New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-09-06
JUDGE srRONG's FIve-GALLON CONSTR
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With the opinion of Judge Strong We have
the complete judgment Of the Supreme Court
of the Fret District upon the Prohibitery Law
his co leagues MessTS Brown and Rockwell
having previously given theirs to the world.
We have carefully com pared these three OPin-
ions to ascertain the points in which which they
sgree and the principles which their Judgment.
while unreversed, may be deemed to establish.
The result of that comparison We shall now
state, and We predict that it will astdnish more
than it can edfy.
The Judges agree in only one point, which is,
that the act does not permit the sale OF imported
liquor except in the original package of imports-
ton Considering their disagreement in so many
particulars, and the general hostility to the law
which they have manifested, their concurring
opinions as to the extent of the prohibition must
be deemed very high and conclusive authority on
that point And it eifectualy explodes the rash
opinions of the Liquor Society lawyers, the OH
cial opinions of Messrs Dillon and Hall, and that
marvel of Court-of-SessOns grandiloquence, tho
opinion of Mr.. Recorder Smith
Two of the Judges agree, against the express
of the Act violates that provision Of the coosti-
tuition which declares that ono member Of this
q" State shall be deprived Of any Of the rights
"or privileges secured to any citizen thereof.
"unless by the law of the land, or toe judg-
"ment Of bis peers" The reasoning of the
opinions is that liquor is property; that its value
is destroyed by the restraints imposed upon it's
a.. Jaat All ia mt
by the law of the land or the Judgment Of
Jury, but by mere act Of con6scstion.
At this point Judge Brown goes out OF court
He has no opinion :; az least he expresses none, on
the other points considered by his brethren. And
from this point the two remaining Judges proceed
in opposite directions, not to meet again till they
reach the opposite side of the globe Judge Rock
well sustains the lao throughout, hut he unites in
in a reversal of the judgment on the single ground
that the defendant was entitled to be admitted to
bail, and passed over to the General Sessions tn
axe his chance of indictment and trial there.
Judge Strong, on the contrary, holds that tho de-
PENDANT was not entitled to be- bailed and passed
over TO the General Sessions and that tho decision
of the Justice on that point was right. Judge
Rockwell holds that the Act gives the right 10 bail
and is constitutional; Judge Strong holds that
the Act does not give the right to bail, and is
constitutional.
Here Judge Rockwell goes out Of court, and
Mr.. Justice Strong is sotus. Judge Strong then
holds that the complaint was defective, aud that
the case should have been dismissed by tho JUS
tice on that ground. Here the learned Judge
has not the concurrence of either of his breth-
rem 1t will thus be seen that bare majority
Of the court could be obtained against the law
on only q single point-snd that the case is not
authority against the law anywhere, except as
to that point
Two points in Judge StroDgs opinion require
some notice. The learned Judge held the conS
plant in this case 10 be radically defective"
We have taken the pains to procure sight OF the
complaint. 1t alleges in terms the sale OF one glass
- of brandy" in violation Of the act. The rad
col defect imputed by the learned Judge is that
the liquor sold was not alleged not to be with
in the exception of the first section that
is, not imported liquor in the original pack
age. The pie answer to this piece ofjudiciai
astuteness is that II IS so alleged. And the point
is as clear 20 upprofessioEal as TO professional
readers. The Court takes judicial notice OF tho
law Of the land, and an Act OF Congress is the
law of the land. On the face Of the Act Of
Congress the Court sees that brandy cannot DO
imported in packages containing less than fifteen
gallons. When tie prosecutor under the act
came into Court and made oath that the defend
ant had sold lone GLASS; OF brandy the Court
saw, and the defendant saw, that the charge
was that the defendant has sold less than tho
original package Of importatioa.-less than The
fifteen gallons which may lawfully be sold IN
der the exceptitn snd the act Of Congress. Tho
Court saw this, unless Judge Strong means to
say that the complaint leaves i. in doubt wheth-
or the zone glass of brandy" was not tJfeeH
gallon tHr'bisr AID h, original package " 1"'eA
nc brandy xas imported
But the learned Judge is equally luminous on
the Constitution. lie says that under the valid
old Excise law, an owner Of brandy could not
sell in a less quantity than i've gallons, unless
licensed. lie admits that only the privileged
few were licensed, and that the owner whose
power TO sell his property was thus intertered
with. was not protected from such interference
BY tho Constitution. IL WAS Constltationh 70
s,er the owner from selling less than i've gal
LOAF, but ustitutional 10 prevent his
selling less than hfteen gallons. 1t is
q a,o Gallon Constitution but not .
ai,ecn gallon ono Why oh. because poor
man can buy ave salloas easier than hiteen-sod
~ DC susss, " % AsSrsSs,e VIII 'cQ uss Ave