Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1856-01-04


This would have been an infringe
ment OF Besbe's "unaiiienabie rights. .
Against such spoliation of his prop
erty without offence. trial, or notice,
the courts would be bonnd TO afford
him prompt protection; but not against
the operation of municipal law en-
. acted in conformity To the copstitu-
ton.
Closely connected in the argu.
ment, with unalienable rights. are the
limitations of legislative power outside
fthe constitution. The relevancy oil
the inquiry is not readily appreciated.
II involves many curious questions
lying all along the exterior bounda-
~ Of the rights and duties Of rulers
and people in extreme cases. 1t will
be pardonable to decline speculations.
Extreme cases seldom prove any
thing satisfactory. We will, there
fore. con6ne ourselves to the facts as
we find them in the constitution and
law; and our judicial duty in the
premises.
/ The tendency Of courts is. or at
least. should be. anything but reyolu.
tionary. What rights and what leg
islatiye checks outside Of the consIi-
tuition and not delegated BY the peo-
Iple u their public servants may cx-
list, we are not careful to inquire
They can seldom, IL ever, become a
basis or rule of decision. Perhaps
these inquiries might not be out OF
place in a popular assembly. But at
This late day, in a government like
ours, with distributive and well defn.
| ed powers and duties. the settlement
of these abstruse questions does not
seem to be the chief debt we owe the
public.
II is enough for us to know that
whatever these extreme rights are
their protection does not fall exclus
lively within our jurisdiction. With
the righ-s themselves, the people have
also prudently retained in our own
hands the means Of redress. They
are ever ready to vindicate them at
the ballot box or by revolution, as the
case may require. Among our peo-
pie revolution has attained perfection.
The evils or errors which afflict the
body polite are intelligently investi-
gated and traced to their source
The remedy is simple and effectual-
A constitutional convention of emf
nent citizens is the substitute for the
armed mob of other countries. If the
powers hitherto delegated are too
great. consistently with the private
rights of the citizen. they are quietly
abridged. II insufficient to afford
protection they are enlarged and
moulded to meet the circumstances; SO
that revolution should begin with the
people and not with the courts
Any other revolution cannot readily
be distinguished from subversion.
The system we have adopted is
marked for simplicity. The Judiciary
and all the other departments live and
move and have their official being and
sphere Of action in the constitution =
Art. 8. Sec. |. The duty Of the
Courts is chiefly expository. When
the constitution and laws come up for
adjudication, both must be regarded
as the work Of the same hands: both
are ofthe people; both must be re-
spected unless they conflict. Ind 1,
342, and the authorities there cited. =
In case Of conflict. the temporary will,
contained in the law must yield to the
paramount will contained in the con-
sttution.
For The Courts 10 declare law
void on any other ground; to set it
aside because il is impolitic or mex
pedient, or even like the liquor law,
odious and oppressive in some of its
features, looks like assuming TO
protect the people against themselves
Against this position there is not a
single case in our own reports; but
many in coincidence with it. Thus
what law should embrace. involves
questions Of policy more properly leg.
islatve than judicial.
On the other side the learning and
diligence OF counsel have failed TO
produce standard authority or Civ
en- any decided case, in which courts
have assumed to declare statute
which did not conflict with the institu-
ton, void, because to the judicial
mind. it appeared to be against pub
lie policy or private right.
This court has. therefore. no du-
ties outside Of the constitution; and
surely none Of a legislative character
conflicting with the express letter of
that instrument. Courts are not to
array their own reason against that Of
the Legislature; Smith Com; 987. We
cannot declare an act void because il
conflicts with our opinion of policy.
expediency orjustice.
5Ih. The history and legislative or
the times. particularly what was the
state OF the question NJ the adoption
of the constitution may be Of some i'm
portance.
II may be promised that most Of the
colonies. Virginia as early as March.
1860, enacted laws "to prevent disor-
ders and iiots where drink was retail
Sd" Since the Revolution il is believ
ed every State in the confederacy has
passed laws more or less stringent 10
relation to the retail Of spirituous liq
uors. At the present moment the lIq
uor traffic. its evil and remedies, Is
very warmly agitated in many of the
States.
The history Of the territorial and
State Legislation Of Indiana shows that
she has long ago held a stern hand
over that traffic Every revision OF
her statutes and almost every session
of the general assembly. establishes
a settled policy in that respect II
would be cumbrous to make quotations
{ and references in point.
1t need only be suggested to those "a
miliar with the history Of Legislation
) that she has long ago adopted quail.
a =