Marshall County Democrat. (Plymouth, Ind.) 1855-1859, 1855-11-15

the dictates ofone' own conscienceSthough
perhaps Massachusetts, in the days of 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 Bcrkly wrote from
that colony: 81 thank God there are no free
schools nor printing; aud hope we shall
not nave these hundred years .for learlin.
has brought disabcdience and heres ppa
sccts into the world. and printing has e
vulged them. and libels against thc1be!
government. God keep us from both -
1t cannot 50 declare the holding of political
meetings and making speeches, the bearing
of arms, publishing of newspapers. &c,
dc. however, injurious to the public the
legislature might deem such practice to be
and why? Because the constitution for
bids such declaration and punishment, and
permits the people to use these practices.
So with property; the legislature cannot in
terfere 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 per-
mits; and cannot take from the citizen that
which the constitution says he shall have
and enjoy. If i. can, then we think all will
admit that the constitution is worthless, the
liberties of the people dream, and our
government as despotic rs any on earth
And we may here remark that the legis-
laturc can add nothing to its power over
things by declaring them nuisances. A
public nuisance is that which is noxious, of
fensivc to al the people who NAV come in
contact with it: and the offensive quality is
i'll the thing itself, or the particular man
ner of Its Use, and Is neither increased mol
diminished by a legislative declaration
What the Legislature has a right by the con
s,i.u,ion To prohibit and punish, even to the
forfeiture of property, it may thus deal with
without first declaring the mattera nuisance;
and wha:evet it has not right by the con.
stitulion to prohibit and punish, it can not
thus deal with even though it first fix up
OH 1t that odious name. To illustrate: the
legislature has power. perhaps unlimited
over the public highways. 1t provides fol
opening, repairing, and vacaiing them
They are not the private property of the
citizen. The Legislature. therefore, NAV
declare what shall be- permitted. and what
removed, whether they be, in fact. nui-
sanccs or not So with Congress, in rela-
ton to the national highways for commerce.
These are public for purposes Of naviga-
ton. and are perhaps. completely under
ihc legislative power. 80 the legislature,
when the practice was To license houses
for the exclusive retail of spirituous liquors,
that l., the sale Of them in particular guam
titles ut particular places, could impose
conditions upon which the lisencc should
be granted, and could make the violation
of the conditions cause IF forfeiture wheth
or it was such as rendered the retailing
house a nuisance or not, and whether it was
- denominatcd or not.
But the legislature canno. declare the
path from my house 10 my barn nor any
obstruction may place in j: a nuisance,
and order il discontinued; nor can it de-
clare my store room and stock of goods a
nuisance. prohibit my selling them, and
order them destroyed. because such acts
would invade private property which the
constitution protects. Still tn. fact may be
! that the path and the store room are nui-
: sances which | have no right TO maintain:
for while | have the right to use my own
property, sill ! must not use it TO iniure
others. So all trades practices, and prop
crty, may, by the manner, time, or place
of use, become nuisanccs in fact. in quality,
and subject, consequently, 10 forfeiture and
abatement for example, slaughter houses
in cities, or some descriptions of retailing
houses and this the legislature NAV have
cnquircd into, and. if the fact of nuisance
be- found, 10 have the forfeiture and abate-
mcnt adjudged and executed And it is
the province Of the judiciary 10 conduct
enquiry. and declare the fact, or deny il, as
by such proceedings, have already become
established nuiSanccs at common law. By
this mode, when a party loses his trade or
property. he does so because Of his own
fault. and this according to the judgment
of his peers, and the provision Of the gen
cral 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 lst Chap
! ter of Blackwell on Tax Titles
In accordance with this ducirin we find
! that the criminal cOue oil this State has
ever contained the general provision that
any person who erected or maintained q
nuisance should BE- fined &c. and tina.
the nuisance might be ubaied K. S. y.
42S f29. Secs S and ga provision that
submits IL TO the county. Ia wit d jur,
under the charge OF the Cont. TO decide
The tate of the nuisance. This provision
the courts have been daily enforcing aga,sl
various noaious subj.c's; and if the brew.
cries and casks Of liquor are nuisance.
why have they not been prosecuted aud
abated also? Wha: was The need Of this
special law upon the subject? We have
assumed thus far upon this branch Of the
case. that the constitution protects pri
vato property aud pursuits. and the use o:
private property by wa, OF beverage rs
well us medicine. /, may be necessary.
al this day. 10 tie monstrate the fact
The first section of the Grst article de
clares, that oil men are endowed by .hcir