The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1872-02-13

IWT TIN IfTTII~TlF.
Constitution ,iity oi rrohibitofy Liqnor
Laws.

III fNHN W. f'fF AkNNt tOun-titNl VI INV
In common sense estimate of things
valuable to man, and to society, that
which promotes wealth and happiness has
precedence to mere property interests,
laws and Jurisprudence that subordinate
the personal rights and happiness Of the
community, or of the individual, to
mere question Of property fail of appre.
ciating or of repeating the true basis Of
an effective beneficial government. Hence,
the absurdity Of the celebrated decision
of our New York court of appeals on the
prohbitory liquor law, Sd of Hernon,
37S. Tho pettifogging essays embraced
in the opinions ; on tho sacred rights Of
property in intoxicating liquors are
scarcely credtablo record Of the moral
sense of the highest court in the state,
There was then, and is now, conflict
between mere mercenary rights of prop
erty, and the interest of public morals ;
and court with delicate appreciation
Of the paramount Importance Of the per-
sonal happiness of the people, would have
given force to the principle of law "that
every man is bound to use his property
in way that will not injurc his neigh
bor." But the theory in the
case cited, seems to be that, tho owner
has such right of property in liquor,
that any laws restricting its sale tends to
diminish its value, and hence, TO infringe
the rights Of the owner.
The political influence Of the liquor
trade, seems to have been more or less
felt in these opinions, which say, in cf.
feet ave have nothing to do with the
personal happiness or prosperity Of the
people, but property, in an immoral and
mischievous business, shall be protected
at our hands. Tho destruction OF the
liquor offered for sale, in contravention of
the statute was in the nature Of q penal.
ty imposed on the owner, and was no
more an Infringement OF the right of
property, than the imposition of any pc.
cuniary fine for crime or misdemeanor.
AS to the constitutional question in
volved in prohibitory law, | have to
remark, that constitutions, like statutes,
arc subject to construction by tho exist
ing or anteccdent condition of things, at
the time the law or constitutional provi-
sion was enacted, or established 1t has
been well remarked by an eminent Jur.
ist in substance, that constitutions in
civil government are not madc by the
acts Of conventions, but grO,c out Of the
state Of society and the developments in
the progress of civilization" Hence, we
find the protest of the British constitu-
ton, in no one particular document, max
inns whose origin is lost in the remote
past, found their receipts in the great
charter, supplemented by the cnactlnents
of some dozen of ancient parliaments.
And even this record has never remained
fixed for day. Adjudications by courts,
and franchises granted by the sovereign,
and acts of legislation have constantly va
ried the prerogatives of the crown, and
the rights of the people. The actual con-
stitutional relations Of tho government to
the governed. have scarcely remained
fixed for a day, during the last thousand
years.
Hence, the fundamental law in force
in this country and this state New York J
is predicated on the legal history of tho
country, from its earliest settlement by
civilized people to the present time. So
the extent Of jurisdiction claimed by the
colonial governments OF New Amster-
dam and New York, in the matter Of in
toxicating drinks, became in those re.
mote days the fundamental law of the
government on that subject. will then
cite an abstract Of the excise and police
laws and ordinances ofthc colony Of New
Netherlands on the subject Of strong
drink. When, as yet, there was no COM
mon law, nor any English law Al all, the
experience of our Dutch ancestry in the
New Netherlands, found that law re-
stricting and regulating the sale ofliquors
were an absolute necessity And it was
among the first cnactmcnts of the colonial
government, ordained by Governor Kielt
and his counsel, as carly as 1893, that
"All persons from now, hencciorth, be
forbid the selling Of any 'ciRes, on pain
Of iorfeiting five and twenty gildors, and
the wineS toaad in their houses shall be
forfeited" The West India company's
store might however, sell wine in mod
crate quantities and at reasonable prices.
In 164l it was ordained "that no per-
son shall attempt to tap beer or any 9TH
or strong drink during divine service on
Sunday, or to tap for any person after
ten o'clock at night, on pain of the for
fixture Of the beer and - gilders for the
benefit of "the Fiscal" with three month 5
exclusion from the benefit Of tapping"
These provisions with more strictness of
detail were re-enacted under Stuyvesant
in 1917. From time to time these ordi-
nances were modified and enlarged and
rendered more and more stringent, dur
ing the continuance of the Dutch govern
ment in the New Nctherland.
Any person found drunk was fined two
shillings with fine duplicated on each
subsequent conviction.
In an ordinance Of 1913 it is rccited
that the practice OF drinking TO excess,
on evenings and on the Sabbath prevail
ed. That nearly fourth part of New
Amsterdam was occupied by brandy
shops, tobacco or beer houses by means
of which, the common people and the
companys servants, were seriously de-
bauched, The youth were drawn from
the path of virtue, and into all sorts of
Irregularities. Hence, came cheating,
smuggling, frauds and the clandestine
sale of beer and brandy to the Indians,
and the natives" This ordinance then
drescribes the regulations Of taverns re-
viving and re-enacting most of the old
excise laws then in force.
The new Netherland government not
only claimed the jurisdiction of the
liquor traffic, to say how, and in whose
hands, it should be carried on, and with
whom and when, it should be prohibited,
L,t - laid cnaoial importa md tnvea hot h