The Richmond Indiana palladium. [volume] (Richmond, Ind.) 1854-1855, 1855-11-22
HERMAN ps. THE STATE.
OPINION OF THE JUDGE.
Concluded from last Week.

Concluded from last Week.
But the legislature cannot declare the path
from my house 20 my barn nor any obssruc-
ion may place IN it. s'nuisance. and order
il discontinued: nor can it declare my store
room and stock Of goods a nuisance, prohibit
my selling them, and order them destroyed,
because such acts would invade private prop
erty which the constitution protects. Still the
fact may be that the path and store room are
nusauces which have no right to maintain;
ioS wlGa have the right to use my own
property, still | must not SO use 1t TO ln]ure
others. So, all trades, practices and proper
y, may, BY the manner. time, or place Of use,
become nuisances in fact. in quality and sub
leet consequently TO forfeiture and abate-
nsnt for example, slaughter houses in cities,
or some description of retailing houses; and
this the legislature may have enquired into,
and if the fact Of nuisance be found. to have
the forfeiture and abatement adjudged and ex-
scuied. And il is the province of the ludicia-
y to conduct the enquiry, and declare the
fset, or deny it, as the truth may turn out to
be. Many things, by such proceedings. have
already bscams established nuisances At COM
mon law. By this mode. when party looses
his trade or property. he does so because Of
bis own fault. and this according to the judg-
men. of his peers. and the provision of the
general law of the land, and not by the tyran-
ny OF the legislature whose enactment may
not be the law Of the land. See numerous
cases collected on this point in the first chap
ter Of Blackwell on Tax Title.
In accordance with this doctrine we find
that the criminal code of this State has ever
contained the general provision that any per.
son who erected or maintained a nuisance
should be fined. DC. and that the nuisance
might be abated; r. S. ?. ?. 428, 42o, Secs.
9 and "a provision that submits it to the
country, to wit. a jury under the charge of
the Court to decide tie fact Of nusance-
This provision the courts have been daily en-
forcing against various noxious subjects; and
orewerles and casks Of liquor are nuisan-
ce'. why have not they been prosecuted and
sSa'ed also? What was the need OF this spe-
cisl law upou the subject? We have assumed
thus lar. apon this branch of the case, that
'he constitution protects private property and
pursuits. and the use of private property By
me WAY Of beverage as well as medicine. Ii!
may be necessary, at this day, to demonstrate
the fact
The Erst 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 the pursuit of hap
pihess Under ouT constitution, then. We all
nave some natural rights thas have not been
safFendered, and which government cxnnot
uepFise Us OF, unless We shall first forfeit
Aem by cur crimes; and 70 secure TO us the
enloEnent OF these rights is the great end and
a'a OF the constitution itself
Il thus appears conceded that rights exis-
'si anterior 10 the constitution--that we did
nofderive them from it. but established i. 10 Sc
cure to Us the enjoyment of them; and it here
becomes important 10 ascertain with some de-
gree OF precision what these rights, natural
rights. are.
Chancellor Kent, following Blackstone c. SAYS:
soi. 2, p |. "The absolute or nstursl1 right.
ot individuals may be resolved into the right
o. Personal security. the right of personal lib
ef'y' and the right to seq uire and enjoy prop
e'y; net some property, or any kind of prop
cry, but, at least, whatsoever the society, or.
saarnS government, recognizes ss property.
now n-uch does this right embrace, how far
aossa extend? Il undoubtedly extends TO the
sn' OF pursuing the trades of manufacturing.
;u!thg and selling; and TO the practice Of US
These acts are but means Of acquiring
ahd enjoying. and are absolutely necessary
incidental to them. What, we may ask,
ne right Of property worth. s:ript Of the
.Isn' OF producing and using9 The right
~ ~ property is squally invaded by obssructing
iFes employment of the means of produe
uea; Is by violently depriving the proprietor
"a We product of his land Says Pol. Econ