The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-08
THE PRonIBITuRY LIQUOR Law.
rTrIal or the First Violation Of the New Law
-Areument OF counsel.
MARINE COURT.

urial of the First Violation Of the New Law
-Areum-nt or counsel.
MARINE coURT.
Before Hon, Judge Birdsal.
JULy 7.--In the Case of the People, on Complaint
of Henry Hill, ~. Charles T.. Sn,ith.--This case
was resumed yestert sy morning, pursuant to sd-
iournment. Col. Seaver appearing for the prosecu
tion, and Mr.. Il. Morris n for the defence.
The Judge said he would prefer to have the case
argued before the Court Of ssssions, although he
was willing to hear it, II the counsel for the defence
was urgent 70 argue II bsrore him.
Mr.. Morrison desired to argue In this court;
and TIE Judge having complied, he proceeded with
lis augment, as folio vs:--
Thefyst point, ssid he, which 1 desire to pre-
sent TO your Honor il, that. the fourth sec
shs defendant guilty of misdemesnor, is
void, By reason Of Its nncoDttitu onaiity; there
fcie, he continued, there IL no ofsnce created
by the act for which the defendant can be held;
fberefore the proceas issued under the section is
void the proceedings are void, and the juat q has
no jurisdiction In the matter to proceed, and the
defendant must be discharged. Section pro
vfdeB -
eithsr Of the preceding sections shall upon conviction be
adju6ged guilty Of misdemeanor and except for fail
to file his return make his entries in the last
section prov ded sha forfeit ali the liquor kept by him
In violation OF either Of the preceding sections and be
punlAn6d 06 fOuOW6, &c
Now, the Issue before the jury is or may be:-Has
rhe defendant sold? Has 70 kept for sale ? Has he
given away? Has he given it away except as .
physician? Has he kept it for ornamental purpo-
ses and any other Of thu violations prohibited. The
alone adverse to the defendant. The judgment Of
We Court for the forieitures provided In the 4th
section s not authorised by the issue; the jury has
not passed upon the question whether the liquor
kept by the defendant was in violation of either OF
the provisions Of the prcr sections Of the law and
therefore the uDcorsstutionallry Of the section is
manifest, as the forfeiture violates the following
clauses Of the provisions Of the constitution Of the
State OF New York -
Article l. Section /. No member of this state shau
be dsfranchssd be deprived Q, any Of the rights
privileges secured to citizen thereof unless BY the
law Of the land or the Judgment OF his peers.
The right to his property. perhaps to the amount
Of thousands Of dolsrs. s thus dispossd Of without
trial or judgment OF the peers, for they the jury
have not been Charge with the question whether
the defendant sold, sc. Article l., section q pro-
vides =
The trial by jury in all cases where it has been here
tofore used, ihan remain nvlolats forever.
In case of forfeitures the trial by jury has bee
heretofore used; in this case it has not been pro-
vided for, but the contrary been abolished. Art
J., section 6, pr0vides:-
In any trial in any Court whatever the party accused
shall be allowed to appear and defend in person and with
counsel, as in civil actions.
Now, In such case of forfeiture as this, he, the
defendant, has not been allowed to appear aud de-
tend; be has never had Trial on the question In.
'volved in the Judgment Of the Court. He has not
been heard in accusation or defence, whether he,
the defendant has kept sne liquor adudged forfeited
in violation OF the law. Art. l., section s, pro-
vides:-
That unusual punishments shall not be inflicted.
Now, If by that Law the forfeiture could pass the
ScyIla and Charyb5s Of ths conssitu ion to such
buccaneer of the law as this attempted forfeiture
the last section of the constitution the intend
ied section Of the law tor It is Gan unusuai punish
ment.p II violates the provision Of the constitution
in Art. l., section g. which provides, no person
shall be deprived Of life, liberty or property, with
out due process OF law. Due process Of law means
Indictment or pfesentment BY grand jury. Lord
Coke, 2, 45 and 80, Gsylor vs.. Porter. w.,
Ii and note. Thus the section Of the law under
which the offence with which the defendant Is
charged being unconstitutional, all proceedings
under 1t are void and there is Ia y to give the
magistrate jufisdi :ti0n. An unconstitutional law
afford no just hcauon to any officer acting uu.
der il. strom vs. Hammond 3 Mclean, lO7. can
order made by Justice Of the Peace concsrn.
ing matter not within his Jurisdiction. Is void.
and be and all minis teria officers VINO execute the
order are trespasseis." Wise vs. Wiihers, Crnnch
33l. Comp. 140, and $50. 5 NJ. and s., 3l4,
II G. on R. 957 Wend 200. II has long been settled,
Martin vs.. Marshall, Hob. 63, that the msgistrae
must not only have Jurisdiction OF the subject
matter, but OF the process; and il the law confer
ring jurisdiction Is faulty, defective as respects the
WniCu IL the OF the
The jurisdiction does not exist. Gfundsr w. Ray.
mond ct al, Carr r. lao.
My second point is, that the words "ths section
shall not apply to liquor the right to sell which in
ted States In section first Of the act entitled an
&C. for the prevention of ntemDer ance, pauperisn
and crime" passed April Q, 1856, except imported
liquor, from the operation Of the act Ths right to
sell Is connected with the law permitting imp orta-
ton, and ss an inseparabe incident is inevitable.
Per Chief Justice Marshall. Decision Of the Supreme
Court OF the United Stites. Brown and others Vi.
Maryland IL Wheaton R. 4l9. Liquor TINS hav.
iIg paid duty under the revenue law o. tbs United
States the right 10 sell it is It's inevitable incident
AID 1t Ia therefore liquor IN the very language Of the
section OF the law under consideration the right to
sell which In this State 1t Ia given by the law Of the
United States, to wit: the law which permits its i'm
postatien.- Tariff act Of 1s46. BY observing the
letter OF the statute there cannot be any question
as to the intent and operation Of the exception,
and the letter must govern for the following rea-
scns:- lst u Is penal ssatuts. Penal statutes
receive strict Interpretation. The general words
OF penal statute shall be restrained for the benefit
of him against whom the penalty is implied. Thus
The statute of +. c. IL having enacted tina. those
who were convicted OF having stolen horses should
not have the benefit of clergy, the judges all con.
CURED that this did net extend to MIN that should
steal but one horse, and therefore procured Q new
act Tor that purpose the following year--D gsrris
on statutes, page 6S. penal law shall not be ex-
tended by construction OF the Law o! England does
not allow q constructive offences or OF arbitrary
&C. which subjects him to 1t is clearly both within
the spirit aad letter Of the statute imposing
such penalty. II such rules are violated.
said Best G. J. In the case Of Fletcher We. L,rd
Bomes, 3 Bingham $50. the fate Of accused
persons Ia decided by the arbitrary discretion Of the
Judges snd not by the express authority OF the law
-DwMris3n Statutes, p. 60. In all cases Of special
and limited authority, especially whsre Il is penal
in Its character, ard 70 be exercised ia derozaton
of the conmon law, great stictness aad jealousy
ought to be exercised, not only In cor Lstrung the
law, but In canvsssing its proceedings. Lord Chief
justice Holt, IN Rex ys. Whistler, Holt 2l5, with
great propriety remarks that anybody knows tina.
This being penal law, ought, by equity and reason,
TO be construed according to the letter aud no fur
fSer- Psrktrs Criminal Reports, lst vol. 10i. A
Per 6usherlsnds Strong Va. 5tebbins, s Co1en.
5l2. The law win not extend penal statnte by
equitable constxuction.-Per Savage, ca. j., Root
VS.. King, Cowep, $50. Where r. g., D. 2l2,
made II penal for person TO keep q horse for
Tracing And the defendant ns,nni,4aa NJ. -. a.