The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-11-12

L
plague conhagration, would be biameable but
rather praseworhy but the destruction Of public pro-
perty, under the same circumstances becomes a crime.
Indeed the reasoning OF the shows that the prnc
pie which permits the destruction Of private property
pr~ 6us IN ,ba or Russell rs s waIor VI Of Se
York q DEMO 46il Porter, Senator saysThe preser
walton Of the life Of citizen matter public interest,
and the taking away OF another life under some crcun
Stances and the destruction Of private property probably
under any circumstances would be ustihable when the
saving OF life is in question, IL Of absolute necessity
The taking in each be said to be for the public
so the public have great interest in arresng the de-
| and although the mme date sulerers in the first in
stance few individuals yet the means TO be employed
for aresng the evil are for e public useo Is that the
kind OF reasoning which wod carry the person who de
soyed public property under the same circumstances To
the prison or the galows rather than TO having
done weY In the same Senator Sherman says truly:
"Ihe best elementary wrtc' lay down the principeand
adjadcations upon adudcatons have for centuries
tanned sanctioned and upheld tthat in OF actual
necessity 10 prevent the spreading Of fire. the ravage5
of pestience any other great public calamity, the
private property Of any individual may be lawfully de
soyed or the relief protection safety Of the many
without subi.cting the actors 70 personal responsibility
for the damages which the owners may have sustained
Would man be likely TO infer from such language that
the people had been sun for the destruction Of their
| they would have succeeded better than Mr. Rnssel9
In the Of Stone the Mayor, &c, of New York.
25 Wend l57 the came questions arose, and in the dis
cusson the principle OF necessity stated, though
founded on slightly different grounds. Senator Verpanck
(and will increase the interest, though certainly viii
not detract from the authority Of his opinions when il is
reflected that he is the venerable President OF the corpora
ton OF Commissioners Of Emigration, in whom the title Of
the property in question is yested) There is
also another where the rights Of individuals may be
| justly sacrificed TO the rights Of others. This
| may be seen in cases OF imminent peril when the right
Of sedefence of the protection OF life Of property
horized the sacrifice OF other and less valuable pro-
perty This is natural right arising from inevitable
and pressing necessity, when Of two immediate evils
must be chosen and the less is voluntarily inflicted in
der TO avoid the greater Under such circumstances the
general and natural law Of civilized nations recognized
and ratified by the decisions OF common law,
authorizes the destruction of property by any citizen,
without his being subject any right Of recovery against
him by the owner The agent IN such destruction whether
in protection OF his own rights those Of others which
may be accidentally under MS safeguard, acts from good
| motives and for justiable end, thai from him the
sufferer has no rightfu claim y Thus, those who,
whether magistrates private citizens under the pres
sure of inevitable danger, and TO prevent greater Gala
NIFTY, ind themselves compelled 10 destroy the effects Of
others, not and ought not to be- adjudged respas
sers. The necessity Of the case compels the de-
strueton Of some property more those who
nit this of salutary and wel inenoned violence
exempted from responsibility upon every grOuna Of JUS
tice and Of positive law"
From such reasoning human ingenuity draw the
doctrine that he who, the good motive and JUS
tihabe end does the saluaTy and well ntentoned
violence upon the property Of the State instead Of that OF
individuals, held 10 his responsibility by every principle
justice and positive awY But ii is unnecessary pursue
the discussion further although the doctrines those
just cited will be found n the other ire in l7th 18th
and 10th Of Wendell The doctrine Of guilt for destroy
ing he property OF the public whcn II the property was
private, the act would be bameess has no color in the
statute, in the common law the ttuton, In sound
reason but is refuted by them ALL
Tie emergency then, authorzei the destruction Of the
question, even IL Is bclopgcd To the state.
Was done u such manner as viii Justify the Inference
OF malice, although Gone or good motives and Tor ust
liable endf The inmates were az suffered 70 escape ex-
cept the patients, who unable to do These
carried 10 place Of safety treated with care and although
all recovered except one, whom pr Bisse testified would,
IN his opinion have died the same day without the burn
ing there complaint from thcmthcre j. proof Of
any disguise used, violence threatened BY any Of the
assaian,s. To have employed the OF dcsruc
tou empoy ed In Albany would have been not only
nr ura bt would have exposed the parties all
4 the injection whcn Il was Their purpose 70 avoid. To
have employed guppowdur was done At the great
hi New York. would have occasoned moro danger, aad
could respect have been e1ectnn as are in cx-
perng and Tor the contagon As its
beng in The night time, Il need ony be remarked that the
law imposes no obligation Of dong such an ac o ssn:ary
ami well nantoned violence IN the lay time when IL Is
mbcFcd that the Board of Health Of New York
lfs Mayor aud lomnlonaty who even II they dsapproy
ell u the conduct and reckcssncss which lct acrna
tive, might yet With al the force OF large armed police
have resisted tho just consequence.
Tor these reasons am OF opinion that no crime has
been committed that the act the necessity Of which all
must depore, yet necessity not caused by any act
omission Of those upoD whom imposed, aud that
this summary act OF self protection, Justified by that ne
ccssy and therefore by law esor,cd 10 only after
| every other proper resource was exhausted.
There is also another ground of Iusisratien On the
frat day Of September the Beard Of Health of cascton
adudgcd tho Quarantine buildings to be nuisance, AID
called on the people Of Casteton and the county TO abac
that nuisance without delay Tie to render such
judgment is contained in the power and duty of making
regulations their discretion concerning the suppression
and removal of nusnces and such other regulations
| they shall think proper and necessary for tho public
health" This was in its nature judicial act. The
| Board had jurisdiction Of the subject matter by
| the terms Of the statute, and their Judgment
conclusive The prisoners did the complained Of
| in obedience to this Judgment. On the common prn-
cpic therefore, that person other than party acting
under Judgment Of tribunal having Jurisdiction
the subject matter will be protected the prisoners must
be bca not guilty In Van Wormcr vs.. the Mayor, &C.,
of Albany Qs WENDELL i Was held in action q tesTss
ac'y the language Of the act, that could not be
shown In opposition either that the alleged nuisance did
not exist that the owner Of the property had no orpor
ny 20 be heard before the Board but that the jadg
| ment conclusive against all collateral
view and protection 20 the defendants fsee also
| 2Dcno, 49,
There s yet another ground which the prisoners
should be discharged on the testimony there is think
| no doubt that the Quarantine establishment, situated
where was, necessarily and must always be nuisance
Of the most aggravated character. Eleven physicisns
wero examined the question whether tia, establish
shmcn could b. conducted 10 be safe ~ the people
the adjoining shores of staten Island and long Island
They had all been either with Il lived the
l neghborhood-saw there the nature and operation OF
| yellow fever. Ten of them, including two former
| and the present Health ohicer d the port,
emphatic that IL could not be safe 10 those Ico
pie and only thought could the laws o Quarantine
strictly enforced. This test mony strongly
oboated by the fact thai fever had always appeared on
the outside of the Quarantine walls whenever existed 10
any extent within, that in the years 1873 ani 1880
there upwards of four hundred cases, and about
155 deaths; and that The first o September and for
trne previous the infection the anchorage
ground and IN The hospitals u great quantities and had
ger 10 public health was great and imminent aud tiat
this danger aud all the that had occurred were md
all that might occur must be- the certain and inevitable
effect Of the statute placing the establishment IN that %
cay. These statutes did therefore deprive" many men,
and threatened and would inevitably "dcprivc" many
men, II their lives without due of law and
wholly imperative 80 take away from the people 0f
Casteon and among them from the prisoners the
mon right 10 destroy property which endangers lie
4 pestilcncc Nothing more carefully guarded by cur
institutions than the personal equality " al the
right of life liberty and property This 4 the O1ce "
government and where is well discharged is duties are
All done Outside Of the domestic relations and aft III
Ierind " infancy no ono man car hc compelled lDt
bis consent to another part With hs orety
liberty life for his bcurnt
4 Nnt. .fN IN "a
each other hut they equal as between tleL- I've
and the government St'fc take the property
81 class without cCmpcnsat,n while il held tc
rensate auo,her. The property ~ no BE- taken
without cofnpersaton. No shall be deprived a hs
liberty, of Ito, unless Il be adiGdged against
/ him by the courts laws previously made; IN othor
words by due process of law. Now these rights o. life
liberty and property though named three,
sense actually only one-the right Of life TO this the
others are stnpy incidental II only for live mon that