nor need these facts appear in the complaint, or even in writing. There is nothing compelling a disclosure of the name of the supposed offender, and whether it shall be disclosed or not, is left to the option of the person or persons thus sworn. (Section six.) 2d. On this evidence, of which the most important part has, perhaps, no better memorial than the frail recollection of the justice, he may issue a search warrant. This must describe the suspected place, as well as the things proceeded against, and command the officer to search for and seize the liquor, with the vessels in which it is contained, and store them in some safe and convenient place. The warrant is not to contain the name of the supposed offender, even if disclosed by the preliminary proof; but in that case, a separate warrant for his arrest is to be issued. These warrants, for aught appearing in the bill, may be placed in the hands of distinct officers, so that one may carry the accused before the magistrate, while the other is taking the property to such other place as he deems proper. 3d. The officer seizing the liquor, except in cases where the owner shall have been arrested, is forthwith to give written notice to him or his agent, if known. The notice must describe the liquor and the vessels in which it is contained, as near as may be; and it must specify the name of the magistrate, the name and residence of the seizing officer, and the time of seizure. The accused is not to be informed, it will be seen, of the place where his property may be found, nor is he to be summoned to answer for the supposed offence, nor even notified to appear at any fixed time or place. 4th. The mode of serving the notice is made to vary according to circumstances, and depends much upon the good faith and discretion of the seizing officer. If he knows the owner, or his agent, he may deliver the notice to the agent, though the owner is equally accessible. Or he may pass by both, and leave the notice at the residence of the one or the other, with any person of mature age who happens to reside on the premises. Where these facts are not known to the seizing officer, the notice may be served by delivering it to some person of like age residing or being employed in the place of seizure; and if none such can be found, by posting the notice in a specified manner. (Section seven.)

On proof that these steps have been complied with, by the return of the officer, or otherwise, the magistrate, according to the bill, may, after thirty days from the serving of notice, proceed to judgment of forfeiture, provided no one has appeared in the mean time, and made affidavit, so as to entitle him to be heard. (Section seven-eighteen.) It will be, at least, admitted, I think, that such a mode of acquiring jurisdiction, for the purposes of criminal forfeiture, has no precedent in any legislation which the courts have not pointedly condemned. And without noticing all its objectionable features, I propose to consider only four or five of the more prominent ones-enough, however, to characterize the entire process:

at

1. The process provides for no summons, citation, or notice to appear any fixed time or place, for the purpose of controverting the accusation. True, it pre-supposes, that a party thus circumstanced will, probably, appear at some uncertain period within thirty days, and obtain permission to be heard, if he can find the magistrate; but it appoints for him no day, and secures him no standing in court, to enable him to meet either his accusers or the magistrate, and ask to have the complaint dismissed, for irregularity or want of prosecution. If the magistrate should absent himself for the period designated, moreover, or be disabled from attending to his duties by an interposition of Providence, the judgment of forfeiture will not be arrested thereby, but may, nevertheless, be rendered immediately after the time limited.

Section 18; and see 6 Law Report 636, et. seq. N. S.

If

2. The judgment may be obtained, moreover, according to the provisions of the bill, without any notice whatever to the owner. The bill does not require that his name, or that of his agent, should appear in the search warrant, or that the magistrate should be informed who they are. The manner of serving notice is, therefore, necessarily dependent upon what the seizing officer knows, or may learn, with respect to the owner or possessor. he returns the name of some one as owner or keeper, together with the fact of personal notice having been delivered to him, nothing more is requisite to uphold the judgment. (Section seven-thirteen.) He, of course, must often act on mere hearsay, and the best information he can obtain, and however honestly he endeavors to ascertain the truth, will often be mistaken in this respect; and then "the property may be confiscated and destroyed, without any notice given to the true owner to appear and defend."

6 Law Report 634-5, N. S., Shaw Ch. J.

3. The owner, moreover, is entitled to no hearing whatever upon the original accusation. Indeed, he is not treated by the bill, after the seizure of his property, as a defendant in a criminal prosecution, unless he is so fortunate as to be arrested; nor does it pretend to secure him any of the privileges incident to that relation; on the contrary, it proceeds upon the theory, that the accusation is sufficiently established by the preliminary testimony, and that judgment of forfeiture is due, and must be pronounced, unless he assumes the attitude of an actor or claimant, with the burden of proving his innocence. His first appearance before the magistrate, therefore, if he appears at all, is to be in the character of a convict; one whose guilt has been already established presumptively, and who asks to save his estate from forfeiture by disproving the accusation. The accuser or accusers need not appear against him, and he is not secured any opportunity of cross-examining the witnesses on whose testimny the

warrant is issued, nor is he even secured the right of knowing what facts have been sworn to. If he is not content to appear on these terms, the ex parte decision made on granting the warrant is to be deemed a trial, and no further evidence of guilt is necessary, or even allowed, before pronouncing final judgment; and if he does appear, but fails to prove his innocence, the result is the same.

Section 7, 13; and see 6 Law Report 638-9, N. S.

4. But to the above conditions thus annexed to this extraordinary tender of a hearing, others equally, and even more, objectionable are added. Among the latter is one requiring the owner to prove his innocence by his own affidavit, and to disclose the particular facts demonstra, with various others which may be used to convict him of the offence, if any has in truth been committed. (Section thirteen.) The affidavit is not to be used for him on the contemplated hearing, but is made essential to his right to be heard at all; it is to operate as a burden, but not as a boon. The practical operation of this may be readily foreseen. If the owner is guilty, he must furnish evidence to be used against himself in any other criminal prosecution, or his property is to be forfeited, thus trenching on another right secured by the Constitution.

Const. art. 1, §6.

And so, though entirely innocent, and a prosecution is threatened, he must be content to lose his property, unless he is willing to hazard the disclosure of circumstances which may be used to his prejudice then, or afterwards. (Section seven-seventeen.) I do not believe that any Legislature, except the one which passed the bill in question, ever thought that the constitutional requisitions of a trial, especially in criminal cases, could be complied with in this way. A hearing on condition that the accused shall not be confronted by his accusers, or have the privilege of crossexaming the witnesses against him, or the benefit of the ordinary presumption of innocence! A hearing, if he will first swear that he is innocent, and then disclose facts and circumstances which may form important links in a chain of testimony tending to convict him!! The statutes passed in Massachusetts and Rhode Island, both of which have been pronounced unconstitutional, stopped far short of this.

See 6 Law Report 622, N. S.; 1 Curtis' R. 311; 7 Porter's R. 293, 366 to 368,

378 to 387.

The argument in favor of such enactments must be, that if the accused is innocent, he may safely comply with the prescribed conditions for a hearing; and if he is guilty, he ought to be punished, and has no just ground of complaint. The Constitution, however, proceeds upon no such fanciful theory as to the security of innocence; nor does it countenance the right of punishing even the guilty, except after due process of law.

5. Again, we have seen that the constitutional requisition, as to "due process of law," includes the rights of a trial by jury. See 6 Law Report 638; 1 Curtis' R. 311; also the cases cited above. Whether this calls for a jury of twelve men, especially in criminal cases, or may be satisfied by a less number, is a question on which wise men have doubted.

See Conv. Deb. of 1846 p. 544, et seq., Atlas ed.

But the provision for what the bill calls a "trial of such claim"-i. e. the hearing above spoken of-secures no jury of any kind. After the affidavit is interposed, the proceedings are to be in all respects such "as are provided in section fifth." (Section seven.) That provision is as follows: "At the time of joining issue, and not after, either party may demand a trial by jury, in which case a magistrate shall cause a jury to be summoned,' &c., as in other criminal cases in courts of special sessions. (Section five.) This applies obviously and exclusively to "a trial of the complaint," which is spoken of throughout the bill as a thing entirely distinct from "a trial of the claim."

See § 14, 17, 21.

Where a search warrant only is issued, there is no provision for a "trial of the complaint," nor for "joining issue" on the claim. These are terms of settled import, pertaining to legal science, and the Legislature, when using them in reference to legal proceedings, is presumed to have used them in their technical sense.

4 Pick. R. 405, 410, 411; 4 Mason's R. 232, 236; 1 Pick. 210; 5 Humph. R. 392.

When there is to be a "trial of the complaint," it is easy to see what constitutes the joining of issue.

The warrant then recites the accusation;

2 R. S. 706 § 3:

the accused is brought into a court; the charge made, as stated in the warrant of arrest, is to be distinctly read to him, and he required to plead thereto.

2 R. S. 712, § 7; Barb. Cr. Law 525, 536-7.

But how is an issue to be joined with a view to the "trial of a claim," the owner not being arrested? The bill makes no provision for his arraignment, nor for any thing in the nature of it; nor for requiring him to plead. Indeed, he may not be the person suspected of being guilty, for the warrant can be issued for the supposed misconduct of the keeper. (Section six, seven, -.) The owner is, therefore, not even a party to the proceeding, until he elects to become so by presenting an affidavit disclosing his claim. The charge, as stated in the warrant, is not to be read to him, for it is a mere search warrant; and besides, it need not be returned till the day for rendering judgment, if it must be even then. (Section six, seven, thirteen.) If the complaint is deemed the

counter allegation, to which he is to plead by affidavit, there will obviously be no issue; especially as the former may state nothing more than mere belief. But the substantial answer to the suggestion is, that the right of trial by jury belongs to both parties when it exists, and must be claimed at the time of joining issue. And to hold that the act of presenting the affidavit is joining issue, therefore, would clearly be a misapplication of the provision; for the complainant would have no means of knowing when the act was to be done, so as to avail himself of his right. The result is, that the trial of every claim must necessarily take place before the magistrate alone, without a jury; no matter how large an amount of property may be involved, nor what suffering may follow from his decision.

Without adverting, at present, to other anomalies sanctioned by the bill-such as allowing one man's property to be forfeited for the unauthorized act of another, by a proceeding against the latter alone-I have no doubt that this entire system of search and seizure is utterly void, and that no part of it can be enforced. I have found it difficult to speak of the process devised for this purpose, with the respect which is due the legislative department of the government. Some parts of the scheme seem to evince a spirit of bold defiance of the Constitution, and others, a studied. effort to evade its claims. The two things-the bill and the Constitution-stand in direct antagonism to each other. The Constitution requires a judicial ascertainment of guilt, by due process of law, or, at least, the right to it, before a man can be deprived of his property;" and this the bill refuses. The former contemplates an unambiguous, as well as unqualified, guaranty of this great privilege, while the other, tenders a meager and worthless substitute, and clogs even that with conditions. The one calls for a trial, so that the accused may be confronted. with his accuser, cross-examine the adverse witnesses, and be shielded by the ordinary presumptions of innocence; but the other directly reverses all this. And while the one contemplates a trial in the Anglo-Saxon sense-a trial by jury, if not a jury of twelve men; the other proffers an inquisition before an inferior police magistrate. Such a mode of confiscating property to an unlimited amount, cannot be upheld except by a decision which shall abrogate the fundamental law, and place the Legislature above the people; the creature above the creator. It is not a trial in any sense; much less in the sense of the Constitution. Though clothed with some of the forms of a judicial proceeding, and named a trial, it is, to adopt the language of Mr. Justice Story, but a "solemn fraud." And the judgment which is sanctioned" amounts to little more in common sense and common honesty, than the sentence of that tribunal which first punishes the party and then hears him-Castigatque Auditque.

3 Sumn. R. 607-8; 6 Law Report. N. S. 636 to 639; 5 Georgia R. 206-7; 1 Curtis' R. 311; T. Charlt. R. 235; 4 Mason's R. 336; 3 Peters" R. 446-7 and see the cases oited above.