in favor of acknowledged rights. They are the protections equally of social, political, and personal liberty, and of private property. They are to be largely and liberally expounded; they are derived from Magna Charta, and are in modern but broader language, repetitions of its most important provisions.

What then is the liberty meant in the Constitution? Is it mere absence of imprisonment, or does it reach to some protection in the employments of freemen? Does it in any degree reach liberty of action, freedom of industry? Freedom to earn a support by the ordinary and long recognized modes of industry and liberty is the term of the common law, as such it appears in Magna Charta. To that, and the early commentaries on it, we are to look for light as to the true import of these provisions adapted from it. In examining this great statute with the commentary of Lord Coke on it, the protection to the free exercise of trade is as evident as any of its principles. In commenting on this section relating to life, liberty, and property,

Ch. 29, 2 inst., 47.

speaking of "liberties," Lord Coke says, "it signifieth the freedom that the subjects of England have. For example, the company of merchant tailors of England having power by their charter to make ordinances, make an ordinance that every brother of the same society should put the one half of his cloths to be dressed by some clothworker of the same company on pain of forfeiting ten shillings, it was adjudged that this ordinance was against law, because it was against the liberty of the subject, for every subject hath freedom to put his cloths to be dressed by whom he will-et sic de similibus."

So, likewise, if a grant be made "to any man of the sole making of cards, or the sole dealing with any other trade, that grant is against the liberty and freedom of the subject that before did, or lawfully might have used that trade, and consequently against this Great Charter. Generally all monopolies are against this Great Charter, because they are against the liberty and freedom of the subject and the law of the land.

The great commentator in the same chapter treats of the other things protected, life and property.

It thus appears that when life, liberty, and property are spoken of in view of their protection, the ordinary trades and occupations by which property is acquired, life supported and industry favored, are equally taken into view. Of what avail would a theoretical liberty be if the occupations of men, practiced and sanctioned from their earliest union in society, were to be pursued only at the mere discretion of the sovereign power? How capricious the provision which would protect an acre of land, and leave unprotected from despotism a business made valuable by years of industry, and entered upon with the sanction of immemorial usage? It is, therefore, a sound construction, both on principle and on authority, that the clause of our state Constitution-hold

ing its protection over life, liberty, and property, includes in its safeguard the established and usual trades and occupations of men; and that if life or property are protected from capricious and tyrannical legislation, such pursuits of industry are equally so. What is meant by due process of law? Is a law declaring an act, which has been beyond the reach of memory held innocent, and which has undergone no change in its character, a crime, is it due process of law? If it is, the whole provision of the Constitution as a limit on the Legislature is idle. If their mere declaration is due process of law, they can do any thing. They may declare a man a felon, and by such due process of law he is so. They may proscribe a body of men, a trade, by declaring their work a nuisance. They may take his land or goods by a legal confiscation, and this also would be due process of law. This cannot be; nor does due process of law merely relate to mode of trial, although doubtless it does embrace those principles as to accusation, mode of evidence and trial, which are by the common law in criminal cases the protection of the accused. He must be informed of the charge, and be permitted freely to answer it. He must be subjected to no arbitrary modes of proof. He must have a fair trial. But all these would be a slight protection if the sovereign power could create offences upon ground new and before unknown. The citations from Lord Coke, show that not only modes of proceedings in courts, but modes of industry and trade in common life, are within this great protecting principle, and in my judgment, all the substantial principles protecting life, liberty, (including the use of trades always before held lawful,) and property, recognized by the common law, are made sacred by the Constitution of our state, against mere arbitrary legislation.

It is by no means true, that the Legislature may not modify in circumstance and in form, any common law proceedings relating to life, liberty, and property; but they cannot impair it in its substance or essential part. They may apply an old principle to new cases. They may under a change of circumstances by which acts once harmless have become hurtful, make them crimes. But they cannot in a mere change of opinion in themselves, violate an old liberty, make an act, always before deemed innocent and confessedly unchanged, a crime, and visit it with forfeiture or infamy. In analogy to the provision in the Constitution of the United States as to contracts, states may modify remedies, but may not impair the substantials of an obligation; so under the limitations we are considering, the Legislature may change matters of form and apply old principles to new cases; they cannot substantially destroy or impair old principles which concern life, liberty, or property.

The Legislature, in passing any law, are supposed to consider the constitutional restriction on their own power. But their action is not conclusive. If it were, the restriction would be nugatory, and never could avail. The matter is open until disposed

of by the ultimate constitutional arbiter, the Judiciary, and as laws are presumed to rest not on the personal and private notion of individuals, but upon the public facts, the public condition and changes in society, these are evidently as much within judicial knowledge and cognizance as within legislative. On such knowledge the Judiciary always act in expounding a new law, they look at the open public mischief for which the proposed law is

devised.

Is, then, the keeping of liquor for sale a nuisance by the common law, or has it been so since the date of Magna Charta? It curiously appears that the twenty-fifth chapter of that act provides, "one measure of wine shall be through our realm, and one measure of ale, and one measure of corn, "&c. It is of undeniable notoriety that the sale of malt and distilled liquors has for ages been part of the trade of the world, lawful and every way recognized. It has undergone no change in its effects or consequences. Every reason for calling it a nuisance which exists now, existed hundreds of years ago. If it can now be declared a nuisance, so may any thing, so far as the acceptation and practice of society is considered to legalize it; and yet these are the bases of our common rights. To create it now a nuisance or a misdemeanor, is not applying an old principle to a new case, nor making a change, in any sense, of mere form and circumstance. It is violating the modes of industry of vast numbers, who have had the sanction of time, usage, law, and the universal consent of the world.

For the abuses arising from the sale of liquor, when they occur, the law has always provided remedies, preventive and consequential. They are warranted by the principles of the common law. But to create the trade itself a nuisance, without any of the circumstances which the law has ever before treated as an abuse, is mere despotic legislation, and unwarranted by the Constitution of this state.

It also seems to me, upon similar principles, that the monopoly in effect of the sale of liquor is objectionable.

The provisions preventing a man charged with an offence from claiming his property, without an oath as to his guilt or innocence, is compelling him to accuse himself, in violation of a substantial principle of liberty, protected by the above provisions of the Constitution.

The provisions of the revenue laws bear no analogy to cases of this kind. In regulating the admission of persons or goods from abroad, before they become part of the population or business of the country, the revenue power is unlimited, and may subject them to any conditions, however arbitrary. Revenue laws have always been most arbitrary.

In my opinion, the law, in its main features, is invalid as an invasion of the Constitution. It is therefore needless to criticise its special defects. DANIEL LORD.

New York, May 22, 1855.

OPINION OF

JAMES R. WHITING, ESQ.

ON THE PROHIBITORY LIQUOR LAW.

THE right of an individual to manufacture and sell intoxicating liquor, as an article of commerce and merchandise, cannot be questioned. It is a common inherent right. This right may be regulated or taxed by an excise duty imposed by Congress, but not by the states.

Article one, section eight, sub-division one, of the Constitution of the United States, declares that Congress shall have power "to lay and collect taxes, duties, imposts, and excises; but all duties and excises shall be uniform throughout the United States." The power of imposing taxes, other than on imports, exports, and excises, the states possess concurrently with Congress; but the states have no power to lay imposts or excises. If they had this power, the uniformity could not be maintained. The power conferred upon Congress, as to excises as well as imposts, is for this reason essentially exclusive. An excise duty is a specific tax upon the article, and when in its liquid form upon its measurement, whether it be an article of import, export, or to be consumed at home.

This rule of exclusive interpretation, in regard to the delegation of power upon Congress under the Constitution of the United States, has been adopted in regard to the judical power conferred upon the courts of the United States. The Constitution declares that the judicial power shall extend to all cases affecting ambassadors and consuls, and that in those cases, "the Supreme Court shall have original jurisdiction." Under this provision, the Supreme Court of the United States has decided, that the state courts have no jurisdiction over consuls, the power conferred being essentially exclusive. So in regard to that section, (thirty-four,) to establish an "uniform" rule of naturalization and "uniform" laws on the subject of bankruptcies; the uniformity of the rules in these cases is held to render the power conferred necessarily exclusive. No more uniformity is required in regard to these latter powers than in the levy and collection of duties, imposts, and excisesthe uniformity required in all those cases being the same. Hence, probably, arises the fact, that in this state no excise law, at least in regard to strong or intoxicating liquor, has ever been passed by the Legislature.

Although the statutes of our state regulating the sale of liquor are denominated excise laws, they are really nothing more than license laws. This distinction existed in England when the wine licenses were a breach of the king's revenue, and were settled on the crown in the twelfth year of the reign of Charles the second, and, together with the hereditary excise, made up the equivalent in value for the losses sustained by the prerogative in the abolition of military tenures, and belonged to the ordinary revenues of the king. The excise, as a separate and distinct duty, was imposed by Parliament, and given to the king as a part of his extraordinary revenue. Our former statutes, as police regulations, affected to regulate the sale of strong or spirituous liquors by retail, through the instrumentality of a license, this being a power not delegated to the United States by the Constitution, nor by it prohibited to the states. They were not laws of prohibition, nor of revenue. They neither touched the manufacturer, importer, nor wholesale dealer. Between imported and domestic liquors they made no distinction-these articles being alike under the control and protection of the same system.

Indeed, the Massachusetts acts are entitled, one, "The regulation of licensed houses;" the other, "An act concerning licensed houses and the sale of intoxicating liquors." They regulated the sale-they provided what they professed to call a license systemthey were internal police regulations, and were so treated in the celebrated case in fifth Howard, and are there called "the License cases." Our laws were simply internal police regulations, intended to restrain the indiscriminate sale of liquor, and to control and modify the evils arising from intemperance. Thus stood the law on the ninth of April, 1855, when the law in question was passed. Passing for the present all question of power under the Constitution, let us examine some of the provisions of this new act.

Its purview and declared intent is to prevent the sale of intoxicating liquor "to be used as a beverage." It strikes at the 66 use.' It is neither a license nor an excise law. It abolishes licenses. It authorizes an agency "to sell" intoxicating liquor, to be used for any purpose save" one." It is composed of twentysix sections. The twenty-fifth was born on the day of its travail. The second section came into operative existence on the first day of May, just three weeks after, and the balance of it is to have vitality on the fourth day of July next. Such a labored birth the Legislature seemed to think befitting such a hydra-headed monster. It is then to come into the full stature and proportions of a law for the government of a free, and, it is to be hoped, a lawloving and a law-abiding people. Its full advent is to cast its dark and foreboding shadows over the state on its natal day, when the shackles of a similar despotism were sundered; when the political equality of men was declared; when life, liberty, and the pursuit of happiness were declared to be among the inalienable rights of men; when it was declared that a long train of