Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-24

49, 1870 W. AAnAN "a lAtENAA- 10 HtA@0LE
them, which, IN all free governments, must OF
necessity be protected from legislative inter
ference, irrespective Of constitutional checks
and guards" The iuviolability of property
carries with it as an incident, The right of gen
eral traffic. Ch. Jus. fancy, in delivering
the opinion Of tho Supreme Court of the l..
). in the License Cases" 9th Howard 011,
thus expresses the whole doctrine: "But spir-
its and distilled liquors are universally adj
mitted to be subjects of ownership and prop
erty, and are therefore subjects of exchange,
barter, and traffic like any other commodity
where the right of property exists" The
able opinion Of Judge Perkins in the case Of
Herman IS. The State, on Habeas corpus and
the authorities cited by him are peTtinentin
calculation Of this position.
Tee right of traffic and the right of prop
/ erty are placed in corelative position in the
act Of 1855 under examination. BY the sec
tons 18th to 22d inclusive, the property in
tended for general Traffic is subjected to con-
hscation as n nuisance, and by sections 10th
and 18th, the persons guilty of that traffic are
subjected 10 heavy penalties. The former
in Pari Hlateria have been declared by our
Supreme Court unconstitutional and the lat
ter, their corelative, are subject to the same
objections.
The basis of prohibition, affecting the in
volatility Of property, must be sustained or
%OVerthrown. The legislature can declare ar
article recognized as lawful property for
1000 years = nuisance, and destroy it with
the traffic in il, or they cannot. The charac-
teristic feature Of prohibition 10 this act must
at some period be determined, and the pres
sure Of the present cases induced me 10 meet
its full force as unsound and unconstitutional.
Admitting, however, that the act was within
Legislative power, the win Of the Legislature
IS no longer expressed in the disjointed MEM
bers Of this statute. The opinion Of the
Judge of eur Circuit Court in the IN after of
Sebastian upon Habeas corpus, Is pertinen:
upon this point. "Tho provisions of the
Temperance Law declared unconstitutional
By the Judges essentially modified the
others; to enforce the latter alone would be
introducing what tho Legislature rover de-
vised-it would be establishing a law which
never, in its present shape, received the sane
ton Of the Legislature, either expressly orby
necessary or reasonable implication" The
arguments at bar in these cases have also pre-
sented this objection with great force.
The precedents claimed for this prohibito-
~ legislation in prohibitions upon the sales
to minors, inebriates, or Indians, appear to
me the deductions of uusound logic. All
civilized States have subjected minors to tu-
telage and restrictions, intoxicated persons 10
penalties, ndiau and Africans to prohibi-
tons not imposed upon white freemen. The
right OF property in the Indian is not invio-
late. He can neither dispose of his lands
nor of his right of occupancy to individuals
without the consent Of the government or OF
some OF it's officers. The general traffic of
the minor is not authorized, and the intoxi
Gated already exhibit that abuse of an article
Of lawful property which all our previous
legislation was intended to restrain, prevent,
and punish.
The investigations Of Professor Liebig. a
learned chemist, exhibit the deleterious in
huence Of Alcohol upon the animal fibre oil
the American Indian. The cause assigned
by him is the use OF flesh for food, or carni-
vorous habits Of life.-Liebig's An. Chem
p. IS.
If the results are correctly presented by
him, the recognized t~utelage of the Indian
race requires the safeguard of prohibition
against the use of intoxicating liquors. The
{ American Indians have been subjected to the
guardianship of the white race from the
I" repartiementos" of Ferdinand and Isabel.
la, of Spain, in the 10Th century, through
!. the British and colonial legislation of North
America, until our own State and Federal
governments, from the days of Washington
, have exercised and applied the same guardi
!, anship to the prohibition of spirituous liquors
with the sanction of the Courts and the APP.
provl Of public opinion. | cannot deem
, this legislation to authorize the application o.
the principle of prohibition of the right Of
property or traffic in intoxicating liquors tc
{ the free white citizens of Indiana.
The prohibition against the traffic, there
fore, in the act of 1856, " in pari materia,'
with the prohibition against the possession o
the property for traffic therein. already deci
ded unconstitutional, infringe, in my judg
r ment, upon the LIST, 18th, aud 2lst sections
t of the Bill of Rights in our STATE constitu
: ton, as invading the inviolability of proper
: ty. Cessantc ~rctione, eessat ier. They mus
| fall together.
The penalties are excessive. The prohi
/ bition of a traffic heretofore deemed lega
Q "a nahum prohibitHm," and not a NAHUM Il
:e")i is enforced by a heavy fine for the frs
d act of traffic, and by imprisonment in add
e ton, for each succeeding act. In the class o
q misdemeanors in our penal code, few, how
ever, fragrant Offences against the moral law
: are punished BY peremptory imprisonment
c imprisonment, where authorized, is lett dis
cretionary with tho jury or triers Of the fact
:. who can examine the character and enormit,
: Of the particular ofense.
s The penalties in this act seem beyond tn
scope Of our mild penal code, and justly OBJ
: jectionable under the 10th and 18th section
Of our Bill of Rights. The traffic of thi
{ property is condemned as disseminating poi
son. The authority for prohibition and de
clsring 1t a nuisance, Is claimed upon this ba
: sis.
y 1t has constituted, as wines and beer, tn
principal beverage of the great majority Q
q the civilized world, and has never there bee
so considered. A large portion of our ow
v fellow citizens deny this doctrine. The ties
upon this point is most satisfactorily deter
mined by scientific examination. The exam
nations made by Prof. Liebig, and other EN-
e inent chemists and physicians, have ~resuiter
in the doctrine that the moderate use of tbi
article Of property tends to check decay i
d the animal system of the white race, or tios
IS accustomed in part, or altogether, to vegeta
bic food, and to restore from exhaustion th
IF decaying powers of the human frame. Lie
d big's An. Chem, p. SO, Il. Examinations an,
v experiments reported during the last tw
years py Illogical JOuInaIs OF the nlSnc0t au
b thority, declare the result that the proper US
Of alcoholic or intoxicating liquors, tends I
preserve and not to destroy human life.-
b" There are then" SAYS the British and Fol
u eign Meiico-C hirurgieal Review for October
1854, p. 404, "to I've found in alcohol, rea
uses /; it is adefence against the evils of dc
~fective nutrition dependent upon either SO
n cial or pathological causes, as well as a de
fence against the wear of the body by tia
: immortal part which is the end of our being
l. And, in mixed alcoholic drinks, we have pre-
d presented to us modes of modifying thes
q defences so as TO suit each particular CASE
y whether national or individual. Surely, Their
i that is truer philanthropy which turns it
1t attention to increasing the variety and guam
THY of wholesome fermented liquors, tina
! that which, by precept or example. endeay
ors TO deter men from them altogether" Sc