Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-11-15


declare any practice deemed injurious to the
public a nuisance, and 10 punish it accord
ingly;" and hence, it is reasoned, any property
but dicta, as counsel well know, are not neces-
sarily law; are, intact, generally unconsidered
first Impressions which, all legal experience
proves, are thrown ont by all Judges in giving
opinions as habitually and thoughtlessly as
violations Of the constitution are perpetrated
by the legislature in enacting laws, and inf
nitely more excusably. Scarcely an elaborate
opinion is written not containing them. This
the profession well understand, and hence are
not misled by them if erroneous.
And it must be manifest TO every one, on a
moments consideration, that the doctrine just
quoted cannot be taken for law, and could not
have been SO intended, in an unlimited sense, by
the learned Judge who uttered it. The legisla
ture cannot declare any practice it may deem
injurious to the public anuisance and punish it
accordingly. 1t cannot 50 declare the practice of
reading the Bible, though, perhaps the govern
ment of Spain once did. 1t cannot so declare the
practice Of worshipping God according to the
dictates of ones own conscience, though perhaps
Massachusetts in the days u Roger Williams.
did do it. 1t cannot so declare the practice of
teaching schools, though perhaps Virginia
might have done SO in 1914, when Governor
Berkly wrote from that colony: / thank God
there are no free schools nor printing; and |
hope we shall not have these hundred years !;
for learning has brought disobedience and here
sy and sects into the world, and printing has
diyulged them. and libels against the best gov
eminent. God keep us from both 1t cannot
SO declare the holding Of political meetings and
making speeches, the bearing Of arms, publish.
ing of newspapers, &C.. dc, however injurious
To the public the Legislature might deem such
practices to be; and why Because the constr
tution forbids such declaration and punish
ment. and permits the people To use these prac
iices. 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 that
which the constitution permits; and cannot take
I from the citizen that which the constitution
/ SAYS he shall have and enjoy. II it can, then
1 we think all will admit that the constitution
itself is worthless, the liberties Of the people q
dream, and our government as despotic as any
on earth.
And we may here remark that the Legislature
can add nothing to its power over thing by de
claring them nuisances. A public nuisance Is
4 that which is noxious, offensive TO all the PEG
pie who may come i'm contact with it; and TIA,
offensive quality is i'll the thing itself, or the
particular manner of its use, and is neither in
T creased nor diminished by Legislative deela
+ ration. What the legislature has a right by thu
|, constitution to prohibit and punish, even To th'
forfeiture of property, it may thus deal will
without first declaring the matter nuisance
and whatever it has not right by the consti
d tuition TO prohibit and punish, it can not thu
: deal with even though it first fix upon il tina
. odious name. To illustrate: the Legislature Ia
: power, perhaps unlimited, over the public high
/ ways. 1t provides for opening. repairing, an
y yacating them They are not the private proI
erty of the citizen. The Legislature, therefors
r may declare what distractions shall be permit
i ted, and what removed. whether they be, in fac
i nuisances or not. So with Congress, in relatio
a to the national highways for commerce. Thes
;; are public for purposes of navigation, and al
e perhaps. completely under the Legislative pow
er. So the legislature, when the practice wa
e to license houses for the exclusive retail Of sp
e rituous liquors, that is, the sale of them in pa
ticular quantities at particular places, coul
t. impose conditions upon which the licens
e should be granted, and could make the violi
ton of the conditions cause of forfeiture, win
Their it was such as rendered the retailing hous
e anuisance or not, and whether it was so demon
J. mated or not.
But the Legislature cannot declare the pat
ID from my house to my barn nor any obstructi,
10 may place in it, a NUISANCE, and order it iii
y continued; nor can it declare my store roo
v and stock Of goods nuisance, prohibit my Sc
re ing them, and order them destroyed, becau
W such acts would invade private property viii,
ne the constitution protects. Still the fact IN;
n be that the path and the store room are nuisa
re ces which have right to maintain for Will,
A. havethe right to my own property still mu
ps not so use it TO iDjure others. So, all trad
ar practices, and property, may, by the mann'
III time, or place of use, become nuisances in faI
or in quality, and subject, consequently, to forte
OF ture and abatement for example, slaughtt
a. houses i'm cities, or some descriptions ofreta
ing houses; and this the Legislature may ha
i, enquired into, and, if the fact OF Nuisance
IN found may lave the forfeiture and abatement a
a Judged and executed. And it is the proyin
e, of the judiciary to conduct the enquiry, and d
re clare the fact, deny it, rs the TRUTH may tn
is out to be. Many things, by such proceeding
ly have already become established nuisanees
he common law By this mode, when party /,
I'd es his trade or property, he does so because
en- his own fault, and this according to the judg
nd ment of his peers, and the provision of the &c
nd eral law of the land, and not by the tyranny
Ell the legislature whose enactment may not
m the law Of the land See numerous cases collect
re ON this point in the lst Chapter of Blackwell
in Tax Titles.
.e; In accordance with this doctrine we find tn
X the criminal code Of this State has ever contai
IA ed the general provision that any person W
it erected or maintained anulsance should be ii
d. ed. &c. and that the nuisance might be abae
mt II. S. p. d. 426, 1919, Secs. 8 and "a prov
m ion that submits it to the country, to wit in
in under the charge of the Court, To decide [
fact of nuisance. This provision the coul
ne have been daily enforcing against various no
n ious subjects; and if breweries and casks
We liquor are nuisances, why have they not be
lie prosecuted and abated alsof What was I
IL need of this special law upon the subject?
ne have assumed thus far, upon this branch Of
he case that the constitution protects private pro
les ty and pursuits, and the of private proper
be by way of beverage rs well as medicine.
10 may be necessary. at this day, to demonstra
Id the fact. 81 r.l m f...rf
he The first section of the first article declar,
at that all men are endowed by their Creator wi
m certain unalienable rights; that among these a
ia life. liberty aud the pursuit of happiness
on Under our constitution, then, we all have sol
IT. natural rights that have not been surrendere
rs and which government cannot deprive ms
ly unless we shall first forfeit them by our Grim,
We and TO secure TO rs the enjoyment OF the
ne rights is the great end and aim of the constit
D. ton itself.
lit II thus appears conceded that rights exist
Sc anterior to the constitution.-that we did not
e. rive them from it, but established it to secure
lg us the enjoyment Of them; and il here becom
IL important to ascertain with some degree of p.
e. cision what these rights, natural rights, are.
g Chancellor Kent. following Blackstone, say
ut vol. 2, p. l. 1.-THE absolute for natural rights
he individuals may be resolved into the right of D,
n sonal security, the right Of personal liberty, al
v. the right to acquire and enjoy property" n
E. some property, or one kind of property, but,
m least, whatsoever the society, organizing Cover
re ment, recognizes rs property. How much do
this right embrace. how far does it extend
J, undoubtedly extends to the right of parsuil
" the trades Of manufacturing, buying and sellin
Is and to the practice of using. These acts !,
W means of acquiring and enjoying, and are abs
d lutely necessary and incidental to them. Wh5
IS We may ask, Is the right of property wort
N stript of the right of producing and using 2
4, The right of property is equally invaded
s obstructing the free employment Of the mea,
/, production, as by violently depriving the pr
1t prietor of the product of his land" Says Pc
y Economy 1873.
t In Arrow Smith " Burlinger4 Mclean, on
$ 497, it is said: "a freeman may buy and sell
: his pleasure. This right is not of society, b.
I. from nature. He never gave it up. Itwould |
$ amusing to see man hunting through our la
, books for authority to buy sell or make ba
q Oaln' To the Same effect Lori CoEe i'm . InS