The Evansville daily journal. [volume] (Evansville, Ia. [i.e. Ind.]) 1848-1862, 1855-11-16
omce of publication Corner Of nan streets.
IGBe 0ailg yournaI.
Haheas Corpus before Judge Perkins of the
Supreme Court.
HERMAN rs. THE STATE.


HERMAN rs. THE STATE.
OPINION OF THE JUDGE.
coNcLUDED.1
In accordance with this doctrine we find
THAT the criminal code Of this State has ever
lcontained the general provision that any per-
son who erected or maintained nuisance
should be fined, &C., and that the nuisance
might be abated; 2 R. s. p. p. 529. 429, Secs.
8 and 9-a provision that submits it to the
country. to wit: jury under the charge of the
Court, to decide the fact of nuisance. This
provision the courts have been daily enforc-
!ing against various noxious subjects; and if
breweries and casks of liquor are nuisance
why have they not been prosecuted and abated
also? What was the need of this social law
upon the subject? We have assumed thus
far, upon this branch of the case, that the con-
stitution protects private property and per-
suits, and the use of private property by way
Iof beverage as well as medicine 1t may be
necessary, at this day, to demonstrate the fact.
The first section of the first article declares,
that all men are endowed by their Creator
with certain unalienable rights; that among
these are life, liberty and pursuit of happiness
Under our constitution, then, we all have
some natural rights that have not been sur
rendered, and which government cannot de-
prive us Of unless we shall forfeit them by
our crimes; and to secure to us the enjoyment
of these rights is the great end and aim of the
constitution ITSELF
1t thus appears conceded that rights exist
ed anterior to the constitution-that we did
not derive them from it, but established it to
secure to US the enjoyment of them; and it
here becomes important to ascertain with
some degree of precision what these rights,
natural rights, are
Chancellor Kent following Blackstone says:
vol. 2, p. |. "The absolute Cor natural) rights
of individuals may be resolved into the right
of personal security, the right Of personal liber-
Ity, and the right to acquire and enjoy proper
ty;" not some property, or one kind of prop
Ierty, but at least, whatsoever the society or
Iganizing government recognizes as property.
How much does this right embrace, how far
does it extend2 1t undoubtedly extends to
the right of purusing the trades of manufactur-
ing buying and selling; and to the practice of
using. These acts are but means of acquiring
and enjoying, and are absolutely necessary
and incidental to them. What, we may ask,
is the right of property WORTH stript of the
right of producing and using? "The right of
property is equally invaded by obstructing
the free employment Of the means Of produc-
ton, as by violently depriving the proprietor
Of the pr6duct fhis land,'' says Pol Economy,
1873.
In Arrow Smith V. Burlinger, A Mclean,
on p 4S7, it is said: "a freeman may buy and
sell at his pleasure. This right is not of socie-
ty, but from nature. He never gave it up. 1t
would be amusing to see a man hunting thro'
our law books for authority to buy or sell or
make bargain" To the same effect Lord
Coke, in 2 Inst. chap. 20, p. AZ. Rutherford's
Institutes. p. 20. This great natural right Of
using our liberty in pursuing trade and business
for the acquisition of property, and of pursu-
ing our happiness in using it, though not Sc
cure in Europe from the invasions of omnipo-
tent parliaments or executives is secured to us
by our constitution. For in addition to the
first section which we have quoted and made
from the fact that the very purpose ofestab-
fishing the constitution was such security by
Section IL, Art 1, it is declared that we shall
be secure in persons, houses, papers and effects
against unreasonable search and seizure" By
Section 21, we have the right to devote our
labor to our own advantage, and to keep our
property or its value for our own use, as they
cannot be taken from us without being paid
for. And by section II it is declared that
every man, for injury done to him in his per-
son, property, or reputation, shall have RENE
dy by due course of law These sections
fairly construed, will protect the citizen in the
use of his industrial faculties and the enjoy
ment of his acquisitions. This doctrine is not
new in this court. In Doe V. Douglass, s
Blackf. 10, in speaking of the limitations in
our constitution upon the Legislative power, it
is said, "they restrain the legislature from
passing law impairing the obligation of con-
tract, from the performance Of judicial act,
and from any fragrant violation of the right of
private property. This latter restriction, we
think, clearly contained in the 1st and 24th
sections of the first article of our constitution
of 1916.
LAY down this proposition, then, as ap-
|plicable to the present case; that the right of
liberty and pursuing happiness secured by the
constitution, embraces the right in each COM
pos mentis individual, of selecting what he will
eat and drink; in short, his beverages, so far as
he may be capable of producing them, or they
may be within his reach, and that the legisla-
tlre cannot take away that right by direct
enactment Ifthe constitution does not secure
this right to the people, it secures nothing of
value. If the people are subject to be CONTROL
led by the legislature in the matter of their
beverages, so they are as to their articles of
dress, and in their hours ofsleeping. and wax
ing. And if the people are incompetent to
select their own beverages, they are also in
competent to determine anything in relation
to their living, and should be placed at once in
a state of pupilage to a set ofgovernment sump- !
tuary officers; eulogies upon the dignity of
human nature should cease, and the doctrine
of the competency of the people for selfgoyern-
ment be declared deluding rhetorical -four
ish, If the government can prohibit any prac-
tice it pleases it can prohibit the drinking Of
cold water. Can it do that? If not, why
not?
If we are right in this, that the constitution
restrains the legislature from passing law
the diet of the people, a sumptuary