New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-19
u,nnr cOyKLIN's REPLY.
MELRosE, necr Auburn, may !

uIfV i'Yh'HNNS+'N'''A~e'
ofthe 9th instant 10 make known to you my opinion
obe coDsiitutionaty Of those parts OF the Act Tor
the Prevention Of In,emperance, Peuperism and
"Crime.o lately enacted by the Legislature of this
State. that have been drawn into question and espc-
chilly Of the validity Of Mr.. Hills objections thereto
take no exception to your expectation that will do
tb, IL at a gratutously because recognize the OBJ
LEGATION resting on every member Of society to en-
deavor t. promote its welfare.
But circumstances, with detail Of which it Is I'M
necessary TO trouble YOU prevent me from attempting
more than TO state very summarIy the impressions
,n,otou on the subject after careful perusal Of Mr.
Hills elaborate and able argument, but without any
examination Of the numerous authorities he has seen
fl to cite. The principles laid down III these author
ties ought to be familiar to every lawyer though some
Of them doubtless may nevertheless shed hight upon
the application Of those principles TO the questions to
which YOU have invited my attention.
The denunciaons OF this net os unconstitutional by
those with whose particular pursuits or habits It comes
in conflict ore in terms sweeping and Ddscrimnate
TINT NAV be useful at the outset briefly 70 define the
actual limits Of the dcbatabc ground if any, covered
by it. No sound lawyer will deny that State Legs-
aiure has authority to pass laws for the purposes nd
Gated nv the title Of tins act and to tins end not only to
prohibit domestic traffic in intoxicating liquors Dut also
10 subject them 10 forfeiture and destruction ms nO4
ions 10 hc public health and morals TO protect So
cjetv AT large against the aggrcssons OF ts evil
poscd or needless members the main design of civil
government, ond for community 10 renOunce TINS
power by Withholding II from Its legislative represent
ativcs would be suicidal
II the right by law to ordan md direct the destruc-
ton Of alcoholic liquors appears questionable at first
bush it is only because OF the novelty of its exercise.
In regard TO other kinds OF property like power has
long since been exercised in this State as II probably
has been in every State in The Union, and indeed by
every civilized nation IN the world, without scrupo or
objection. The authority conferred on the Health
Officer Of the City OF Newiork, for the purpose Of
preventing inf cton cOniagOn, 10 destroy bedding
or clothing or any part OF cargo found on board
vessel subject TO quarantine and that he may deem
Injected" the power given to- civic corporations 10
seize and coniiscato gunpowder kept IN improper
places; the duty eDjOined on sheriis constabcs AID
police officers to destroy l.. o. and faro tables and
other apparatus for gaming; and the right conferred
by law ON all persons to kill dogs that wOIry sheep,
are familiar example, Of the exercise by the Legsla
ture of tits Slate OF the conservative power in ques-
ion But il in by the National Legislature that in this
country the power TO soze and confscatc private prop
erty for iniracons of municipal lava and as
means of compelling obedience thereto has been most
extensively and unspanngly exercised refer cs-
pecially to the familiar acts of Congress rcgu
atng Inc mportatons of foreign goods, though there
are many other instances of the exercise of tins power
by the National Legislature. II has uniformly been
he roey of the United States TO rely for revenue
mainly on duties levied on imported merchandise. TO
secuIo their payment certain prescribed forms are
qured TO be observed by the inn orier, and If he oms
them, whether wiliuy or ne3hgenuy, his goods, and
in some instances the vessel other vehicle IN which
they ore brought into the country, subject TO for
leituTc whereby the efiectuay deprived of
his property if it had been destroyed. With respect
20 the act under consideration there those II is true
who profess TO believe that IN the present instance 1t
was nexpcdont to resort to THIS power.
This however, was a question addressed 10 the dis
cretiou of tLc Legislature, and even cOnccdiug that
the large malotes by which the 0ct passed erred
IN iudp lnont in this respect il is the less valid and
obligatory on this account But It smoreover srenu
ously insisted that the forms Of procedure prescribed
by Il TO accomplish the destruction of obnoxious
LIQUORS are in conflict with OF The provisions OF the
Bill of Rights incorporated in our State Constitution,
declaring that ono person shall DC deprived OF life,
Helty or property irhOUt due process Of iaw. This
fundamental principle of civil liberty is asserted in the
English Magma Charia, and was designed TO shield the
subject against arbitrary and tyranncal acts on the
part of tie Crown.
II forms q part of one of the amendments to the Con-
st,uiion of lie United States and has been incopOat
ed into many not all of the Constitutions OF the States
COMPOSING our Union The great importance attached
to tby writers on the English Constitution, and the
cogent propeiy of its observance in this country have
naturally led TO this repeated assertion OF 1t as one OF
the fundamental principles of free government, al
though probably little apprehension has actually been
felt OF its violation, and no very clear motions eher
tanned Of It's supposed necessity or practical operation
nnder our political system. lie incorporation IN our
organic laws hardly be supposed to have been DC
signed primarily as restraint ON inc legislative power
though doubtless legislative act directing or author
ling acis clearly forbidden by it would be void But
whatever else may have been the design OF It's formal
assertion il is very certain that II was not intended 10
inherent In every organized community, or 10 enc0u-
ace fancful objections however plausible, 10 such re-
raints upon individual action may be requisite Tor
this purpose. 80
The aucsiion is whether there is anything unwar-
ranae in the exercise 10y the people OF the state OF
New-York getting through their constitutional repre-
scutatives in tho instance under considerations
Air Hills oil ectons relate chiefly TO the proceedings
prescribed 10 ascertain whether the liquors coplahed
Of are really such as are liable 10 forfeiture Onques
tonahly thosc proceedings ought 10 look with scrupu
ous care not ess TO the security of the owner against
injustice than to that of the public against miraculous
of The law.
1t is alleged that the safeguards provided against
prvato oppression are insufficient. But the power OF
remedial legislation mfs the power Of adapting 10
the nature of the evil to be suppressed and the ccun
stances and cNigcncCs OF the case. In the present
case it did not and could not escape the attention OF
the Legislature that unless the provisions OF the aet
wer, of so stringent character a. TO shut out tue
prospect of impunity mutiiudes OF fraudulent and
cunning schemes would be devised and Oel success
fully put in practice to oyade The law or eludc lie pen
atos. Against such consequence II was nshi,
proper and necessary for The Legislature studcuHy 10
guard. There was abundant reason also 10 apprehed
that or soIae time at least amer the passage o. the
oct there would be frequent violations OF It and con-
scqucnty numerous prosecutions under Il. For the
purpose Of mitigating great evil i cmiuenty
=, 10 rCquiTe prosecutions for forfeiture 10 be
Quoted in the most dlec and simple manner compati-
be with the necessary regard 20 justice and for this
and otter reasons that reasonable presumption until
rYelled should take tie place. 10 extent somewhat
greeer than usual in ordinary legal proceedings, OF
d.roct proof
Undoubtedly these principles were to he applied, not
re'Aessy OF ymdc'vely but cautiously and in perfect
sooH is'hi and so think they were intended TO be
49,. .s Notwithstanding the uuseemly vituperaiion
e as' nas called forth see in IT, from beginning 70
ehu' u s true, evidence of an ,n,ous desin, IN so
;d;.; uo cno IN view; but think see in IT, also,
.S =. S4ssssiy unequivocd of a desire no less