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

ION Is written containing them. This
the profession we'll understand, and
hence are not misled by them il erro-
neous.
And il must be manifest to every
one, on moments consideration. that
the doctrine Just quoted cannot be ia
ken for law, and could not have been
50 intended. in an unlimited sense, by
the Ieared Judge who uttered il. The
legislature cannot declare any prac
practice it may deem injurious to the
public. nuisance, and punish it ac-
cordingly. 1t cannot so declare the
praclice>of reading the bible, though.
perhaps. the government Of Spain once
did. II cannot declare the practice OF
worshipping God according TO the die
tates OF ones own conscience, though
perhaps Massachusetts. in the days OF
Roger Williams. did do it. 1t cannot
SO declare the practice Of teaching
schools. though perhaps Virginia
might have done so in 1874, when
Governor Berkley wrote from that col
ony / thank God there are no free
schools nor printing, and l hope we
shall not have these hundred years:
for learning has brought disobedience
and heresy and sects into the world.
and printing has divulged them, and
iibels against the best government
God keep us from bolh." 1t cannot
so declare the holding Of political meet
Jugs and making speeches, the bearing
Of arms, publishing Of newspapers,
&c, &c. however injurious to the
public legislature might deem such
practices to be; and why? Because
the constitution forbids such declara-
ton and punishment, and permits the
people TO use these practices So
with property; the legislature cannot
interfere with it further, at all events,
than the constitution permits. In
short. the Legislature cannot forbid
and punish the doing Of tha. which
the constitution permits: and cannot
take from the citizen that which
the constitution says he shall have
and enjoy. If il can, then we
think all will admit that the constitu-
ton is itself worthless. the liberties Of
truth dream, and our government as
despctic as any on earth.
And we may here remark that the
Legislature can add nothing to its pow
er over things by declaring them nui-
sances. A public nuisance is that
which is noxious. offensive to all the
people who may come in contact with
it; and the offensive quality is, in the
thing itself, or the particular manner
OF us use, and Is neither increased nor
diminished by legislative declara-
tion. What the legislature has a right
by the constitution TO prohibit and
punish. even to the forfeiture of prop
erty, il may thus deal with without
first declaring the matter nuisance;
and whatever it has not right by the
constitution to prohibit and punish,
il cannot thus deal with even though
It FIRST fixlupon it that odious name.-
To illustrate: the legislature has pow
er. perhaps unlimited. over the public
highways. 1t provides for opening,
repairing and vacating them. They
are not the private property Of the
citizen. The legislature. therefore,
may declare what distractions shall
be permitted, and what removed.
whether they be. in fact, nuisances or
not. So with Congress. in relation
to the national highways forcommerce.
These are public for purposes of navi-
cation, and are perhaps, completely
under the Legislative power. So the
legislature. when the practice was to
licence houses for the exclusive retail
Of spurious liquors. that is. the sale Of
them in particular quantities in partic-
ular places, could impose conditions
upon which thelicense should be grant
ed. and could make the violation Of
the conditions, cause Of forfeiture,
whether it was such as rendered the
retailing house nuisance or not, and
whether il was 30 denominated or
not.
But the Legislature cannot declare
the path from my house to my barn.
nor any obstruction may place in il,
a nuisance, and order il discontinued;
nor can II declare my store-room and
stock OF goods a nuisance. prohibit my
selling them, and order them destroy
ed, because such acts would invade
private property which the constitution
protects. Still the fact may be that
the path aud the store.room arc nui.
sances which l have no right to main
tain, for while have the right to use
my own property, still must not use
1t as to injure others. 50. all trades.
practices, and property, may, by the
manner, time. or place OF use. become
nuisances. in fact. in quality. and SUBJ
ject, consequently, to forfeiture and
abatement for example, slaughter
houses in cities, sr some descriptions of
retailing houses: and this II may have
we'll inquired into: and. IL the fact Of
nuisance be found, may have the for
felture and abatemen. adjudged and
executed. And IL is the province Of
the judiciary to conduct the inquiry,
and declare the fact or deny 1t. as the
truth may turn out to be- Many
things, by such proceedings, have al
ready become established nuisances at
common law. BY this mode, when a
party loses his trade or property, he
does SO because Of his own fault. and
this, according to the judgement Of his
peers, and the provisions OF the gen.
eral laws Of the land, and not by the
! tyranny Of the legislature, whose
enactment may not BE- the laws Of the
land. See numerous cases collected
on this point in the first chapter ol
Blackwell AN Tax Titles.
In accordance with this doctrine we
find that tho criminal code Of this
State has ever contained the general
provision that any person who erected
or maintained q nuisance should be fin.
. cd DC. and that the nuisance nigh,
: be abaled. 2 X. s. p. p. 428, 42o
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