merely against the
arbitrary acts of the sovereign, but against his
attempts to introduce novel similar to that
adopted in this act and borrowed the
Brought to this country with other sacred traditions of
ancient freedom tAey inserted in our American
written constitutions as restraints ON the legislative pow
in of individual rights In this state the Ian
guoge of this restriction has received well settled judi
cia Interpretation. 1t has been held to restrain the ie
gisature from itself usurping judicial power over he IL
berry property and from creating eny new process for
the Forfeiture OF hose great rights which should suostan
italy depart the customary procedure OF the
mon law. Ibi Established construction must have been
famiaf to The and learned lawyers who shared in
venton of 1896 in the words which had received
such construction the clause adopted by that body
and ratified the Deliberate and permanent will of
the people, expressed in the fundamental law Of the
State. In the sense, it is binding their le
gslaiive agents and the judicial tribunals am of
OPINION therefore, that the Probitory act in the pro-
visions which its distinguishing characeriscsare
interviewer with its whole structure and supply the
means which it relies to effect its purpose-is uncon-
| stitutioDal and void.
Such legislation springs from msconcepton of the
proper sphere Of government u no part OF the duty
HIS conduct may affect others lot remotely and conse-
quen,ially but by violating rights which legislation can
pie leaves individual and conscience
trusts nothing to selfculture and substitutes the wisdom
ment ordained by Providence. Ihs whole progress of
society consists in learning how to attain BY the indie
those objects which first attempted only through
the agency Of and in lessenng the sphere OF
legislation and enargng that Of the individual reason
nized this idea completely than other and the
democratic party has generally been the faithful guardian
Of its progressive deveiorement. In most Of the great
practical questions of time has opposed the inter-
ference Of for the best objects and be-
cause was secitou for these Objects has preferred to
trust them wiser, safer and efficient agencies.
| Devoted TO the rights Of our American industry,
which is now beginning to fill the world with the
Of its achievements refused direct It's appca
ton by prohibo,y or protective tariffs preserring that
each should Judge how he can make his own labor
most productive and trusting for the aggregate result
to those natural laws which enable every one Of our mil
lion Of city population to daily choose his food and yet
beforehand. Claiming good currency FOR the people,
and wen regulated exchanges has discarded national
guardianship Of the laws Of trade. Friendly to the
dem machinery OF travel and transport which by cheap
hss fertility 70 the
genay TO the other, It has opposed internal Improve
%ens BY the general government and prohibited loans
special charters and established general laws Of
largely occupied the public attention for generation
| because the democratic party has favored the ends
it has rejected the means by which large parties aud
them To day. while it is in favor Of sobriey and good
morals it discwns system Of coercive legislation, which
cannot produce them, but must create many serio
| eyif-which violates constitutional guarantees az
sound principles Of Observation-Disclosures the rightfu
main OF the individual judgment and conscience, All
takes step backward towards that barbarian when
the wages Of labor the prices of commodities, mans
calling itself paterna ] need not add that in this
clusion, well as in the general Of the demo-
with great respect gentlemen ssM1R 'SaTH SES
1 To Hon. JoHN TAYLOR and ANDREW KIRK, Esq.
MR.. suTHERLAND's OPINION.
/ No. $50 BROADWAY New YORK CTTr,
MONDAY, Oct. g. 1855 J
| r. FTNcH, ESQ.,, Chairman, &c.
sR-Cn my return last Saturday night from the Court
OF Appeals at Albany where had been for some days
found your letter. without date requesting answers to the
| following nterrogntories:-
FrstAre you in favor Of opposed to the enactment
| of Prohibitory liquor law9
second-Ae you In favor Of or opposed to the enact.
men Of any coercve oppressive Liquor law whatever
1hirdHre you in favor Of opposed to an enactment
Of law which would require than ten dollars for
| license TO sell spilituous other liquorsY
Fourth-H elected would you your influence Ia ia
yor OF or opposed the enactment OF the laws alluded to
in the foregoing intcrrogatc riesY
| answer with pleasure as follows:-
| First am opposed to the Prohbitory Liquor Law
lately passed by The Legislature Of this State Doth
poic and uncon stitutiona and opposed TO the
actment Of any prohibtory law impoitic II not
constitutional am opposed to this kind or class OF le
qislatye enactments repugnant to the freedom and
liberty OF reemen" and Inconsistent with the theory
| and operation Of cur political institutions.
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