66

But, apart from this scheme of search and seizure, the bill is unconstitutional in many other respects. One part of it provides as follows: "No person shall maintain an action to recover the value.or possession of any intoxicating liquor sold or kept by him, which shall be purchased, taken, detained, or injured, by any other person, unless he shall prove that such liquor was sold according to the provisions of this act, or was lawfully kept and owned by him." (Section sixteen.) I have before shown that the bill not only allows the purchase of this species of property, but treats it as a useful article for chemical, mechanical, and medicinal purposes, and thus encourages investments in it as a fair subject for trade and commerce. The pro vision above quoted contemplates all this, and it assumes, also, that after the property has been thus acquired, it may be wrongfully taken, detained, or injured, by another without right, while lawfully kept. And it then declares that an owner thus injured, however innocent, shall have no remedy unless he is able to, and does prove, affirmatively, that the property was not unlawfully kept. To appreciate the full tendency of this restriction, we must bear in mind that the question of unlawful keeping must frequently depend upon the mere psychological fact of intent-a fact which, until evinced by some overt act, can neither be proved or disproved by third persons.

See Best's Princ. of Ev. 9; 6 Law Report N. S. 637-8. For example, liquor may be kept not only in a dwelling-house, but in various other places specified in the bill, and then, whether it is lawfully kept or not, will depend entirely on the state of mind or purpose of the owner or keeper. (Section one, et. seq.) Suppose that while it is thus kept by the owner, and before he has evinced, or even conceived any intent to sell, it is wantonly injured or maliciously taken away. The bill says he shall have no remedy except, upon the impossible condition, that he will prove affirmatively the absence of an intent to sell! Can the Legislature impose such a restraint without violating the Constitution? Even if the power should be found lurking in some vague clause of our state Constitution, can it be exercised consistently with the Constitution of the United States? I am of opinion that it cannot.

And

The Constitution of the United States forbids the states from passing any law "impairing the obligation of contracts." the prohibition is not limited to mere executory contracts, but extends, also, to executed ones; to titles, as well as promises; to personal, as well as real estate; in short, to every species of property.

3 Story's Const. 240 et seq.

True, whatever belongs merely to the remedy may be the subject of state legislation. But if, as in the present instance, a state, under pretence of regulating the remedy, incumbers it with conditions which render it worthless, and thus trenches the

upon

right, the act is utterly void. The following language of Mr. Justice Washington, who delivered the opinion in

Green v. Biddle, 8 Peters' R. 1,

though used in reference to real property, is equally applicable to this question. "Nothing," he observes, "can be more clear upon principles of law and reason, than that a law which denies to the owner of land a remedy, &c., or which clogs his recovery of possession by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered insecure, according to the nature and extent of such restrictions."

Id. 75-6.

He then proceeds to show that the objection to a law, on this ground, can never depend upon the degree of change which it effects in the right of the owner, provided it is interfered with at all.

Id. 84-5, and see S. P., 1 How. R. 311, 315 to 319; 2 Id. 608; 33 Maine 558 et seq.

The Legislature may, perhaps, by laws operating as to future acquisitions, prohibit the citizen from acquiring any property whatever in liquor, and thus extinguish both the right and remedy at once. But it cannot do what this bill has attempted, viz: treat an article as a fair subject of commerce, invite investments in it, as property, and then practically withhold all remedy for depredations upon it while lawfully kept and used. Such a course of double-dealing is neither honest nor constitutional, and is, fortunately, beyond the sphere of state legislation.

See 33 Maine, 558, 562-3.

The provision that "all liquor kept in violation of any provision or provisions of this act, shall be deemed, and is hereby declared, to be a public nuisance," is to be regarded, I think, as a part of the same general scheme. Though separated in the bill from the clause last above quoted, the two are intimately connected in policy and principle, and should be looked at together, especially if both are understood to license the destruction of property by private force. I have already said that the nuisance clause, even if valid, does not give this right, and cited some authorities to show that the doctrine of abatement, by private force, could not be applied, from the nature of the case, to such an offence. That remedy cannot be invoked, moreover, for another reason. The offence, though called by an old name, is essentially new, especially so far as it is made to depend on the mere intent with which the property is kept. Nothing like it, at least, nothing identical with it, existed before, either by statute or at common law. Previous laws have generally taken cogni

zance of affirmative acts, not intentions, and have been content to regulate outward conduct, without trying to search the heart. True, the common law imputed to those who "took measures to imprison the King," an actual intent to compass his death, and punished them for treason.

Fost. Cr. Law 195; Best's Pr. of Ev. 344-5.

But even there, it professed to deal with the measures taken-the open, visible acts of the party-facts susceptible of being proved and disproved in a court or justice by third persons. The bill in question, after creating an offence before unknown, points to various kinds of process by which it may be punished, and these alone, I think, can be resorted to.

See 1 Salk. 45; Croke's Jack. 644; 7 Gill. & Johns. R. 290; 2 Hale's P. C. 5; 2 Burr. R. 803; and see 5 Johns. R. 175; 26 Wend. 91.

The principle established by the cases would probably exclude the remedy by indictment, as well as abatement, and confine the prosecutor to such as the bill expressly prescribes, especially as these appear to be quite ample, both in number and severity.

Sections 4, 5, 6, 7, et seq.

But suppose the clause is to be so construed as to authorize the destruction of this species of property, when unlawfully kept, under pretence of abating. a nuisance, can it be upheld? Its practical effect, when taken in connexion with the clause creating the artificial presumption of guilt, would be to authorize the destruction of property lawfully kept, unless the owner was a licensed vender. For the restriction implied by the words "unlawfully kept," is of no value, and might as well have been omitted, so long as the remedy is made to depend on a condition with which the owner cannot possibly comply. Viewing the two clauses together, therefore, the bill invites indiscriminate agression upon this species of property, whether lawfully or unlawfully kept. And while it professes a willingness to redress the wrongs of an innocent sufferer, it does so only to ensnare him into a lawsuit in which he must inevitably fail. Thus, the Legislature first adjudges that his intent was wrong, and then challenges him to prove the contrary.

3 M'Lean's R. 539, 540, 541.

It "keeps the word of promise to the ear, and then breaks it to the hope." With one hand it holds out a boon to decoy, in order to strike a fatal blow with the other.

It is too often thought that, as the law of evidence relates generally to remedies, it may be modified at the will of the Legislature. This is so where the Legislature confines itself to mere modal changes, but not universally so, when the security of life, liberty, or property is concerned. Then, the Constitution interposes, encircles the citizen, and bids legislators abstain from touching rights which it has consecrated. The importance of this branch of the law has been spoken of, by one capable of

appreciating it, thus: "The rules of evidence, as they are settled for the general administration of justice, are not to be overruled or tampered with. They are founded in the charities of religion -in the philosophy of nature-in the truths of history, and in the experience of common life; and whoever ventures rashly to depart from them, let him remember that it will be meted to him in the same measure, and that both God and man will judge him accordingly."

Lord Erskine, 24 How. St. Trials 965-6; 1 Greenl. Ev. § 584.

I have thus answered a part of the questions submitted to me. Other portions of the bill are equally objectionable with those above noticed. My views as to these will be presented hereafter, at the earliest practicable moment. It has been suggested that the defects of this scheme, as a practical system of measures, may be aided by a large exercise of the power of interpretation; and that it may thus be molded and fashioned by the courts so as to stand. This is hoping for more than the judiciary can do, without usurping legislative functions. The defects are too radical and lie too deep to be remedied in this way. Judges can decide, but not legislate. They can declare what a law is, but not make or alter one. With omissions and excesses in legislation they have nothing to do, except to obey the expressed mandate, if valid, or annul it, if void. Accordingly, whenever the judiciary has been appealed to, in modern times, to save such an enactment by interpolating provisions not plainly expressed, the judges have answered as Chief Justice Shaw did: "In order to judge of the conformity of the enactment to the requisites of the Constitution, we must be governed by the terms and provisions of the act itself, and cannot construe it according to any presumed intention of the Legislature not expressed. In a law directing a series of measures which in their operation are in danger of encroaching upon private rights, vesting in subordinate officers large powers, which, when most carefully guarded, are liable to be mistaken or abused, and which are to direct, limit, and regulate the judicial conduct of a large class of magistrates, it is highly important that the powers so conferred, and the practical directions given, be so clear and well defined that they may serve as a safe guide to all such officers and magistrates in their respective duties; and in these respects the statute itself must, on its face, be conformable to the Constitution."

NICHOLAS HILL, JR.

OPINION OF THE

HON. RUFUS CHOATE,

CHARLES G. LORING, SIDNEY BARTLETT, AND ELIAS MERWIN, ESQ'S. ON THE CONSTITUTIONALITY OF THE

PROHIBITORY LIQUOR LAW.

GENTLEMEN:-I have carefully considered the recent "Act concerning the Manufacture and Sale of Spirituous and Intoxieating Liquors," and now proceed to state the conclusions at which I have arrived in regard to those portions of the act upon which you have requested my opinion.

The act directs the seizure of liquors in two classes of cases: first, by certain officers designated, without any preliminary warrant or process; and second, by virtue of a warrant of search, to be issued by some justice of the peace or police court, on complaint made for that purpose. I propose to consider them in this order.

I. Sections thirteen and thirty-one, which direct the seizure without process, may be considered together, and are as follows:

"SECT. 13. Any mayor, alderman, selectman, sheriff," &c., "may, without a warrant, arrest any person or persons whom they may find in the act of illegally selling, transporting, or distributing intoxicating liquors, and seize the liquors, vessels, and implements of sale in the possession of said person or persons, and detain them in some place of safe keeping, until warrants can be procured on complaint made for the trial of said person or persons, and for the seizure of said liquor, vessels, and implements, under the provisions of this act."

"SEC. 31. It shall be the duty of any mayor, alderman," &c., "if he shall have information that any intoxicating liquors are kept or sold in any tent, shanty, hut, booth, stall," &c., "to seize such liquor and the vessels in which it is contained, and arrest the keeper or keepers of such place, and take them forthwith, or. as soon as may be, before some justice of the peace or police court, with the liquor and vessels so found and seized, and to make complaint for the arrest and trial of such person or persons, and for the seizure and confiscation of such liquors, according to the provisions of this act."

I do not now intend to consider the abstract question, how far