Plymouth weekly banner. (Plymouth, Ind.) 1855-1856, 1855-11-15

judgment of a court, &c. Young vs. the
State Bank, 4th Ind Rep. 3O1.-McCor-
mic Lafayette, lst Ind. 40. The State V
Mead, A Blackf 500.
1t does not, therefore, follow that be-
cause the constitution of the United States
does not prohibit State Legislation infring-
ing the natural rights of the citizen, such
legislation is valid. The Constitution of
the United States may not, but that of the
State may, inhibit it.
And so, indeed, according to many emil
nent judges, may principles of natural JUS
tice, independent of all constitutional re-
straint. This doctrine has been asserted
here. In Andrews V. Russell, Blackf,
474, Judge Dewy says: eve have said
that the only provisions in the Federal or
State Constitutions restrictive of the power
of the Legislature, DC" are, &c. There are
certain absolute rights, and the right of
property is among them, which in all free
governments must of necessity be protect
ed from Legislative interference, prospect
i've of constitutional checks and guards.
Should we find however, in the course of
this investigation that the constitution of our
free State does, in fact, sufficiently protect
natural rights from Legislative interference,
as it surely does or it is grievously defect
i've, it will not become necessary for us to
enquire whether in any event, it might be
proper to fall back upon the doctrine above
so unhesitatingly asserted.
Does our constitution, then, prohibit the
passage of such an act as that now being
considered? A dictum is quoted by coun-
sci from the opinion in Beply V. The State,
4 md. Rep. 264, that lit is competent for
the Legislature to declare any practise deem
ed injurious to the public nuisance, and
to punish it accordingly" and hence, it is
reasoned, any property; but dicta, as coun-
sci well know, are not necessarily law; are,
in fact, generly unconsidered first impress
ions which, all legal experience proves, are
thrown out by all judges in giving opin-
, ions as habitually and thoughtlessly as VIC
lation of the constitution are perpetrated by
the Legislature in enacting laws, and inf
nitely more excusably. Scarcely and elab
crate opion is written not containg them
This the profession well understood, anc
hence are not misled by them of erroneous
And it must be manifest to every one
on a moments consideration, that the doc
t trine just quoted cannot be taken for law
and could not have been so intended, in al
unlimited sense, by the learned Judge VIII,
E uttered it. The legislature cannot declar
: any practice it may deem injurious to tn,
public nuisance and punish it according
! ly. 1t cannot so declare the reading Of tn
Bible, though, perhaps the government o
Spain once did. 1t connot so declare tn
practice of worshipping God according t.
the dictates ofone's own conscience, though
d perhaps Massachusetts, in the days of Roge
a Williams, did do it. 1t cannot so declar
the practice of teaching schools, though
!. perhaps Virginia might have done so il
a 1914, when Governor Berkly wrote from
J, that colony: 81 thank God there are no fire
e schools nor printing; and | hope we shall
I not have these hundred years; for learnin!
q has brought disobedience and heresy ant
n sects into the world, and printing has di
vulged them, and libels against the bes
government. God keep us from BOTH
1t cannot SO declare the holding of politica
e meetings and making speeches, the bearin.
OF arms, publishing of newspapers, &c.
de-, however, injurious to the public ia.
Legislature might deem such practice to be
) and why? Because the constitution for
bids such declaration and punishment, an,
: permits the people to use these practices
So with property; the legislature cannot in
: terfere with it further, at all events, thar
|, the constitution permits. In short, tn,
: Legislature cannot forbid and punish tn,
doing Of that which the constitution per
: mits; and cannot take from the citizen tina
which the constitution says he shall hav,
: and enjoy. If it can, then we think all vii
I admit that the constitution is worthless, TIL,
i liberties of the people dream, and on
/. government as despotic as any on earth.
: And we may here remark that the legis
) lature can add nothing to its power owe
things by declaring them nuisances. 4
e public nuisance is that which is noxious, of
fensive to all the people who may come il
: contact with it: and the offensive quality j
t in the thing itself, or the particular man
ner of its use, and is neither increased no
; diminished by a Legislative declaration
: What the Legislature has rightly the con
t stitution to prohibit and punish, evento tn
: forfeiture of property, it may thus deal wit
: without first declaring the matter nuisance
!. and whatevet it has not right by the con
e stitution to prohibit and punish, it can no
Q thus deal with even though it first fix up
on it that odious name. To illustrate: tn
legislature has power, perhaps unlimited
q over the public highways. 1t provides 70
$ opening, repairing, and vacating them
\ They are not the private property of tn
f citizen. The Legislature, therefore, ma,
: declare what shall be permitted, and wha
J. removed, whether they be, in fact, nui
sances or not. So with Congress, in rela
ton to the national highways for commerce
These are public for purposes of naviga
e ton, and are perhaps, completely undo
0 the Legislative power. So the Legislature
: when the practice was to license house
for the exclusive retail of spirituous liquors
t that is, the sale of them in particular guam
e titles at particular places, could impos
: conditions upon which the lisence shoul'
: be granted, and could mSke the violation
: of the conditions cause of forfeiture wheth
a er it was such as rendered the retailin.
] house nuisance or not, and whether it wa