This proceeding was instituted under the provisions of the act for the prevention of intemperance, pauperism and crime. The sections which particularly relate to it are substantially these, omitting such parts as do not bear upon this case: "It shall be the duty of every sheriff, under sheriff, deputy sheriff, constable, marshal or policeman, to arrest any person whom he shall see actually engaged in the commission of any offence in violation of the 1st section of this act, and to seize all liquor kept in violation of said section, at the time and place of the commission of such offence, together with the vessels in which the same is contained, and forthwith to convey such person before any magistrate of the same city or town, to be dealt with according to law, and to store the liquor and vessels so seized in some convenient place, to be disposed of as hereinafter provided. It shall be the duty of every officer by whom any arrest and seizure shall be made, under this section, to make complaint on oath against the person arrested, and to prosecute such complaint to judgment and execution." (Laws of 1855, p. 340, § 12.) "All liquors and vessels in which they are contained, which shall have been found and seized in the possession of any person who shall have been arrested for violating any provision of the 1st section and not claimed by any other person, shall, upon conviction of such person of such offence, be adjudged forfeited." (§ 13.) When any liquor seized under any provision of the act shall be adjudged forfeited, as provided in any section of the act, it shall be the duty of the magistrate (after the determination is become final) forthwith to issue a warrant commanding that the liquor be destroyed. The officer to whom the warrant shall be delivered is to destroy it and make a *Page 407 return of the destruction, and then an execution is to be issued to sell the vessels which contained the liquor. (§ 10.) Every justice of the peace, police justice, county judge, city judge (certain other officers in New-York), and, in all cities where there is a recorder's court, the recorder, has power to issue process, to hear and determine charges, and punish for all offences under the act, and to hold courts of special sessions for the trial of such offences. The section proceeds: "Such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence under the act, but shall proceed to trial as soon thereafter as the complainant can be notified." Power to adjourn, for good cause, is given for not exceeding twenty days. At the time of joining issue, and not after, either party may demand trial by jury, in which case the magistrate is to cause a jury to be summoned and empanneled, as in other criminal cases in courts of special sessions. (§ 5.) No person who shall have been convicted of any offence against any provision of the act, or who shall be engaged in the sale or keeping of intoxicating liquors, contrary to the act, shall be competent to act as a juror upon any trial under any provision of the act. (§ 16.) Upon the trial of any complaint under the act, proof of the sale of liquor shall be sufficient to sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of sale. (§ 17.) A violation of any provision of the 1st section is made a misdemeanor. The guilty party is to forfeit all liquors kept by him in violation of the section, and is to be further punished by a fine of $50 for the first offence; for the second, by a fine of $100 and thirty days' imprisonment; for the third any every subsequent offence, by a fine not less than $100, nor more than $250, and by imprisonment for not less than three, nor more than six months. The defendant is likewise to pay all costs and fees provided in the act; and in default of payment of any such fine, costs and fees, or any part thereof, *Page 408 the defendant is to be committed until the same are paid "not less than one day per dollar of the amount unpaid." (§ 4.) Such is the machinery of legal process by which, according to the act, any person who violates the prohibition of the 1st section is to be brought to punishment, when the proceeding takes the form of a personal prosecution. Other and not less stringent and extraordinary methods of procedure are provided when the prosecution is directed against the liquor alone to procure its destruction. With these, however, we have in this case no cause to occupy ourselves.
The prohibitory clause itself, upon which these proceedings are founded, constitutes the 1st section. Omitting certain exceptions from the prohibition, which will be afterwards noticed, it provides that intoxicating liquor shall not be sold, or kept for sale, or kept with intent to be sold, by any person in any place whatsoever; that it shall not be given away, nor be kept with intent to be given away, in any place whatsoever, except in a dwelling-house, in no part of which any tavern, store, grocery, shop, boarding-house or victualing-house, or room for gambling, dancing, or other public amusement or recreation of any kind is kept; that it shall not be kept or deposited in any place whatsoever, except in such a dwelling-house as is above described, or for sacramental purposes in a church or place of worship; or in a place where either some chemical, or mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching the place of its destination. By an exception in this same section, liquor may be given away as a medicine by physicians pursuing the practice of medicine as a business, or for sacramental purposes. The section concludes with a provision that it shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States. *Page 409
By §§ 2 and 3, persons answering the description, doing the acts and taking the oaths prescribed therein, may be licensed to keep for sale, and sell intoxicating liquor and alcohol for mechanical, chemical or medicinal purposes, and wine for sacramental use. By § 22, the act is not to be construed to prevent the sale of cider in quantities not less than ten gallons; nor to prevent the manufacturer of alcohol, or of pure wine from grapes grown by him, from keeping or from selling such alcohol or wine, nor the importer of foreign liquor from keeping or selling the same in the original packages to any person authorized by the act to sell such liquors; nor to prohibit the manufacture or keeping for sale, nor the selling burning fluids of any kind, perfumery, essences, drugs, varnishes, nor any other article which may be composed in part of alcohol or other spirituous liquors, if not adapted to use as a beverage, or in evasion of this act.
The foregoing clauses contain, in substance, the prohibition of the act, with the exceptions which qualify its effect.
Two other provisions are necessary to be quoted, as they bear upon the rights which the owner of liquor has in it, and the modes in which he may assert those rights. The first is at the close of § 16, and declares "that 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 the act, or was lawfully kept and owned by him." The other clause is at the end of § 25, and provides that "all liquor kept in violation of any provision of the act shall be deemed and is hereby declared to be a public nuisance."
The question whether this act is within the authority conferred by the people of this state upon the legislature, or whether it is in conflict with the restraints which the people have in the constitution imposed upon the law-making *Page 410 power, is presented by the case before us. It is, perhaps, not absolutely necessary to the decision of the cause that we should pass upon this question in its broadest aspect. It has not been usual for the courts of the United States to consider questions of constitutional law, when the particular case before them could be disposed of on other grounds. I have no doubt that this practice is grounded upon a wise consideration of the delicate nature of the authority which courts of justice exercise in declaring the acts of the legislative power void, as being in conflict with the constitution. The practice, however, rests in the discretion of the judges, and may therefore be departed from when the public interests seem to require that course. It is not unknown to us that much controversy has existed in respect to the constitutionality of this law, and that the whole body of the community is divided in opinion upon it; that these different opinions are maintained with great ardor by those who entertain them, and that very important interests, both public and private, depend upon the solution which the question shall receive at our hands. The question has been presented to the supreme court, at different general terms, and conflicting decisions have resulted, so that no private person, nor any public officer, can say what is his duty in the premises. This state of things not only allows us to depart from the ordinary practice, but, in my judgment, makes it our imperative duty to consider and finally dispose of the questions involved.
In this state, all power which is exercised over the people is derived from them, whether it be legislative, executive or judicial; they have conferred it, or it can have no legal existence. To the legislature they have entrusted "the legislative power of this state," as the words of their grant declare. (Cons., art. 3, § 1.) In the same instrument they have imposed upon all the agents to whom they have committed the powers of government, certain restrictions, which, by the intrinsic and original power of the people, *Page 411 limit the exercise of authority. Some of these restrictions are, in terms, imposed upon the legislative power; others, equally restrictive upon legislative and executive authority, are expressed in form of declarations of rights belonging to the people.
In my judgment, legislative power is subject to no other control. In every organized society there must exist, somewhere, an ultimate power of determining what the interest of the people requires, which power having been exercised, the decision is subject to no review, save by the whole body of the society. Upon no part of human action does the law operate more directly or more legitimately than in respect to actions which are regarded as hostile to the public welfare. In respect to such actions, where no constitutional limit is imposed upon legislative power, legislation is supreme. The right to make such laws lies at the very foundation of society, and is entrusted, and ought to be entrusted, as I think, to the law-making power. The determination as to what actions shall be forbidden, necessarily involves discretion, to be exercised in view of all the circumstances which, at the time, are operating upon the welfare of the people. Of such questions, the legislature which exercises the power of the people, which is in immediate communication with them, which knows both their desires and their needs, is the ultimate judge. I am speaking solely of the question of power. I am not to judge of the wisdom of the laws under review, or of their reasonableness or abstract justice. Sitting in the exercise of mere judicial power, which is strictly limited to answering the question, what is the law, and has not been entrusted with saying what it ought to be, I have no authority to weigh the justice of legislation, and to allow or disallow it as I shall find the scale to turn. Certainly, that which the interest and welfare of the people required to be made law was proper to be enacted, and was within the scope of legislative power, if no constitutional inhibition exists *Page 412 If a court is to judge of such a question at all, it must go over the same field upon which the legislature has acted. It must consider the occasion of the law, the existence of the evil, the suitableness of the remedy. "A person exercising a judicial capacity is neither to apply to original justice, nor to a discretionary application of it. He goes to justice and discretion only at second hand, through the medium of some superiors. He is to work, neither upon his opinion of the one nor of the other, but upon a fixed rule, of which he has not the making, but singly and solely the application to the case." Whether a given action shall be prohibited, and under what penalty, whether loss of life, or liberty, or of fine, must depend upon an infinite variety of facts, and upon the consideration of the evil the action occasions or is likely to occasion to the people. What machinery has a court of justice, sitting to determine questions of law, with which to investigate such a question? Upon this subject, I can add nothing to the strength and clearness with which that, which I regard as the true legal view of the powers and duties of judges, is stated by Senator Verplanck, in Cochran v. Van Surlay (20 Wend., 381): "It is difficult, upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority. There are, indeed, many dicta, and some great authorities, holding that acts contrary to the first principles of right are void. The principle is unquestionably sound, as the governing rule of a legislature in relation to its own acts, or even those of a preceding legislature. It affords a safe rule of construction for courts, in the interpretation of laws admitting of any doubtful construction, to presume that the legislature could not have intended an unequal and unjust operation of its statutes. Such a construction ought never to be given to legislative language, if it be susceptible of any other more conformable to justice; but if the words be positive and without *Page 413 ambiguity, I can find no authority for a court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions, limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law, settled by the deliberate wisdom of the nation, that I can find a safe and solid ground for the authority of courts of justice to declare void any legislative enactment."
From a pretty early period the evils of drunkenness have attracted legislative attention. Frequent instances of legislation on the subject are to be found among the English and our colonial laws. With these examples, and with the constant practice of our own government in restraining sales of liquor in small quantities except by license, I feel it difficult to understand how it can be maintained that the use of intoxicating liquors is not a subject upon which legislation can constitutionally take place to prevent injuries to the health and morals of the people; and if it is a proper subject of legislation at all, I do not know where is to be found (unless in the constitution) any fixed rule by which a court can undertake to say that the absolute prohibition of the use of liquors, as a beverage, would be beyond the authority of the legislature. Nor do I find in the constitution anything which can be applied to restrain the passage or affect the validity of such a law. Certainly neither the declaration that "no person shall be deprived of life, liberty or property, without due process of law," or that other, "no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers," would have any application to such a law. The right to drink liquor stands upon no higher ground than the right to do many other things which the legislature finds contrary to the public welfare, and can scarcely be secured under those general words, unless upon grounds that would completely tie the hands of the legislature *Page 414 from nearly all interference with the conduct of men. But the legislature have not seen fit to put their legislation into this form. They have not directly prohibited the use of liquors as a beverage, but have attempted to bring about the result which they had in view, by forbidding substantially the traffic in liquors, except for other purposes than drinking. This prohibition, if enforced, would have a clear tendency to prevent the use of liquors as a drink, because it would render the procurement of them for any such purpose nearly impossible, unless the seller should violate the law. Indeed, the only ways in which liquors could be procured by purchase by any person, without an infraction of the law by some one, upon the construction put by the prosecution upon the terms of the present act, would be either to manufacture them, or perhaps to buy from an importer, in the original packages of importation. If the law in question went no further than to impose such a prohibition upon sales, operating alike upon all the inhabitants of the state, I should find it difficult to say that it, by its own mere force, deprived any person of his liberty or property, within the meaning of the constitution. Such a law would clearly diminish the value of the property, nay, almost deprive it of value, and render it nearly useless, within this state for the purposes of traffic, for which it was mostly acquired, but it would not touch the thing, nor would it destroy the property, considering that term in its legal sense, as descriptive of those rights which men acquired to and over things, and which constitute the legal notion of property.
It is quite obvious that the end which the legislature had in view, assuming that to have been the prevention of the evils of drinking may be attained by direct and also by indirect measures. For instance, prohibiting intoxication would be one means; prohibiting drinking at all would be another, one degree more remote; prohibiting the sale for drinking is still more remote. So legislation may be carried *Page 415 on farther and farther from the object directly in view; as by prohibiting the sale for any purpose; prohibiting the manufacture; prohibiting even the existence of liquor; or even of those things from which liquors can be procured. Now, though the general purpose is entirely legitimate and within the scope of legislative authority, and though direct legislation for the attainment of that end might be free from objection, yet it by no means follows that measures operating remotely, though conducive to the end in view, may not violate the restraints of the constitution.
The purpose, origin and history of declaratory bills of rights are admirably stated by Chancellor Kent, in his Commentaries (2Kent's Com., § 24, p. 1). After stating that the absolute rights of individuals may be resolved into the right of personal security; the right of personal liberty; the right to acquire and enjoy property; he says: "These rights have been justly considered and frequently declared, by the people of this country, to be natural, inherent and inalienable." After showing how early and how strenuously they were asserted by our colonial ancestors, he says, that "upon the formation of the several state constitutions, after the colonies had become independent states, it was in most instances thought proper to collect, digest and declare, in a precise and definite manner, and in the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind." (Id., 7.)
"But the necessity in our representative republics of these declaratory codes has been frequently questioned; inasmuch as the government, in all its parts, is the creation of the people, and every department of it is filled by their agents, duly chosen or appointed according to their will, and made responsible for maladministration. It may be observed, on the one hand, that no gross violation of those absolute private rights which are clearly understood and settled by the common reason of mankind is to be apprehended *Page 416 in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can be easily sacrificed under the forms of law. On the other hand, there is weight due to the consideration that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion; and to render it more quick to detect and more resolute to resist attempts to disturb private right. It requires more than ordinary hardiness and audacity of character to trample down principles which our ancestors cultivated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, showing their title to protection." (2 Kent's Com., 8.)
The clauses of the bill of rights, before cited, together with the provisions in respect to jury trials, contain the substance of the provisions of chap. 29 of Magna Charta. These clauses have always received a large and liberal interpretation in favor of private rights and against power.
The expression, "by the law of the land," is interpreted by Lord Coke to mean "by the due course and process of law" (2Ins., 46); and this last expression is afterwards expounded to mean by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original at the common law. (2 Ins., 50.) In Taylor v. Porter (4 Hill, 140), and in Embury v. Conner (3 Coms., 511), the meaning of these words was considered by Bronson, J., in the supreme court, and by Jewett, J., in this *Page 417 court, and they agree in the opinion that, at the least, "due process of law" imports a judicial trial, and not a mere declaration of legislative will by the passing of a law. They agreed further, in holding as both those courts held, that though private property could be taken for public use upon just compensation, yet for uses not public it could not be taken at all, neither by an act of legislation, nor in any other manner; or, as Judge Bronson expressed himself, speaking with reference to the case of Taylor v. Porter, which presented the question of the constitutionality of taking a man's land to make a private road, "when one man wants the property of another, I mean to say that the legislature cannot aid him in making the acquisition." The same doctrine, in substance, as to the authority of the legislature, was affirmed in this court in Powers v. Bergen (2 Seld., 358), where the question arose upon an act of the legislature authorizing a sale of lands by trustees not authorized by the will creating the trust. No necessity for the act of the legislature appeared either in the statute or aside from it, either on account of the infancy or other incapacity of the persons living who had vested or contingent interests in the estate, and the court held that the act was not within the powers delegated to the legislature, and that the sale in pursuance of it conferred no title. In that case Judge Jewett, who gave the opinion of the court, cites with approbation the language of Judge Story, in Wilkinson v. Leland (2 Peters, 657), who says: "The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights *Page 418 so vital to their security and well-being, without very strong and direct expressions of such an intention." The same construction was again given to these words, "due process of law," by Denio and Edwards, Js., giving the opinion of this court in Westervelt v. Gregg (2 Kern., 202). I do not refer to these cases as deciding that now before us, but only to show that without judicial investigation, without "due process of law," no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property.
An admirable statement of the constitutional doctrine as to the power of the legislature, both in the punishment and in the creation of offences, is contained in the opinion of Chancellor Sanford, in Barker v. The People (3 Cow., 686): "The power of the legislature in the punishment of crimes is not a special grant, or a limited authority to do any particular thing, or to act in any particular manner. It is a part of `the legislative power of this state,' mentioned in the first sentence of the constitution. It is the sovereign power of a state to maintain social order, by laws for the due punishment of crimes. It is a power to take life and liberty, and all the rights of both, when the sacrifice is necessary to the peace, order and safety of the community. This general authority is vested in the legislature; and as it is one of the most ample of their powers, its due exercise is among the highest of their duties. When an offender is imprisoned, he is deprived of the exercise of most of the rights of a citizen; and when he suffers death, all his rights are extinguished. The legislature have power to prescribe imprisonment or death as the punishment of any offence. The rights of a citizen are thus subject to the power of the state in the punishment of crimes; and the restrictions of the constitution upon this, as upon all the general powers of government, are, `that no citizen shall be deprived of his rights, unless by the law of the land or the judgment of *Page 419 his peers; and that no person shall be deprived of life, liberty or property, without due process of law.'" "The power of the state over crimes is thus committed to the legislature without a definition of any crime; without a description of any punishment to be adopted, or to be rejected; and without any direction to the legislature concerning punishments. It is, then, a power to produce the end by adequate means; a power to establish a criminal code with competent sanctions; a power to define crimes, and prescribe punishments by laws, in the discretion of the legislature. But though no crime is defined in the constitution, and no species of punishment is specially forbidden to the legislature, yet there are numerous regulations of the constitution which must operate as restrictions upon this general power. The whole constitution must be supported, and all its powers and rules must be reconciled into concord. A law which should declare it a crime to exercise any fundamental right of the constitution, as the right of suffrage or the free exercise of religious worship, would infringe an express rule of the system, and would therefore not be within the general power over crimes. Particular punishments would also encroach upon rules and rights established by the constitution. Though the legislature have an undoubted power to prescribe capital punishment, and other punishments which produce a disability to enjoy constitutional rights, yet a mere deprivation of rights would, even as a punishment, be in many cases repugnant to rules and rights expressly established. Many rights are plainly expressed, and intended to be fundamental and inviolable in all circumstances. A law enacting that a criminal should, as a punishment for his offence, forfeit the right of trial by jury, would contravene the constitution, and a deprivation of this right could not be allowed in the form of a punishment. Any other right, thus secured as universal and inviolable, must equally prevail against the general power of the legislature to select and prescribe punishments. *Page 420 These rights are secured to all; to criminals as well as to others; and a punishment, consisting solely in the deprivation of such a right, would be an evident infringement of the constitution; and all punishments which do not sub vert such rules and rights of the constitution, are within the scope and choice of the legislative power."
The legislature, then, has power to create offences, and to declare in what cases the consequences of loss of life, of liberty or of property, shall be attached to the commission of offences, they being ascertained "by due process of law" to have been committed. But the form of this declaration of right, "no person shall be deprived of life, liberty or property, without due process of law," necessarily imports that the legislature cannot make the mere existence of the rights secured the occasion of depriving a person of any of them, even by the forms which belong to "due process of law." For if it does not necessarily import this, then the legislative power is absolute.
To provide for a trial to ascertain whether a man is in the enjoyment of either of these rights, and then, as a consequence of finding that he is in the enjoyment of it, to deprive him of it, is doing indirectly just what is forbidden to be done directly, and reduces the constitutional provision to a nullity. For instance, a law that any man who, after the age of fifty years, shall continue to live, shall be punished by imprisonment or fine, would be beyond the power of the legislature. It would be so, upon the ground that he cannot be deprived of life, liberty or property, without due process of law, and that the right to live and not be punished for living was put by the declaration of right beyond the power of legislative interference. Upon the same principle, a law which should make it a crime for men either to live in, or rent, or sell their houses, would fall within the same prohibition upon legislative authority. There may, then, in respect to offences attempted to be created by legislation, a question arise capable of being *Page 421 considered by courts of justice, whether the thing forbidden is an essential part of either of those secured private rights, so essential that without it the right cannot exist at all. Such a question is undoubtedly of the most delicate nature, as well looking to the wide authority of legislation, as to the intrinsic difficulty of distinguishing between the exercise of the clearly existing power to regulate the manner of enjoying these rights and the exercise of an absolute and prohibited power directly to infringe upon them. A court of justice may well hesitate before such a question, and yet is bound to meet it when presented. A similar case of difficulty has arisen in the courts of the United States, in respect to the acknowledged power of the states to regulate remedies for the enforcement of contracts, and the power prohibited to them by the constitution of the United States, of impairing by law the obligation of contracts. There the remedy and the obligation so run into each other, that to draw a line between them seems almost impossible; yet the duty has been performed, and it has been held that, though the remedy may be altered by the state legislature, yet that a substantial and reasonable mode of enforcement, in the ordinary and regular course of justice, must be given to the party injured by the breach of the contract. The cases are stated and examined inMorse v. Gould (1 Kern., 281). The rule is necessarily indefinite, for the conflicting rules so blend together in practice, that no other than an indefinite rule is possible. The same sort of question is presented in respect to the infringement by legislation of men's private rights, and the regulation of them, and their enjoyment. The substantial right cannot be destroyed; its enjoyment is not an offence, and legislation cannot make it an offence. At the same time the mode of enjoyment, in its broadest sense, is subject to legislation, though it be affected very injuriously, provided a substantial right is left. Now, in respect to liquors, no lawyer can doubt that on the 3d of July they were property, *Page 422 in which the owner had the same right as in any other article of personal property; nor that since that time they remain property, and that as such they come under the protection which the constitution affords to property. The power of disposition or use in some way, or at least the right to keep and preserve, enters into every notion of legal property. To destroy the power of sale alone does not indeed physically destroy the property, though it takes from it that quality which gives it its chief value and for which its possession is mainly desirable. Still I am not prepared to say that the legislature may not, under the constitution, take away the right of sale to the extent which this act contemplates. But by a general prohibition of sale, irrespective of quantity, and person and purpose, coupled with a prohibition even to keep it, except in a dwelling-house, where no store, c., is kept, and in places where certain arts and trades are carried on, the legal existence, which the law and the constitution designate as property, is in my judgment broken up, and the private injury is as completely effected as if the thing itself were physically taken away.
The constitution does not make it a condition, on which its protection is extended to property, that its owner shall also own a dwelling-house. They who owned liquor on the 3d of July, and who did not own or could not procure the use of a dwelling-house or other excepted place, were, without any act done on their part, made guilty of a misdemeanor, punishable by fine and forfeiture, unless they destroyed that which, by the same law, was recognized as property. Allowing it to remain where it happened to be was constituted an offence, and there was no way of escape except by destroying the property; for the power to sell, even to persons licensed to sell again, was taken away. That it may appear that this is no overstatement of the case, I will shortly restate the provisions of the law. With the trifling exceptions before granted, liquors are forbidden *Page 423 to be sold, or kept with intent to be sold, or to be given away, or kept with intent to be given away, except in a dwelling-house, where no tavern, store or place of amusement is kept; or to be kept or deposited anywhere save in such a dwelling-house, or in a church for sacramental purposes, or in some place where a chemical, mechanical or medicinal art is carried on as a business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching its place of destination. In addition to these prohibitions, which together constitute a single scheme for dealing by law with this species of property, liquor kept contrary to them is declared to be a nuisance, and for an injury to it, or the taking it away from the owner, he can maintain no action, unless he proves that it was "lawfully kept and owned by him;" and as this lawfulness is made to depend, among other things, in all cases upon the non-existence of an intent to sell, and in some cases upon the non-existence of an intent to give it away, the nearly impossible burthen of making out these negatives is thrown upon the owners. This scheme taken together, in my judgment, is a scheme not of regulation, but of legal destruction of property, which, as much as any other, was under the protection of the constitution. It does not in its effect come short of a law authorizing any officer, or any one, directly to destroy the liquor. Between directly authorizing the destruction, and telling the owner that he shall be fined, and his property destroyed also, if he does not anticipate the action of the law and destroy it himself, I cannot distinguish. If such a law as to liquors can stand, the same provisions may be made as to any other property; and if such be the power of the legislature, those words, "no person shall be deprived of life, liberty or property, without due process of law," are no longer deserving of a place "among the muniments of freemen as showing their title to protection." *Page 424
There is no doubt a seeming anomaly in the result to which I have come, that mere rights of property should stand in the way of criminal legislation. The only solution of the difficulty is to be found in the consideration that it may not have occured to the convention who framed, or to the people who adopted the constitution, that, in one and the same legislative act, an article which had always before been regarded as property, might be recognized as useful for some purposes, not dangerous in itself, nor evil unless used as a drink, capable of sale by some people, and the subject of property in the hands of every one who lawfully acquired it, and yet, that the public interests might be deemed to require that the lawful owner should neither sell it, irrespective of his intent in selling it, nor keep it, irrespective of his intent in keeping it, unless he could procure a mere dwelling-house to keep it in, on pain of fine and imprisonment and forfeiture. Had such a contingency occurred to them, it is altogether probable that they would have provided for it, either by narrowing the protection which the constitution extends to property, equally with life and liberty, if they deemed that expedient, or possibly by providing expressly for such legislation.
The prohibitions of the first section, taken together, and they form but a single scheme and are to be enforced by the same penalties, cannot therefore, in my judgment, be upheld, at least in respect to property which had been acquired while there was no prohibition against the acquisition of such property. The future acquisition the legislature might, in my opinion, control, and I am not disposed to deny that they could have subjected such future acquisitions to the prohibitions this act imposes. But in this act they have made no discrimination. The provisions extend and were clearly meant to extend to all liquors. It is no part of the proof to make out the offence according to the statute, to show that the liquors were acquired after the prohibitions became operative, nor is the fact that they *Page 425 were previously acquired any defence under the statute. The only way of defending against it, on the ground in question, is by asking to have it declared void. Laws in relation to civil rights are sometimes held to be unconstitutional, in so far as they affect the rights of certain persons, and valid in respect to others. This is done mainly upon the ground that the courts will not construe them to relate to such cases as the legislature had not power to act upon. To statutes creating criminal offences, such a rule of construction ought not to be applied, and I cannot find any trace of its ever having been applied. It is of the highest importance to the administration of criminal justice, that acts creating crimes should be certain in their terms and plain in their application; and it would be in no small degree unseemly that courts should be called upon, in administering the criminal law, to adjudge an act creating offences at one time valid and at another time void. It must, I think, stand as it has been enacted, or not stand at all. In my judgment, therefore, the 1st section of the act in question, with the penal clauses founded upon it, ought to be declared void.
The next question is as to the process of trial, condemnation, forfeiture and punishment, which the act introduces. I doubt much whether the clause of the bill of rights, that no person shall be deprived of life, liberty or property without due process of law, necessarily imports a jury trial as part of all due process. If it does, then, unless all civil proceedings are out of the preview of the provision, and they were not thought to be inTaylor v. Porter (4 Hill, 140), and Embury v. Connor (3Coms., 511), it seems difficult to say on what grounds equity proceedings, in which trial by jury is quite unusual, and by which men are often deprived of property, can be sustained. The right to jury trial is secured by other sections of the bill of rights. If this portion gives it in all cases, then the others can hardly stand with it. For, on looking at them, it is apparent that *Page 426 jury trials were intended to be continued where they had existed, and that cases were contemplated in which jury trials did not and would not exist. I incline to the construction which Chancellor Kent gives in his Commentaries, that "the better and larger definition of due process of law is, that it means law in its regular administration through courts of justice." (2 Kent, 13.) But it is not necessary, in my opinion, to pronounce upon this question, because the first part of art. 1, § 2 of the constitution, viz: "The trial by jury in all cases in which it has heretofore been used shall remain inviolate forever," is broad enough and efficacious enough to secure it. The expression, "in all cases in which it has heretofore been used," is generic. It does not limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterwards arise. For instance, felonies were triable only by jury. I do not doubt that all new felonies must be tried in that way, and that by force of this section; for § 6, which provides that no one shall be held to answer for a capital or otherwise infamous crime, except on indictment or presentment of a grand jury, does not, in terms, require a jury trial of the issue on the indictment. The other section does require it, as well in new felonies as in old, because they belong to the class of cases in which, at the adoption of the constitution, such a trial was used. Applying the principle to this case, we find that, from 1830 at least, misdemeanors by violation of the excise laws were not triable in courts of special sessions at all (1 R.S., 682, § 25; 2 R.S., 711, § 1), but in courts of general sessions, or of oyer and terminer, which were courts proceeding according to the course of common law. And moreover, even in cases of offences where the special sessions had jurisdiction, the defendant might always, by giving bail, at least after 1830, secure to himself a right to trial by jury in the other courts. It does not at all affect this argument to say, at an earlier period jury trial was not a right in such cases. The course of the law is to enlarge *Page 427 private right, not to restrict it. When jury trial was given for the first time in such cases, it was bestowed because the legislature desired to extend its protecting influences, and when afterwards the new constitution was adopted, jury trial, in cases where it was then accustomed, received the sanction and protection of the organic law. Writings are to be construed as to the time when they are made; and "heretofore," in this clause, means before 1846, and cannot, to limit its meaning, be carried back to 1777, and confined to the cases which, at that earlier period, were triable by jury.
This act provides that offences prosecuted personally against the offender, and for which he is punishable by fine, by forfeiture and sometimes by imprisonment, shall be tried by any one of numerous inferior magistrates, either without a jury at all, or by a jury of six men, with very peculiar qualifications. (Laws of 1855, chap. 231, §§ 5, 16.) This is not what the constitution means by jury trial. (Cruger v. Hudson R.Railroad, 2 Kern., 190.) That must be, within the terms of the constitution, a jury of twelve men. The act is entirely inconsistent with the idea that the magistrate is to let the defendant to bail, to answer at another criminal court. Its direction is that he is not to take the examination of the defendant, but is to proceed immediately to a trial, and he is to give judgment, and from his judgment an appeal lies. He can, according to the act, proceed only for the purpose of determining upon the guilt or innocence of the accused, and constitutionally this power could not be conferred upon him; the whole provision, which was made only with a view to this kind of trials, and not for the purpose of holding the offender to answer elsewhere, must fall.
It follows, that the act conferred no jurisdiction upon the magistrate to try the defendant, and that the judgment of the supreme court, reversing that of the justice, must be affirmed. *Page 428