Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-03

'heni To purchase rom abroad what they might [
need To eat and drink. IL would involve The 4
Principle of an act To annihilatc the State 10y {
Starving the people constituting il to death.
and such Legislation would hardly comport, we
think, with a constitution established to pro-
mote the welfare and prosperity of the people.
We assume 1t a. established, then, that
the liquor act IN question is absolutely pro-
hibitory of the manufacture, sale, and use as a
beverage, 10y the people OF this State, of whis.
ky, ale, porter and beer. The opinion has been
advanced that the manufacture for sale out of
the state Is not prohibited, but it has not the
substance OF Il shadow; and the morality Of that
law which prohibits the distribution of pauper-
ism and crime, disease and death, m home. but
permits them To he scattered amongst our neigh
bors, Is not To he envied. And we may a. well
remark here ~ anywhere, that IL the n%anufac- /
ture aud sale OF these articles are proper 10 be
carried on in the State for any purpose, it is not
competent for the government Ia take the bust
ness from the people and mouopolise il. The
government cannot turn druggist and become
the sole dealer in medicines in the State. And
why? Because the business was. at and before
the organization at the government, and is prop
erly at all times, Il private pursuit of the people,
as much So As the manufacture and sale of
brooms, tobacco, cloths, aud the dealing in tea
coffee and rice, and the raising OF potatoes; and
the government Was organized Ia protect the
people in such pursuits from the depreciation of
powerful and lawless individuals. the barons of
the middle ages, whom they were too weak TO
resist single handed 10y force; and for the gov
ernment now to seize upon those pursuits Is sub
versiye of the very object for which il was crca-
ted. "a government is guilty of an lnyasicn
upon the faculties OF industry possessed by ia
dividuals when it appropriates 10 itself Il par
ticular branch of industry, the business of eX-
change and brokerage for example; or when II
sells the exclusive privilege ct conducting it,"
Say Political Economy, mole Ia 4. ia
There are undertakings of a public character
such AS the making of public highways, provi-
ding IA uniform currency, &c, that a single in
dividual has not power to accomplish, and
which government must, therefore. prosecute ;
but they are NOT the ordinary pursuits of the
private citizen. These, certainly "a the general
rule. aud We are not now prepared 10 name an
exception. the government cannot engage IA.
: This is all We shall here say upon this point.
| Time and space forbid that we should elaborate
all that arise in the case.
The question now presents itself:
Cd. Could the legislature of this State enact
the prohibi:ory liquor law under consideration
| Few, If any, judicial decisions will be found
, to aid us in investigating this question. as no
e such law, in a country possessed of a judiciary
and constitution limiting he Legislative pow
| or. has, till of late. been enacted. Hence. il has
not often, If Al all, as to this point. passed un-
;, der judicial consideration.
E n hhiDOcf 81 EUROPEAN NitNSIo on udtNIdl
public, and civil law are cited by counsel on
n behalf of the State To show the extent Of legis-
e lative power but those writers, respectable,
ablei and instructive upon some subjects as
they are admitted to be, are not authority here
upon this point. They a'e dangerous; indeed,
utterly blind guides to follow in searching fol
e the land marks of Legislative power in our free
II and limited government for they had in view
when writing, governments as existing when
and where they wrote under which they lived
and had been educated, and which had no writ
n ten constitutions limiting their powers-gov
n ernments, the theory of which was, that they
v were patenal in character-that all power was
in them by divine right, and they. hence, ALSO
lutte; that the people OF a country had no rights
except what the government OF that country
d graciously saw nj to confer upon them. and thai
~ it was it's duty. like as n father towards hi,
children, to command whatever ii deemed ex
pedlent for the public good without first, n
any manner. consulting that public. or recog
niSing IN it, members any individual rights.
Indeed, the discovery of the great doctrine o.
a nights an the people as against the government
had not been made when the writer above re-
N ferred L. lived. Such a government. "a thos,
described, could adopt the maxim quoted b,
to counsel. that the safety Of the people is the SUI
pTeme law aud act upon IL and being sever
ally the sole Judges OF what their safety in th'
~ countries governed respectively required. coulC
a prescribe what the people should eat and drink
L. what political. moral. aud religious creeds the,
M should believe in, and punish heresy by burn
ls ing al the stake. all for the public good. Ever
in Great Britain. esteemed Ia have the most lib
Mt eral constitution on the eastern continent, MAG
ma chdTts - not Of sufficient potency 10 re
strain the action of parliament, as the ludiciar
al do not, as Il settled rule. bring laws To The ties
~ of it's PROVISIONS. Laws are there overthrow
only occasionally by Judicial construction. Snci
o IA thing, indeed, a. deciding a law or royal De
ment, Is unknown. Hence. the oppression %
the people. And, II must be admitted that EFF
forts have not been wanting 10 ingraft upon tn
So government Of this country something of tn
ne same principle. Its, in fact, the general wei
of fare" doctrine under which it was claimed b,
Id latitudinarians that the Congress of the UniteC
ne States could enact alien and sedition laws, ma
tional banks. DC, for the public good. 1t il
~ the same principle upon which some of tn,
= States enacted laws compelling men To attenc
on Sunday Il Protestant Church, and pay Il
support ii. The proposition was laid down il
De them, in regard To religion. as 10y counsel fo
he the State here ia regard To prohibition, that i
Ne was for the pnblic morals. and good of fami
lies. and prevention of crime. that men SHOULD
e observe the ordinances of the gospel and &c
90 cupy seats IN Protestant Churches instead O
" other places. ON the Sabbath, and, hence, tn,
:. State compelled them by law to do SO. But tn,
Sc doctrine has been lraught with oppression, anC
mas not pTouuCeu permanently rOmI>e re
K suits. Limitations have been inserted in con
s~titutions upon the Legislative power To prevent
ne this oppression. And over the people of thi,
State hangs the shield of written constitution.
which are the supreme law, which oar legisla
tors are sworn 10 support, which grant &
restricted Legislative power within which ia,
IN Legislators must limit their action for tn,
public welfare; and whose barriers they can
not overleap under any pretext of supposed
safety oi the people Tor along with our writ
ten constitutions we have a Judiciary, created
by them II Coordinate department of the gov.
eminent, whose duly it is, as the only means o
securing To the people safety from Legislative,
aggression, 10 annul all Legislative action with.
out the pale of those Instruments. This duty
Of the judicial department, ia this country, was
r. demonstrated 10y Chief Justice Marshall I'M
Harburg rs. Madison, I Cranch, l37, and has
e since been recognized as settled American law.
Indeed, II is a great distinguishing feature of a
limited government. The maxim above quoted
II therefore. as applied to legislative power, - here
V without meaning
' Nor does it prove the power of The State L.
5 ~gi-lature to enact the law in question To show
that the Supreme Court of the United States
d has decided that it cannot declare such a State
law imperative, for that court can only declare
VOID such State laws as conflict with the T%eslric.
tons imposed upon State power by the consti-
o tuition of the United States and. il. IN that con
s~tItution, the States are not restrained from
v passing laws IN violation of the natural rights
h of the citizen, the Supreme Court of the United
i States cannot act upon such laws, when pass
j ed, because they 10 not fall within its lurlsdic-
s ton.
But it does not follow. that because the CON
e %stltution of the United States does not prohibit
n State Legislation infringing the natural rights
!, O! the citizen, such Legislation is valid. The
constitution of the United States NAV not. but
p thSt Of The State may. inhibit ".
! And 80. indeed, according 10 many -emi
nent Judges, may principles of natural Justice
t independent of all constitutional restraint
T This doctrine has been asserted here. In
h Andrews os. Russell. : Blackf 41I, Judge
r Dewey says; I'VE have said that the only pre-
3 visions in the federal or State constitution re-.
, %strictiye of the power Of the Legislature" DC.
are, &c. There are certain absolute rights, and
| the right OF properly is among them, which j.
all free governments must of necessity be pro-