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

most solemn FORM waive the right Of the State that he shan
not be deprived Of life whou due OF Ia which in
this a trial by twelve instead of less number
II jurors tGancem vs. the People, Court Of Appeals Oc
tober 1857 Thus by the highest adjudication il is esta
bhshed that the constitutional inhibition against taking
life without due process OF law s only bulwark for
the individual against all other men, against the egsa
and against the state but also buwark Of the state
merely against the Legislature and all other men but
against the individual himself
Nor does the constitution, when il forbids lie to bo
taken without due process law and except incidental
ly;p for that would make void the prohibition because
life cannot be DESTROYED except the incident OF
other act, TO which death s IN incident. Hanging
shooting immersion in water carbonc acid are
death but death is incident such acts searable
or nseparable they shall be conducted Death il but
incidental to the stoppaee of food drink or air con
tinued long enough death Death is incidental
a thousand other things, and the constitution prohibits
OF these hpgs, but prohibits the doing them in
such manner that according TO the known nature Of
each death will ensue. It prohibits the end and every
means to that end except onedue process OF law tn
prohibition every thing else.
Nor does the constitution say "except in cases of ne
cessy for who IS to Judge Of the existence or measure
Of the necessity II the Legislature, If Individuals II the
State itself may kill whenever il thought necessary
then killing is matter Of mere discretion But, the
contrary that who has wifully done an act which
the law has said the man who did should die, may after
indictment the county, trial by twelve Of his
pcers after beng confronted with the witnesses against
him. defended by counsel verdict Of guilty and a sen
Of the Court be killed in the way the law shall have
previously ordained and in no other way. Every other
man has right to livc-cvery other bears that
within him which all men, the Legislature, even the State
itself is bound back before and respect Nay
when life is in danger he has right TO protection and il
il will not the danger be imminent that il
give it, then he may protect himself by whatever
pom he In such an emergency all words bearing the
form Of laws to him void property may destroyed
other life dear TO the possessor and sacred
TO the State as bis own may be shed. e. Kent Com 49,
1s 2R s. &c., sec Sub nol consi ar, i wynchamer
Of New York, D,nio, 461 Mayor, &c, Va. lord, II
Wend. 2s5 The same Stone, 20 Wend l39 25 wend,
$50; Van Wormer The Mayor Of Albany, Is wend.,
262) Such under the constitution is every in the
State and among the rest those Who reside along the
shores of the Narrows. And this great and imminent
danger at the time Of these transactions them.
The pcstience, which under all the Just occasion
for destroying the property that endangcrs iife
among them There ,ainty as to iis origin
Is came nom the Quarantine establishment for tho vel.
low fever infection MAS both in the vessels and in the
hospitals Some had died, some sick In the 40
last years Of s presence has already been stated
four hundred o. the inhabitants had sckened, and
nearly two hundred had died Of the disease
nunicated from the source.
Now, considering the whole action OF the Caseton
Board Of Health to have been void and that all
precautions had been taken by the Quarantine author
ties TO Isolate the disease, and that in spite Of such pre-
ctutons the disease had broken ont and impending
the question still remains the people OF Casteton
without al Of self projections II IL be said that
they might abandon their homes the is that so
might the people Of Albany have abandoned their homes
before destroy the tenement houses Us Weud. 1919
But that not held necessary 20 them, neither
be deemed necessary to the people Of Cascton. They
had the right Of self protection rlght under the cons
tuition for when that forbids the taking of life without
due process Of law, authorizes by irresistible mp
cation tho right 10 such taking,
resistance TO any extent necessary tie end. This
right, then, they might use; for what the
sttnuon protects the Legislature cannot destroy
Now, all the cases recognise the right Of those
whose lives endangered by infectious diseases
sroy The place from which there danger that the
lection might spread There WAS in fact no proufand
there could be nonc-that cholera had Issued the
buildings destroyed ia the Albany The proof was
that they dangerous and might XIII; and in such
cases Is unnecessary 70 wat until somebody has died
before acting The object Of acting prevent the dying
Now the proof has shown that infection actually with
" and might at any moment issne and, far such
thing can BE- KNOWN hal, in fact IN al least terrible
maisnce, ssueu nom the grounds,
1t all events The disease had always before and had
seued from the grounds the vessels aud nobody
could say that Il lad not issued from the grounds II
certainly was fros one or the othcr-moblby Was from
both.
These hospitals under the protection Of
law than those buildings Ia Albany than any other,
Tor the lax protects All buildings alike Neither tho
hospitals the buildings in Albany destroyed be-
they centn things Illegal, for the unclcalncss of
The as lawfully there the malaria in the other;
bt because tue contens dangerous 10 the surround
ing people. Both destroyed not for what they
tanned but for whs, they might suffer escape and
ai alone, both IN the exercise ~ the constitutional
right o son proerton andcr equally impending dang
The only possible difference between the cases this
respect y that thc Infection s accumulated on the
ehofage and "a tc hosita not by PERMISSION OF the
law, nnt under the commands o statute, and
That hut for these commands II would not be there the
sickness and death IN that vicinity would hot have
ed life and hc, there would be endangered II is
therefore, the statute which all without the
tutc nothing Of the kind would happen These deaths
we're not accidental, mon may be by
a railroad. o. ial rom shpboard IN storm They
inevitable: they could be prevented ~ no safeguards.
The malaria posnrs the air, aud MI who breathe must
be in danger. and although all may die, can
be said TO be safe II he vessels 10 dscla 20 broad
sides Of grapcshot the adjacent shores, c would
be more certainly taken than IS by their shp'oads o.
infected matter. and the statute VIII should command
the one does not more certainly directly
inevitably take lite than the ono which comman s the
other. IN fact, not much for ramparts night BE-
safeguard against the canncn, but ramrarts be
raised against tainted atmosphere. The lie taken in
and in either case the statute would be void.
AZ all events cannot deprive those whose lives
endangered n the constitutional right ef self defence by
whatever weapon might in tho emergency hand.
II he said that Infected vessels must be somewhere and
may well be on the prcscnt anchorage ground else
where and the hospitals az well be in their prssen, loea
ton ywherc-f the necessity be conccded docs
not follow that what the constitution forbds should no
done, and what the constitution authoryrs should he
emitted The State, by ts powers of eminent domain takes
on due compensation, land enough 20 remove all popua
on beyond the reach Of infection This the only way
for the rght of self protection against dangers impending
ones life can be taken away only by removing all o-cason
cr 's USE and for this The Iowcr Of tho state y limited
only ~ IL wealth. which, happily, Is for the purpose
ample But the nature OF tho statutes relative quarans
the will be- better understood when u is considered that
they are the statutes relative to public health tho city
of New York and Is 10 the people o the county Of
New York that those Of the county Richmond
rsed to die statute transferring TO the property
Of another " void. fTayor Ford Hi, 1io. Blk
Gem l3si Enbury vs.. Conner, Com, 511; Powers vs.
B.rgen, Scid., Sss wcscrvet Gregg, Kern, 2c2)
III says Bronson, j. in the case 'tbe legislature
take the property Of and transfer TO r. they
take himself and either shut hun up prison or pvt
hm TO death and because The latter could not be done
Tie former denied.
Undoubtedly city OF New York j. entitled to ali the
protection in the matter that the state give consis
tcnty with tie health 81 others She has no right
more. Her great advantages followed by corrcspon.
dent nconvenlences her great public works BY great
Expenditures her great foreign by the infection
u brings. But the legislature can apporton
upon the surrounding communities her dangers than her
Expenses no more compel them % do her dying than 70
Jay her taxes-ueithcr be doae, Nothing 10 Harris
THOMPSON Barb. $50 mil atad against these views
The subject oi The constitutional Inhibition against taking
life but by due process Of au does not To have
been alluded TO- and surely case, whatever may de.
tdc can be no authority question not mentioned by
counsel or considered by the Court. II IS undoubtedly
true that onothinR which the law sections be a nu
sance But where the LEGISLATURE authorizes com.
minds that which tho constitution orbds, it, statutes
cot .aw, and sanction nothing
Tor all these roasons think the prisoners should he
~ hargcd.
Mr. ADthon, the counsel of tic defendants loudly
cheerCd on his way 10 the ferry
The Mayors Thanksgiving Proclamation.
whereas the Governor Of the State in accordance with