New-York daily tribune., 1856-03-28
ANARCHY ON THE BENCH.

| Appeals In the case OF lR 5eOPe hgt. J3HtS w.
Hpnhommer, as delivered by Judge COmstock and
printed in our yesterdays paper, can hardly be
read by any friend of law and good order without
! very mingled emotions. We have seen and known
too much of mankind to be easily astOnished at
any folly or at any weakness yet we must confess
some little astonishment to find emanating from
such body as the Court of Appeals of this State
ought to be- decision which may justly be
described, in the words Of Judge johnson, one of
the dssentients from it, as "striking at the very
foundation of Government.
The Constitution of New-York, as of most or
all of the other States of the Union contains pro-
visions, derived in substance from Magma Charta,
and the English Bill of Rights, that "nO member
'of this State shall be disfranchised, or deprived
"of any of the rights and privileges secured TO
"any citizen thereof unless by the law of the
Gland or thejudgement of his peers" and further,
that "no person shall be deprived of life liberty or
"property, without due process of law nor shall
"prvate property be taken for public use without
compensation" These provisions were evidently
intended as both their terms and their history show
to prevent arbitrary imprisOnments and executions
without trial. or the seizure of the property of in
diyiduals by executive judicial proceedings (of
which there have been many instances in English
history }, unsupported by the common law or by
legislative enactments. Yet they are strangly
wrested by majority of the Court of Appeals to
take away from the Legislature Of New-fork any
authority to repress the sale under circumstances
calculated in the judgment of the Legislature to
promote intemperance, pauperism and crime, OF
liquor, by providing as the Act of last Winter
does that no liquors shall be kept for the purpose
of such prohibited sales aud that if so kept. they
shall be liable, under certain process provided for
in the act, to seizure aud confscation.
The way in which the Court attempt to
reach tteir conclusion is this They insist in the
first place that under these provisions of the Con-
stituton, property Of every kind and character
is equally protected, and that the Legislature,
whatever opinion it may form as to the dangerous
and pernicious results of certain uses to which a
particular kind of property may be put have
nevertheless 10 right TO punish those who persist
in such pernicOus uses OF it, BY sezing and cOnfs-
eating their property-nor even TO destroy the
value of that property, by an absolute prohibition
Of its sale for such peruicious uses. To quote the
very words Of the Court, THAT which belongs to
the citizen in the sense of property and as such
"hss to him q commercial value, cannot be pro-
"nounced worthless or Pernicious, and so de-
st1oyed or deprived Of its essential attributes"
In the second place, the Court struggled very
ksrd TO show that the essential attribute of prop
erty il the right TO eel il. This however with all
due submission 70 the Court, seems to Us to be
taking rather pedlAr-like view Of the question
Ii seems TO US that the rgh: personally to use and
enjoy s that in which the essense Of property con-
sisss. Does 3 mans property in the coat on his
back or in the dinner be is eating consist primarily
and essentially il lis night 70 sell il ; l. house
or farm, or . horse and carriage, or the bed on
which man sleeps. his property only because he
has the night TO eel il Do our laws which take
away from minors, married women, lunatics and
idiots the right 10 eel. thereby srip taem Of their
property and are th0se laws violation of the
Constitution
We have heard indeed o. so-ss articles, such for
instance ss rzIorz q esri&1s description made to
sell. and of veIy E-sls Iss - - owner for any
other pu-V1se- I--,Iless-ig A;te,s We are free
to eooisss- II! a. uI6s~ ciaus osseEg-y. Ofthose
| NLo ROD Len = lHiosssssln tlt T.sa'Sr number
do il fer tie ETass " selisq sa,'r "a. Of using:
but We very E-et 10uis ~'iiesy-f ss y tie ,pecies
of propert! whist ~ trr.,cs u a. Constitution
were An1iOU. 70 6ef--H. taG paseher il ever en-.
tered into their h-s6I uli - sssnee OF the rigbt
Of property whiek IT, ~ elrsfsly guarded by
Constitutional proyi.i0.. eo.-s:9 ngt in the right
TO Keep and to Use. bit Of s.i-z q in the ysy Of
trade that which Vas Gele.s Q, GsIeterou, into the
hands Of others. Tbs j. Wv 0f the night of
property likely enough 10 b keh in grog shop
1t w1uld not surprise Is 70 kroT that the mock.
suciionetrs Of this city WLo keep sssortments Of
bo.ss watches sn3 oiker Ike Article. made or Dur.
pose tc SCI. entertain mniiar view. OF that il
which proPsr1y eOasists- Bat 70 lear H.is rogues
snd sxi,Sler's 6oc-Eire euUnrE;ed from the high
esi ooCri OF law IL tke Sat s, We must coafess,
| liir.e starting
B.i eFen zrsati1g tkai tLs p9..;isa. on sich
tn Co1rt sYe.1s 20 DEea pAsEs. = TIE true one
IT,: ;he esse.se o. property COASTS z he rig 20