Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1855-11-23

~ Ot WHICH WAS tndl tnty were pa
ternal in character-that all power
was in them by divine right. and they
hence. abselate; that the people Of ,
country had no rights except what the
government Of that country gracionsly
saw ft to confer upon them. and thai
it was its duty, like as father towards
bis children. to command whatever il
deemed expedient for the pnblic good,
without first. in any manner, consult
ing that public. or recognizing in its
members any individual rights.
Indeed, the great discovery of the
great doctrine Of rights in the people
as against the government. had not
been made when the writer's above
referred to lived. Such governments
as those described, could adopt the
maxim quoted by counsel, that the
safety of the people Is the supreme
law, and act upon it; and bein ( sew
orally the sole judges Of what their
safety, in the countries governed. re-
spectively required, could prescribe
what the people should eat and drink.
what political. and religious creeds
they should believe in, and punish
heresy by burning at the stake. all for
the public good. Even in Great Brit
tain. esteemed to have been the most
liberal constitution on the Eastern
continent. Aogna Charta is not Of suf-
ficient potency to restrain the action
OF Parliament, as the judiciary do
not, as settled rule. bring laws to
the test of its provisions. Laws are
there overthrown only occasionally.
by Judicial construction. But here we
have written constitutions which are
the supreme law, which our legisla-
tors are sworn to support. within
whose restrictions they must limit their
action for the public welfare. and
whose barriers they cannot overeap,
under any pretext of supposed safety
OF the people; for along with our writ
ten 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 leg
islatiye action without the pale Of those
instruments. This duty Of the judi
cial department. in this country, was
demonstrated by Chief Justice Mar
shall in Marberry v, Madison.
Cranch 1877. and has since been rec
ognized as settled American law.
The maxim above quoted. therefore.
as applied to Legislative pow er. is. here
without meaning.
Nor does it prove the power of the
State Legislature to enact the law in
question. to show that the supreme
Court of the United States has decided
that il cannot declare such law mop
crate. for that Court can only declare
void such State laws as conflict with
the restrictions imposed upon State pow
er by the Constitution OF the United
States; and il. in that constitution. the
States are not restrained from passing
laws in violation of the natural rights
of citizen, the Supreme Court of the
United States cannot act upon such laws
when passed. because they do not fall
within its jurisdiction. Hence, that
Court has decided that State may de-
prive its citizens Of property without
making competition. and of the right Of
trial by jury: Brown v, the Mayor.
DC. 2 Peters, e43; may pass laws de-
priving them OF vested rights in prop
erty. and Of the benefits Of judgements
they have obtained in courts. and the
like; Salterlee v. Matlhewson. 2 Peters.
388 and the license cases in 9th How
rd. 504; and no redress be obtainable
in the United..Slates Constitution, pro-
hibiting the passage Of such State
Laws. But the Supreme Court OF
this State has decided that under our
State Constitution. the Legislature
sannot enact law for the taking of
private property without making COM
pensalion: cannot deprive the citizen
Of the right of trial by jury and can
not set aside the judgement Of a court
&C.. Young v. The Stute Bank, 4lh
Ind. Rep. sol. Mccormick v. Lafay-
ette. LIST. Ind. 80. The State v. Mead.
4 Blackf. 500.
IL does not, therefore. follow that
because the constitution Of the United
States does not prohibit State legisla-
ture infringing the natural rights ol
the citizen. such Legislation is vald:--
| The constitution Of the United States
may not, but that Of the State may
inhibit il.
| And so. indeed. according 10 many
eminent judges. may principles Of nat.
urai justice. Independently Of all con-
stltutional restraint. This doctrine
has been asserted here. In Andrew
v. Russell. z Blackf., 474. Judge
Dewey says: 1--WE have said that the
only provisions or State Constitutions
restrictive Of the power II the Legisla
ture." &c. are &c. "There are GER
tain absolute rights, and the right o
property Is among them. which in al
Tree governments Of necessity be pro
tec,ed from Legislative Interference
irrespective OF the constitutions
checks and guards"
Should we 6nd, however, in the
course OF this investigation that III,
constitution of our free State does
, in fact, sufficiently protect naturs
rights from Legislative interference
, as it surely does, or il is greviovsl,
detective, II will not become necessary
for us to inquire whether. in any even
, il might be proper TO fall back upor
: the doctrine above so unhesitatingl,
: asserted.
Does our constitution then, prohibi
the passage Of such an act as that nov
, being considered? A dictum is quo
ted by counsel from the opinion In Be
D ply v. The State. 4 Ind. Rep. 264
+; that "it is competent for the legisla
Q ture 10 declare any practice deeme'
$ injurious to the public. nuisance
: and to punish 1t accordingly" AM
y hence, II Is reasoned. any property
1 but dicta, rs counsel well know, ar
. not necessarily law; are, in fact, gen
| Al -