dom," He would have chosen to allegorize His celestial occupation by an allusion to a worldly malpractice? That persons with this impression can feel themselves edified by a participation of the consecrated elements, is quite beyond my comprehension. The Savior was entirely familiar with the numerous instances in which excessive indulgence in strong drinks is held up as an abomination in the Old Testament from the days of Noah, and certainly could have regarded it in no better light. But the first miracle, and other facts in history, demonstrate that He did not hold the abuse of any of the gifts of Providence by some, as conclusive against their moderate use by others. He well knew our human proclivity to the abuse of all the appetites and passions. But His instruments of reform were sermons, and parables, and example. And His servant, St. Paul, in conformity, says to the Colossians, "Let no man judge you in meat or in drink.'

In a word, my dear Sir, I must believe, that the sooner we revert to the old usages of the Bay State, the happier it will be for all. It is devoutly to be wished that our Legislature, reposing upon its known abhorrence of the vice of intemperance, and its manifold protestations against it, may pause in their attempt to reach, by legislation, what is unattainable, and which will only develope the worst feature of a bad government-ill-humor among the people at large. Let them leave the rest to the teachings of example, to the temperance societies, and to Father Mathew. This worthy person may be expected to display in more graphic colors than Hogarth, the contrast between "Beer street and Gin lane" and the advantages of "Water street" over both; and all good members of society will second his efforts.

Some

I venture to make these suggestions to you, and to place them at your disposal. With an experience in the legislation of Massachusetts, equal, I believe, to that of any living person, I have an abiding conviction, that I never have witnessed any attempt to legislate so adverse to the rights of man, as some which are made in our General Court, respecting the subject of temperance. They are a prelude to a system of sumptuary laws, which, if not resisted, will become a substitute for family government. Some body ought to speak out, in opposition to this course. body who has no personal interest, and no friend or connexion interested in the result-who drinks but little, who was never in the habit of drinking much, and who has no occasion to recur to a vender of spirituous liquors to replenish his stock. I do not add my name, not presuming that it can have much influence with the generation that has grown up since I have become dead to the busy world; but if any of your friends have the curiosity to know whether the writer comes fairly within the above category, you are at liberty to mention it.

I am, very respectfully and faithfully,
Your old friend,

ANTIQUARY.

DECISION

OF

THE SUPREME COURT

OF THE

SECOND JUDICIAL DISTRICT OF THE STATE OF NEW YORK.

BEFORE BROWN, STRONG, AND ROCKWELL, JUSTICES.

The People of the State of New York, upon the complaint of JOHN E. VASSAR, against PHILIP BERBERRICH. J. F. BARNARD and H. A. NELSON for Prisoner. J. THOMSON and T. C. CAMPBELL for People.

The Same, upon the complaint of JOHN MATHEWS, against THOMAS Toynbee. JOHN A. LOTT and A. HADDEN for Defendant. JOHN Van Cott and N. F. WARING for People.

BROWN, J.-Phillip Berberrich, the defendant in the first of these actions, was arrested under the act of the 9th of April, 1855, entitled "An act for the Prevention of Intemperance, Pauperism, and Crime," charged with having in his possession, with intent to sell, and with having sold, intoxicating liquor, called lager bier. He was brought before E. Q. Eldridge, Esq., County Judge of Dutchess County, and upon a trial by jury, was found guilty. At this stage, and before sentence, the proceedings were removed into this court by certiorari.

same.

Thomas Toynbee, the defendant in the other action, was also arrested, under the same act, without warrant, by John Mathews, a police officer, and brought before D. K. Smith, a police justice of the city of Brooklyn, and there charged with being in the act of selling intoxicating liquor, to wit: one glass of brandy-and, also, with having in his possession other intoxicating liquors, to wit: champagne wine, with intent to sell the The wine was seized by the officer. At a trial before the justice, without a jury, sitting as a court of special sessions, Toynbee was found guilty, and sentenced to pay a fine of fifty dollars, with five dollars eighty-seven cents costs, and to be committed until such fine and costs be paid, for a period not exceeding fifty-six days. It was also adjudged, that the liquor seized be forfeited, and a warrant issued for its destruction. The defendant appealed to the general term of this court, and thus we have the principle questions which arise upon the construction of

the act-its force and obligation as a law, presented for the consideration and judgment of this court.

The object to be effected by the statute under which these proceedings are had, must be ascertained from an examination of its various sections-twenty-six in number. If its office is one of mere regulation-to prescribe by whom and to whom, and at what places, liquors in certain quantities may be sold-then it does no more than exercise the law which it is thought to supersede; and although prejudicial to existing interests, and may subject certain classes to some privations and inconveniences, it is nevertheless, a law of binding obligation, which the people must obey, and the tribunals of justice enforce. If, however, its office and purpose is greater and more comprehensive than mere regulation if it aims at prohibition-prohibition of sales as well as of general and ordinary uses, to an extent which deprives the subject of the law of its value, and strikes down the vast and varied Interests concerned in its importation, sale, and production-if it provides for the seizure, forfeiture, and destruction of an article or thing, the product of human industry hitherto invested with the attributes of property, solely because its producers or owners design to make it the subject of sale and transfer, to deal in it and with it, as property, and apply it to general uses, then the question assumes a very different character, and we are brought to inquire whether an act pregnant with such consequences, and "med with such unusual and dangerous powers, is really within e sphere of legislative authority. It is just to observe, that while sales by persons generally and for general uses are expressly forbidden, there is no positive interdict against its general use when lawfully acquired. Yet, as there can be no lawful sales after the act takes effect, except by the authorized venders, for certain special purposes, and as the act is careful to impose one of its penalties upon purchasers from authorized venders, under a false representation that it is designed for an authorized use, it seems clear that the intent was to interdict the general use. Section one forbids the sale, and the keeping for sale, or with the intent to sell, except in the cases enumerated in the subsequent sections, and, also, in the case mentioned in the last clause of the same section, which clause is supposed to be of doubtful import. The sales excepted from the prohibition of the first section, other than those in the latter clause, are sales to authorize venders, and sales by them for mechanical, chemical, and medicinal purposes, and of wine for sacramental uses. Also, sales of cider, in quantities not les than ten gallons, sales of alcohol by manufacturers, of wine from grapes grown by the seller, and of foreign liquor, in the original packages, to authorized venders. Section four declares offences against the act misdemeanors, and provides for their punishment by fines and imprisonment. Section five designates the officers who shall have cognizance of such offences, and prescribes the form of the proceedings, and of the trial. Sections six and seven

contain what are called the search and seizure clause; and section ten provides for the condemnation and destruction of the liquor. Section twelve authorizes sheriffs, marshals, constables, and policemen to serve the process, arrest persons in the act of selling, and to seize, without warrant, liquor kept against the provisions of the act. The owner may interpose claim to the liquor seized, pursuant to the provisions of section seven; but he must first purge himself, under oath, of any design to disobey or evade the law, before he can be noticed or heard. Section sixteen deprives the owner of his right of action to recover the value of any liquor sold to a purchaser, or taken, detained, or destroyed by a wrong-doer, unless he shall prove that such liquor was sold according to the provisions of the act, or was lawfully kept and owned by him.

And section seventeen declares, that, upon the trial of any action to enforce the penalties and forfeitures, proof of a delivery shall be deemed evidence of sale, and proof of sale shall be sufficient to sustain the averment of unlawful sale. Section twentyfive declares all liquors kept in violation of any of the provisions of the act a public nuisance. The abatement of public nuisances is one of the remedies by the act of the party which the law concedes to any person injured, and he may proceed to the removal and destruction of the nuisance without the process or judgment of any court. (3 Black. Com., 5.) So that, if this clause is to have any effect, it can be none other than to invite and justify depredations upon the proscribed article. These provisions are vindictive. They are novel and unusual. If we except some few states of the Confederacy, who have recently entered upon a similar course of legislation, they have never before found a place in the written code of a civilized country. They are designed to work a forfeiture of goods-a deprivation of liberty and property-by means unknown to the common law. They set aside the just and humane rules of evidence, approved by time and sanctioned by sound philosophy. They assume a delivery to be a sale, and proof of a sale sufficient to sustain an averment of unlawful sale. And they refuse to notice or hear a citizen in defence of his own property, unless he first submit to take the oath demanded by the act, and disclose the facts upon which he relies to establish his innocence. It awakens strange emotions in this age of progress and improvement, to behold enactments like these embodied among the written laws of a people distinguished for their moderation, their moral excellence, their love of justice, and their ready perception of the distinction between right and wrong a people of Anglo-Saxon lineage-versed in the jurisprudence of Coke and Blackstone, and Kent and Story, and who are proud to trace the fundamental principles of their government upward, through the revolutionary struggles of 1776 and 1688, the conflicts and trials of the Great Rebellion, back to the Conferences of the Barons at Runnymede.

Impressed by the novel and extraordinary features of the act, and the doubts suggested by its perusal, I turn to the organic law as the true test of legislative power, and regardless for the time of the subordinate questions involved in the controversy, proceed to inquire whether its provisions do not fall within the prohibitions of the Constitution. I shall assume for all the purposes of this argument, that the prohibitions of the act extend as well to liquors, which are the growth and manufacture of foreign countries, as to those which are of domestic origin. Indeed, if we look at its title to which resort may be had to remove ambiguities when the intention of the lawgiver is not plain-and read the closing sentence of section one-which is thought to exclude foreign liquors in connexion with that part of section twentytwo which declares that it shall not be construed "to prevent the importer of foreign liquor from keeping or selling the same to any person authorized by the act to sell such liquors," the intention of the Legislature to include both kinds can hardly admit of a doubt. The exception upon which the uncertainty arises, proceeded, doubtless, from a desire that the law should conform to the decision in Brown vs. The State of Maryland, referred to hereafter. And the obscurity and want of precision in the language employed, must, upon the usual rules of construction, yield to the intention, when that can be ascertained from an examination of the law itself.

In neither of the cases under consideration, were the defendants impleaded or brought to trial upon the indictment of a grand jury. Indeed, the law contemplates no preliminary inquiry by the grand inquest. The counsel for the defendants insist, that in this respect it is in conflict with that part of section six of first article of the Constitution, which declares that "no person shall be held to answer for a capital or otherwise infamous crime, (except, &c.,) unless on presentment or indictment of a grand jury.' This involves an inquiry into the character of the crime created by the act. Is it an infamous crime? Offences which rendered the perpetrator infamous at the common law, were treason, felony, and the crimen falsi. It is not easy to define the meaning and extent of the latter term with certainty. It not only involved falsehood, but offences which injuriously affected the administration of justice. It was the infamy of the crime, and not the nature of the punishment, which constituted the crimen falsi. Thus, a conviction for libel, or for seditious words, or for keeping a gaming-house, did not render a man infa

mous.

Wharton's Crim. Law 854; 1 Rus. on Crimes 45; 1 Phil. Evid. 28; Barker vs. the People, 20 Johns. Rep. 457; Peak's Ev. 126.

The present Constitution was adopted in 1846. At that time, the term infamous crime was, and still is, defined in the 2d vol. Rev. Statutes, 587, section thirty-one, to include every offence punishable with death or by imprisonment in the state prison,