The eloquent denunciations of a distinguished jurist, apply with peculiar force to this proceeding. The discretion of a judge is the law of tyrants; it is always unknown, it is different in men; it is causal, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable."

Section twenty-six of this bill provides that " Any person may maintain an action to recover any money paid, or the value of any services, or labor rendered or done, or the value or possession of any property, assigned and conveyed, in payment for liquors sold contrary to the provisions of this act, by the husband, wife, parent, child, ward, apprentice, or servant of the plaintiff, and in such action, the person by whom such money was paid, services or labor rendered or done, or property assigned or conveyed, if not a party to the action, or the husband and wife to the party, shall be a witness to any matter pertinent to such action. Any married woman may commence and maintain such action in her name, with or without the consent of her husband."

Under section twenty-nine, another action may be brought by the same parties, "against any other person who shall sell any liquor contrary to any provision of this act, to the husband, wife, parent, child, guardian, ward, apprentice, or servant of the plaintiff, or who shall intoxicate or cause such person to be intoxicated; and it shall not be necessary in any such action to aver or prove any special damage, but the court or jury before which such action is tried, shall assess the damages of the plaintiff therein; but any special damage may be shown. Any married woman may main tain any such action in her own name, with or without the consent of her husband.”

These two sections create rights of action heretofore unknown. Under one, the persons designated can recover money they have never paid, and under the other, maintain an action for damages which they have never sufferred. The sympathy which is naturally, and justly extended to suffering wives and children, and the indignation excited by the belief that the seller of liquor has often turned a deaf ear to their entreaties, must not lead us to treate evils on the other extreme, nor to be blind to the unlimited effects of these sections. They do not make proper discriminations. They would permit the wife, parents, and each of the children of a temperate, intelligent, and virtuous man, without regard to their number, age, or condition, to recover money which never belonged to them, and which may have been paid to an unlicensed seller for liquor purchased for mechanical, medicinal, or even sacramental purposes. After the children, parents, or wife of the buyer have recovered the amount paid to the vender, the latter may again be sued by each of the described persons under the twentyninth section.

In this action it is not necessary to show any violation of law except by the intentments consequent upon proof of the delivery

of intoxicating liquor. In the multiplied suits which may be brought under this section, before a justice of the peace or other magistrate, it is not necessary to prove or aver any special damage, but upon mere proof of the delivery of intoxicating liquors, the jury are authorized to assess damages at their discretion. The defendant is liable to be deprived of his property by a prejudiced or excited jury, without having any of the usual protections which our laws afford to the most dangerous and hardened criminal. He is denied the benefit of the intentment that he is innocent until he is proved guilty. Under our laws, in certain cases, juries are authorized to give vindictive damages where the violation of the law is shown by actual proof, and the character of the transaction is brought to their knowledge; the evidence in such cases affords some guide to their judgment, and the unjust verdict may be corrected; but under this section they may have before them only presumptions and intentments of guilt, and nothing to restrain their passions or prejudices. The section creates new rights of action, and abolishes salutary modes of proceeding and the best principles of evidence.

It is not the due process of law, required by the Constitution of the state. The suits under this section, and all other suits, civil and criminal, authorised by this bill, to be tried subject to the provisions of the thirty-second section, are not trials in any sense that form is understood by our Constitution and laws.

There are other objections to the twenty-sixth and twentyseventh sections. The domestic relations are deemed sacred, not only by the laws of the land, but by the religious and moral sentiments of our people. There are but few, who under the influence of novel ideas andtheories, seek to impair these relations.

The public sentiment would approve of a law, which should give a right of action to the wife and children of intemperate husbands and fathers, against those who should sell them intoxicating liquors, and which shall subject the defendant to exemplary damages, if found guilty, after a fair trial. But the lawful head of the family should not be deprived of the respect and authority due to his position, until he has forfeited them by his misconduct.

Suits brought under these sections, where the father is the buyer and a temperate man, necessarily implies that he is the instigator of a dishonest prosecution on the part of his wife or children, or that he is to be made an object of contempt by them. It makes his home a scene of strife, or a place where fraud is plotted. In order to maintain suits, it is not necessary to show that the father is an intemperate man, incapable of managing his affairs, or that the liquor was purchased for the purpose of drinking; he is not even guilty of an offence when he buys. It may be said that the seller should not violate the law under any circumstance. But the worst of criminals must not be deprived of the protection of the principles of justice. The act multiplies penalties, fines, forfeitures, and actions against the alleged offender and at the

same time deprives him of this constitutional right of presumptive innocence.

The thirty-third section of the bill directs that "no person or corporation shall knowingly carry or transport any liquor, from place to place within this state, or from any place without this state to any place within this state; and no person shall knowingly deliver any liquor to any other person, or to any corpora tion, for the purpose of being so carried or transported, unless the name and place of business, or residence of the person to whom the same is to be conveyed, together with the words 'intoxicating liquor,' are distinctly marked on the outside package in which the same is contained.”

This regulation cannot be of great importance in carrying out the objects of this law, but it would, in connexion with the provisions for the seizure of liquors, inflict a severe blow upon the great carrying and commercial interests of the State of New York.

As there would always be a liability on the part of citizens of other states to overlook or neglect these police regulations, they would create constant embarrassments to our domestic commerce. The law recognizes the legality and propriety of manufacturing, transporting, and using intoxicating liquors; but if it subjects them to penalities and forfeitures upon light proofs, or for imputed offences, which are proved by the mere fact that they are found in vessels or storehouses with liquors illegally held, it will divert from our canals, our railroads, and our cities, not only this particular commerce, but all that is connected with it. The citizens of other states will not separate their diversified productions when they send them to, or obtain them from the markets of the east. If we drive off a portion of their commerce, their convenience and interest will be promoted by withdrawing the whole and seeking other channels which are free from embarrassments.

The idea pervades the bill, that unusual, numerous, and severe penalties, will secure enforcement; but all experience shows that the undue severity of the laws defeats their execution.

After the excitement which enacted them has passed away, no one feels disposed to enforce them, for no law can be sustained which goes beyond public feelings and sentiment.

I have omitted any notice of many defective provisions in the bill, as they might be corrected by future legislation. I have confined my objections to those which are radically wrong, which are inconsistent with the principles of justice, with the rights of persons and of property, and which so pervade the bill that they cannot be stricken out without destroying the entire fabric. The bill is wrong, because it directs unreasonable searches of the premises and dwellings of our citizens, under circumstances calculated to provoke resistence: it deprives persons of their property in a manner prohibited by the Constitution: it subjects them on mere suspicion of knowledge of a suspected crime, to an inquisitorial examination.

For one act of alleged violation of law, a citizen may be proceeded against as a criminal-be fined or imprisoned, and his property seized or forfeited-he may be proceeded against in civil suits, by various parties by whom he has had no dealings, and subjected to the payment of damages where none have been averred or proved. To all these prosecutions he may be subjected without the benefit of trial, in the usual and judicial meaning of that term.

The Constitution makes it my duty to point out the objectionable features of this bill, but I owe it to the subject, and to the friends of the measure, to add the expression of my belief that intemperance cannot be extirpated by prohibitory laws. They are consistent with sound principles of legislation. Like decrees to regulate religious creeds or forms of worship, they provoke resistance where they are designed to enforce obedience.

The effort to suppress intemperance by unusual and arbitrary measures, proves that the Legislature is attempting to do that which is not within its province to enact, or its power to enforce. This is the error which lies at the foundation of this bill—which distorts its details, and makes it a cause of angry controversy.

Should it become a law, it would render its advocates odious as the supporters of unjust and arbitrary enactments. Its evils would only cease upon its repeal, or when it became a dead letler upon the statute book. Judicious legislation may correct abuses in the manufacture, sale, or use of intoxicating liquors; it can do no more.

All experience shows that temperance, like other virtues, is not produced by law-makers, but by the influence of education, morality, and religion.

While a conscientious discharge of duty, and a belief that explicit language is due to the friends of this bill, require me to state my objections to the measure in decided terms, it must not be understood that I am indifferent to the evils of intemperance, or wanting in respect and sympathy for those who are engaged in their suppression. I regard intemperance a fruitful source of degradation and misery. I look with no favor upon the habits or practices, which have produced the crime and suffering which are constantly forced upon my attention in the painful discharge of official duties.

After long and earnest reflection, I am satisfied reliance cannot be placed upon prohibitory laws to eradicate these evils. Men may be persuaded-they cannot be compelled to adopt habits of intemperance.

I concur, with many of the earnest and devoted friends of temperance, in the opinion that it will hereafter be a cause for regret, if the interest which is now excited in the public mind upon that subject, should be diverted from its proper channels and exhausted in attempts to procure legislation which must be fruitless. HORATIO SEYMOUR.

OPINION OF·

JAMES W. GERARD, ESQ.

ON THE PROHIBITORY LIQUOR LAW.

My opinion has been requested by a committee of importers and dealers in foreign and domestic liquors, on various questions submitted by them, arising under the Prohibitory Liquor Law, passed at the last session of the Legislature, involving a construction of some of its provisions and the constitutionality of others. The first and second of these questions-viz:

1. What is the effect, extent, and application of the following words, at the conclusion of section one? viz: This section shall not apply to liquor, the right to sell which in this state is given by law any or treaty of the United States; and

2. If a right to sell any particular description of liquor is reserved and excepted, then is that right general in its nature, or is it limited and confined to any particular persons; and if so, to

whom?

I propose to consider together.

I am not aware that there is now in force any treaty or law of the United States in terms conferring the right to sell "liquor" in this state. The right of introduction, however, is independent of state legislation, and is permissively derived from the practical operation of treaties of commercial amity and intercourse subsisting between the United States and European nations, exporting wines and spirits from those countries into this, and the various provisions of the tariff acts. These latter confer the privilege of importation, and that privilege, it has been judicially determined, carries with it in favor of the original importer the unrestrictable right of sale.

The words, "This section shall not apply, &c.," therefore, in the position in which they stand, need not necessarily be construed as a declaration simply of a right which no state legislation could affect, but are entitled to receive a more extended application, founded on the context and the power of the Legislature, in relation to the interal traffic in ardent spirits of every kind. I understand it to be substantially established, by various decisions of the Supreme Court of the United States, that a state, in the exercise of its police powers, may, so far as internal traffic is concerned, regulate, even possibly to the extent of prohibition, the sale of any article which it may adjudge noxious or injurious to the health or morals of its citizens, even though the inhibited article