The question which lies at the threshold of this case, and which should be determined in advance of every other, is whether the act for the prevention of intemperance, pauperism and crime, considered in reference to its object, the means adopted to secure that object, and its alleged effect in virtually annihilating a large amount of property, is void, as being without the pale of legislative power. It is claimed, 1. That irrespective of any positive restrictions, the principles of natural equity and justice set bounds to the power of the legislature, which are transcended by this law; and 2. That it is in conflict with the express provisions of the constitution.
In examining this subject, speculative opinions in regard to the wisdom of the act, or the beneficial results likely to flow from it, can have nothing whatever to do with a question which depends upon abstract principles of governmental law; principles which cannot be moulded to meet the views or interests of any portion of the people. It is a question not of expediency, but of power.
Every sovereign state possesses, within itself, absolute and unlimited legislative power. It is true that, as government is instituted for beneficent purposes and to promote the welfare of the governed, it has no moral right to enact a law which is plainly repugnant to reason and justice. But this principle belongs to the science of political ethics, and not that of law. There is no arbiter, beyond the state itself, to determine what legislation is just. Whatever, therefore, is so declared by the ultimate power of a state, as there can be no appeal, must, in view of the law, be taken to be just and right. The union of the functions of making and deciding upon laws constitutes, of necessity, absolute legislative power. While, therefore, the right of a sovereign state to pass arbitrary and tyrannical laws may, its legal power cannot be denied. This is self-evident, and needs no proof. I speak, of course, of a state as a whole, *Page 429 where all its powers are concentrated in the hands of the people at large, or of one or more of its members.
It follows that if a society or people, wishing to form an organized government, should simply create the three essential departments, vesting the whole executive power in one, the legislative in another, and the judicial in a third, as the three departments combined would possess all the powers which belong to the people in their collective capacity, the legislative department could make any law which the people themselves could have made, arbitrary or otherwise; unless, under such a distribution of the governmental powers, some authority is vested in the judiciary, to pass upon the propriety or justice of the laws.
But it is evident that this is a legislative and not a judicial power. It is necessarily to be exercised, in the first instance at least, when the law is passed, and obviously constitutes the most essential portion of the duty of the legislature itself. To suppose the same power vested in the judiciary, tends to confound the distinction between the two departments. Besides, when exercised by the latter, it becomes a supervisory and appellate power, and thus virtually subversive of all legislation. It is clear, therefore, in my judgment, that in a perfectly natural and simple distribution of the governmental powers, it is not within the province of the judiciary to pronounce any act of the legislature void. It may, however, acquire this right through an artificial distribution of those powers, by means of the organic law.
Let us look, then, at our state constitution. Section 1, art. 3, declares that "The legislative power of this state shall be vested in a senate and assembly." This means, of course, the whole legislative power. The words are general and unlimited; nothing is reserved. It was decided by this court, in the case ofBarto v. Himrod (4 Seld., 483), that the people had parted with all their power of legislation, except in the single case provided for in art. 7, § 12. *Page 430
Why, then, as it has been shown that the people could make any law, just or unjust, is not the legislature equally absolute? It is because, by other clauses in the constitution, hereafter to be noticed, a portion of this absolute power has been transferred to the judiciary. Not, it is true, in direct terms; but the constitution being the result of legislation by the people themselves, before parting with their power, is the paramount law. When, therefore, any law passed by the legislature conflicts with this, the judiciary pronounces between them, as it does between the acts of two successive legislatures, and the paramount law prevails. It will be seen that in this mode a restriction upon the power of the legislature is effected, without confounding the distinction between the two departments, as the judiciary continues to exercise only its appropriate judicial functions.
To determine, then, the extent of the law-making power, we have only to look to the provisions of the constitution. It has, and can have, no other limit than such as is there prescribed; and the doctrine that there exists in the judiciary some vague, loose and undefined power to annul a law, because in its judgment it is "contrary to natural equity and justice," is in conflict with the first principles of government, and can never, I think, be maintained. I am aware that some eminent judges, when the question was not before them, have expressed a belief in the existence of such a power; but no court has ever, I believe, assumed to declare an explicit enactment of the legislature void on that ground.
Blackstone, in his Commentaries, after referring to the doctrine advanced by some other writers on this subject, that acts of parliament "contrary to reason" are void, says: "But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with power to control it; and the examples usually alleged in *Page 431 support of this sense of the rule do none of them prove that when the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above the legislative, which would be subversive of allgovernment." (1 Bl. Com., 91.) Christian, in his commentary upon this passage, says: "When the signification of a statute is manifest, no authority less than that of parliament can restrain its operation." (See note to Bl.) These authorities, it is true, have reference to the British constitution; but the following relate to those of our own country. Lieber, in his work on Civil Liberty and Self Government, says that the state legislatures have "the right, as a general rule, to do all that seems necessary for the general welfare, and is not speciallyprohibited." He suggests no exceptions. (See chap. 15, § 25.) Mr. Justice Iredell, in the case of Calder v. Bull (3Dall., 386), where this question was incidentally considered, uses the following emphatic language: "If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void." Chief Justice Church, of Connecticut, also, in the case of The City of Bridgeport v. The HousatonicRailroad Company (15 Conn. R., 475), expresses his views thus: "There may not often be any great difficulty in determining what are the principles of natural justice, nor what would tend to undermine that which theorists may suppose to be the fundamental principles of the social compact, especially by those who acknowledge the precepts and obligations of revealed religion; yet these principles are not always of easy and undoubted application to the infinitely varied forms of human action; and we know of no other municipal power which can more safely make such application than the legislature; and as a court *Page 432 although we might dissent from its conclusions, yet we disclaimany right to disregard them for no other reason than that we might consider them unreasonable, impolitic or unjust." I agree with the learned chief justice, that this power of determining what laws are expedient and just, which must of necessity be lodged somewhere, may be as safely reposed in the legislature, which returns its power so frequently through the elections into the hands of the people, as in the judiciary. The remedy for unjust legislation, provided it does not conflict with the organic law, is at the ballot-box; and I know of no provision of the constitution nor fundamental principle of government which authorizes the minority, when defeated at the polls, upon an issue involving the propriety of a law, to appeal to the judiciary and invoke its aid to reverse the decision of the majority and nullify the legislative power.
This brings me to the consideration of the second ground, upon which it is claimed that the law, as a whole, is void, viz: that it is inconsistent with the letter or spirit of the express provisions of the state constitution. The particular clauses with which it is alleged to conflict are those which provide: 1. That "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." 2. That no person shall "be deprived of life, liberty or property, without due process of law."
The first of these clauses, which had its origin in Magna Charta, brief as it is, embodies the most essential guarantees against the exercise of arbitrary power which that instrument contained. Its meaning, as there used, is plain, when we consider that it was the result of a struggle which had lasted for more than a century between the English people and the Norman kings, who had supplanted the laws and customs of the Anglo Saxons, and established in their place the prerogatives of royalty. The English yeomanry, at *Page 433 whose instance this clause was inserted, meant by the terms, "law of the land," the ancient Saxon or common law. To put any other construction upon it, would render the clause utterly unmeaning. At that period in English history, the king exercised legislative power; and if by "law of the land" was meant any law which the king might enact, the provision was a nullity. But the meaning was rendered more clear by the paraphrase of this article of Magna Charta, which was inserted in a subsequent statute securing privileges to the people, passed in the reign of Edward III., in which the clause, "but by the law of the land or the judgment of his peers," was changed to the words, "without being brought to answer by due process of law." This change shows that the object of the provision was, in part at least, to interpose the judicial department of the government as a barrier against aggressions by the other departments. Hence, both courts and commentators in this country have held that these clauses, in either form, secure to every citizen a judicial trial, before he can be deprived of life, liberty or property. (Hoke v. Henderson, 4 Dev., 1;Jones v. Perry, 10 Yerger, 59; Taylor v. Porter, 4Hill, 140; Embury v. Conner, 3 Coms., 511; 2 Kent Com., 13; 3 Story Com. on the Cons., § 1783.)
Does the statute in question, then, deprive any class of citizens of their property, without "due process of law?" Property is the right of any person to possess, use, enjoy and dispose of a thing. The term, although frequently applied to the thing itself, in strictness means only the rights of the owner in relation to it. (Bouvier's Law Dic.; 1 Bl. Com., 138;Webster's Dic.) A man may be deprived of his property in a chattel, therefore, without its being seized or physically destroyed, or taken from his possession. Whatever subverts his rights, in regard to it, annihilates his property in it. It follows, that a law which should provide in regard to any article in which a right of property is *Page 434 recognized, that it should neither be sold or used, nor kept in any place whatsoever within this state, would fall directly within the letter of the constitutional inhibition; as it would in the most effectual manner possible deprive the owner of his property, without the interposition of any court or the use of any process whatever.
It may be said that the constitutional provision in question cannot, in the nature of things, apply to a case where a law enacted for beneficent purposes operates directly upon its subject, and thus accomplishes per se the end in view; that, in such a case, it is impossible to interpose any judicial action between the enactment and its execution; and that the clause can only apply to cases where there is to be some manual interference with the rights of person or of property. But there is no such limitation in the constitution; and the few guarantees it contains should not be curtailed by any narrow or refined process of interpretation. Such a construction would virtually nullify the provision, as the most oppressive and tyrannical ends may be accomplished by simply withdrawing from individual rights the protection of law. All vested rights to franchises would be placed by this interpretation, so far as the state constitution is concerned, entirely at the mercy of the legislature. To give the clause, therefore, any value, it must be understood to mean that no person shall be deprived, by any form of legislation or governmental action, of either life, liberty or property, except as the consequence of some judicial proceeding, appropriately and legally conducted. It follows, that a law which, by its own inherent force, extinguishes rights of property, or compels their extinction, without any legal process whatever, comes directly in conflict with the constitution.
Does the act in question do this? I shall consider the objections to the first four sections, which embrace the prohibitory features of the act, with the specific penalties annexed to its violation, by themselves, as they have no *Page 435 necessary connection with those made to the subsequent sections. If these four sections virtually deprive the owners of spirituous liquors of their property, without legal process, they are void, if my interpretation of the constitution is sound.
It is not sufficient that they impair the value of the property in ever so great a degree, because this destroys no right. It leaves to the owner unimpaired his right to keep, to use and dispose of the article. It does not therefore deprive him of any right of property. All regulations of trade, with a view to the public interests, may more or less impair the value of property, but they do not come within the constitutional inhibition, unless they virtually take away and destroy those rights in which property consists; this destruction must be for all substantial purposes total. Not that a merely colorable preservation of some minute and trivial interest would uphold the act. A substantial right of property must be saved, and the provisions must be such as may fairly be considered as intended to regulate rather than subvert and destroy the property.
What, then, is the general scope and object of the first four sections of the act? Plainly to prohibit the sale of intoxicating liquors for all except mechanical, chemical and medicinal purposes, and to limit their sale, for those purposes, to a particular class of persons. Is there anything in these objects which, if properly carried out, would transcend the limits of the legislative power? I think not. The legislature, in my judgment, possess the right to prescribe the places where, the persons by whom, and the purposes for which spirituous liquors may be sold, provided that under color of doing this it does not virtually deprive the owner of his property in them. So far as the places where and the persons by whom sales may be made, this act is perhaps not more stringent than the excise laws which it supercedes. The increase of rigor is in the purposes for which such liquors may now be sold. But the *Page 436 privilege of selling for "mechanical, chemical and medicinal purposes" is not, I think, so trivial as to be justly regarded as merely colorable. The consumption for the chemical and mechanical arts must be considerable, and that for medicinal purposes will be found, I apprehend, to be still greater. Besides, as the law would operate to check the manufacture and importation of liquors, the stock on hand would, if permitted, have been ultimately required for purposes deemed by the law itself legitimate. If, then, the law had suffered the liquors on hand, when it went into effect, to be gradually absorbed by the three privileged uses, the prohibitory features contained in the first four sections would not, I think, have conflicted with the constitution.
But there is one provision in the 1st section of the act which, when taken in connection with the 4th section, cannot, I think, be reconciled with any just views of legislative power. That section declares, in substance, first, that intoxicating liquors, except as afterwards provided, shall neither be sold, or kept for sale or with intent to be sold, in any place whatsoever; nor be given away, or kept with intent to be given away, anywhere but in a private dwelling-house. These provisions, although they abrogate the right of sale, do not prohibit the liquors from being kept, provided no design is entertained of selling them; nor do they prohibit their being used by the owner. So far the section may not conflict with the constitution. But it proceeds: "nor shall it be kept or deposited in any place whatsoever, except in such dwelling-house as above described, or in a church or place of worship, for sacramental purposes, 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 reaching its place of destination." The last clause is not qualified by any provision as to the intent with which *Page 437 the liquors are kept. It is an absolute prohibition against their being kept anywhere but in the excepted places, although the owner may have no intention either to use, sell or give them away; and the 4th section declares a violation of this clause to be a misdemeanor, and imposes a penalty of fifty dollars for the first offence.
Now what, under this law, is the condition of a person having spirituous liquors on hand on the day when the law takes effect? These liquors, or the rights of the owner in them, are property, and as such entitled to the protection of the constitution. What, then, is the owner to do? If he does nothing, he is guilty of a misdemeanor; because it is a violation of the act to keep the liquors anywhere, out of the excepted places, without reference to the intent of the owner. Unless, therefore, he obtains the right to sell, or deposits the liquor in one of the excepted places, he must destroy it, or be liable to indictment and punishment as a criminal. The act reduces him to this alternative; it does not permit him to dispose of his liquors even to those authorized to sell. In this respect it is inconsistent with itself. It admits the value of such liquors for certain purposes, and yet prohibits their sale for those very purposes.
If it be conceded that the legislature has not the power to pass a law directing a sheriff or other officer to destroy these liquors, wherever he can find them, without any process whatever, then the constitutionality of the provision under consideration cannot, I think, be maintained; because there can be no material difference between directing an officer to destroy them and directing the owner himself to do it, nor between enacting, in so many words, that the latter shall destroy them, and placing him in a situation which subjects him to conviction and punishment as a criminal unless he does it. How is it possible to deprive a man more effectually of his property than to enact that he shall be deemed guilty of a misdemeanor, and be liable to a penalty, if he keeps it for any purpose? This is precisely *Page 438 what the legislature has in substance done, since the only doors of escape left open to the owner are entirely illusory. They are, either to qualify himself, under sections 2 and 3, to sell, or to deposit his liquor in one of the excepted places. As to the first, he may not be able to obtain the necessary security, or to make oath that he does not use intoxicating liquor as a beverage. The law does not make such use a crime, nor does the constitution withdraw its protection in consequence of it. Such a man, then, although disposed to submit to the law, and not to sell for any unauthorized purpose, cannot save his property, even for those purposes which the law itself sanctions.
It may be said that he may remove the liquors to one of the excepted places. This might be done in some instances, and in small quantities. Some men own dwelling-houses, and some do not. Some might have access to mechanical or manufacturing establishments, and some would not. But the legislature has no power to compel the destruction of even the smallest quantity of liquor without a previous judicial condemnation. The idea of depositing all the liquor on hand, when the law took effect, in those excepted places, is plainly illusory. The suggestion that the owners might save their property by exportation is equally so. Admitting the right of the legislature to compel any class of citizens to remove their property out of the state, we cannot know, judicially, that an article, the sale of which is prohibited, and which is declared a nuisance in our own state, would be admitted as an article of merchandise into any other.
While, therefore, I do not question the constitutionality of the general objects of the prohibitory law, and fully concede the power of the legislature to prohibit the sale of intoxicating liquors, for all except mechanical, chemical and medicinal purposes, I cannot admit that it has the right to compel theirimmediate and unconditional destruction, as is, I think, substantially done by this law. The guaranties of *Page 439 the rights of property which the constitution affords, as my investigations in this case have satisfied me, are slender at the best, and I am unwilling so to interpret as entirely to nullify them.
There is one other argument, in connection with this branch of the case, which I will notice here. It is said that the legislature has the conceded power to authorize the destruction of private property, in certain cases, for the protection of great public interests; as, for instance, the blowing up of buildings during fires and the destroying of infected articles in times of pestilence, and that the legislature is necessarily the sole judge of the public exigency which may call for the exercise of this power. The answer is, that the legislature does not in these cases authorize the destruction of property; it simply regulates that inherent and inalienable right which exists in every individual to protect his life and his property from immediate destruction. This is a right which individuals do not surrender when they enter into the social state, and which cannot be taken from them. The acts of the legislature in such cases do not confer any right of destruction which would not exist independent of them, but they aim to introduce some method into the exercise of the right. (See the able opinion of SenatorSherman, in Russell v. Mayor of New-York, 2 Den., 461.) It has never yet been judicially decided in this state, so far as I am aware, that the officers upon whom statutes of this kind purport to confer power to destroy buildings, to prevent the spread of fires, would be justified in exercising the power in a case where it could not be properly exercised independent of the statute; and it may well be doubted whether the legislature can add to the extent or force of the natural right.
Again, the enactment of quarantine laws, by force of which not only is property destroyed but personal liberty restrained, is the exertion, by the body politic, of the same power of self-preservation which is possessed by individuals. *Page 440 Their justification rests upon the immediate and imminent danger to life and health, which they are enacted to avert. If we admit the truth and force of all the reasoning upon which the statute before us is based, it will still be impossible to bring it within the range of this power. As well might an individual argue that, because he has a right to protect his life or property from immediate destruction, he has therefore a right to resort to any measure he may deem necessary to guard against remote and contingent dangers. It is clear, therefore, that no argument drawn from these and kindred enactments can be of any weight in determining the question here.
The conclusion to which I am thus brought is necessarily subversive of the first four sections of the law in their present form. For although, when only part of an act is unconstitutional, and that part is entirely separable from the remaining portion, the court will limit its condemnation to the part which conflicts with the constitution, yet this cannot be done where, as in this case, in a single section several acts in relation to the same subject matter, and connected in one sentence, are forbidden, and in another section all these acts are indiscriminately declared to be crimes, and one common penalty is annexed to each. The same provision cannot be both valid and void, as would be the case if it should be held that the penalties imposed by § 4 could be enforced as to part of the acts prohibited in § 1 and not as to others.
It may be said that although the legislature has not the power to annihilate existing rights of property in any article, it may nevertheless make it unlawful to acquire such rights in future; and may therefore enact that all rights of property in a particular article, thereafter acquired, shall be null, and that the article itself shall be destroyed; and hence that the present law may be enforced as to all rights not shown to have existed when the law took effect. *Page 441
But conceding the power of the legislature to make such a law, it cannot support the present act, which operates indiscriminately upon all rights of property in the article in question, without regard to the time when they were acquired. To hold the law valid and operative as to property acquired after it took effect, and void as to rights previously existing, would tend to the constant recurrence of the question before the courts as to its constitutionality, and to repeated judgments of condemnation of the law.
There are serious objections to this on grounds of public policy, which requires that collisions between the different departments of government should be as few and as brief as possible. If the law was so framed, that proof on the part of the defendant that his rights of property involved in the case had existed before the act took effect, could be construed into a defence under the act itself, this objection would be removed. But it is clearly otherwise. Such proof would have no tendency to exempt the defendant or his property from the penalties of the law, except by calling upon the court to pronounce it unconstitutional. Thus the courts would be required over and over again to declare the same legislative provisions both valid and void, as applicable to different classes of cases. This has been in some instances, but with doubtful propriety, tolerated in purely civil cases; but never, I believe, in respect to penal and criminal legislation. It is not only liable to the objection already suggested, of calling into repeated action the ultimate judicial power of passing upon the validity of the acts of a co-ordinate branch of the government, but it would tend directly to encourage experimental legislation. If the legislature may in a single provision encroach ad libitum upon the constitution, without other effect than to call upon the courts to limit its operation to cases within the purview of legislative power, nearly all motive for a careful regard for constitutional right in legislation would be removed and an onerous burden imposed upon the courts. The general rule on this subject is, that *Page 442 where part of a law is in conflict with the constitution, and that part is entirely separable from the residue, so that other portions of the law can be enforced without reference to it, there the unconstitutional part only will be condemned. But where the legislative provision is indivisible, and the necessary discrimination has, as in this case, to be made at the trial, so that the rights invaded can only be protected by repeated judgments against the validity of the law, although there may be a class of cases to which it might properly apply, the provision is wholly void. The law, therefore, must be revised and the proper discrimination made before it can be enforced.
I shall notice but a single additional point arising upon that portion of the law which is designed to enforce its penalties. Section 17 contains important provisions which are made applicable to every prosecution under the act; and if the law is to be revised, it is undoubtedly desirable that the views of this court upon that section should be known. The question arising upon it is, in my opinion, of greater importance than any other which the law presents, as it goes to test the value of those clauses of the constitution upon which our rights of personal security rest. The second branch of the section provides that, upon the trial of any complaint under the act for an unlawful sale of liquor, the defendant shall not be permitted to justify, under the 2d section (the only way in which it is possible to justify), unless he shall: 1. Admit the sale, which, by the previous clause, is converted into prima facie evidence of guilt; 2. Swear to his innocence, i.e., his belief as to the use which the purchaser intended to make of the liquor; and 3. State the reasons upon which his belief was founded.
Can this provision be reconciled with that clause in § 6, art. 1 of the constitution, which provides that "in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel," taken in connection with the provision in the same section, *Page 443 that no person shall "be deprived of life, liberty or property, without due process of law?" Of what value is this right "to appear and defend," if the legislature can clog it with conditions and restrictions which substantially nullify the right? The constitution says, every man shall have a right "to defend." The legislature says, you may defend, provided you first admit yourself prima facie guilty. Can these provisions be reconciled? In Greene v. Briggs (1 Curtis R., 311), Curtis, J., speaking of the provisions of the constitution of Rhode Island, that no person shall "be deprived of life, liberty or property, unless, by the judgment of his peers or the law of the land," says: "The exposition of these words, as they stand in Magna Charta, as well as in the American constitutions, has been, that they require `due process of law,' and in this is necessarily implied and included the right to answer and contest the charge, and the consequent right to be discharged from it unless it is proved." He subsequently adds: "It follows, that a law which should preclude the accused from answering to and contesting the charge, unless he should first give security in the sum of $200, with two sufficient sureties, to pay all fines and costs, and which should condem him to fine and forfeiture, unheard, if he failed to comply with this requisition, would deprive him of his liberty or property, not by the law of the land, but by an arbitrary and unconstitutional exertion of the legislative power." The conditions imposed upon the right of defence, by § 17 of our act, are far more onerous and embarrassing than that condemned by the learned justice in this passage; and if he is right, it is impossible to sustain the section against this objection. It is equally clear that it conflicts with another clause of the constitution. Section 6, art. 1 of the constitution, declares that no person "shall be compelled to be a witness against himself." Section 17 of this statute, says to the defendant, you shall not go into your defence, unless you will not only swear to your innocence, *Page 444 but make yourself a witness and testify to all the circumstances of the case. This, for all substantial purposes, is compelling him to be a witness against himself. It is doing precisely that against which it was the object of the constitution to protect him, viz: searching his conscience under the constraint of an oath. There is no difference between compelling a man to be sworn, and assuming his guilt if he refuses; because his refusal his precisely the same effect as if he was sworn and testified to his own guilt; it convicts him. Indeed, the provision is virtually compulsory, as there could scarcely be a more effectual way of compelling a man to be sworn than to say, that unless you consent you shall be convicted and punished as a criminal. The section, therefore is, in this respect, in my judgment, a plain violation of the constitution.
But a point of still greater interest arises upon the first branch of § 17, which provides that, "upon the trial of any complaint commenced under any provision of this 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." There are two classes of cases upon which this provision operates with great severity. Although the act does not prohibit the safe keeping of spirituous liquor or the giving it away in a private dwelling, yet by this clause the mere delivery is made prima facie evidence of an unlawful sale, without exception as to place. No one, therefore, can in his own house give a glass of wine to a friend, without thereby affordingprima facie evidence to convict him of a misdemeanor. Other portions of the act purport to respect the sanctity of the private domicil of the citizen; but its innermost recesses are penetrated by this provision, and acts of mere kindness or courtesy are converted into proofs of guilt.
But the operation of the section upon another class is equally onerous; I mean the class of licensed vendors. Sections 2 and 3 expressly authorize certain persons to sell, *Page 445 who are required to give ample security not to violate any provision of the act, and yet, by force of the clause in question, every sale they make affords prima facie evidence to convict them. The act presumes against the innocence of its own selected agent, and will not permit this presumption to be rebutted until such agent consents to make himslf a witness in the case. This provision raises the vital question, as to the value of that clause in the constitution which secures to every man charged with crime a trial by "due process of law." The most important guarantees of individual right which our constitution affords are concentrated in this single phrase. As we have already seen, the expression, "due process of law," first appeared in a statute of Edward III. as a paraphrase of the words, "by the law of the land," per legem terrœ, in Magna Charta; and from that day to this both forms of expression have been held to refer to the common law, as distinguished from statutory enactment. Sir Matthew Hale says: "The common law is sometimes called, by way of eminence, lex terrœ, as in the statute of Magna Charta (chap. 29), where certainly the common law is principally intended by those words, aut per legemterrœ, as appears by the exposition thereof in several subsequent statutes, and particularly in the statute of 28 Edward III. (ch. 3), which is but an exposition and explanation of that statute." (1 Hale's Hist. Com. Law, 128.) Lord Coke also, in his commentary upon Magna Charta, puts the same construction upon the words. (2 Ins., 45, 50.) The courts in this country have held the same. Chief Justice Ruffin, speaking of this clause in the constitution of North Carolina, in the case of Hoke v.Henderson (4 Dev., 1), says that "such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usage of the common law, as derived from *Page 446 our forefathers, are not effectually laws of the land for these purposes." To the same effect is the language of Judge Bronson, in Taylor v. Porter (4 Hill, 140), where, in speaking of § 1, art. 7, of the constitution of 1821, he says "The meaning of the section, then, seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him, upon trial had according to the course of the common law."
If this interpretation is correct, and it is sustained as well by history as by judicial authority, the clause in question was intended to secure to every citizen the benefit of those rules of the common law by which judicial trials are regulated, and to place them beyond the reach of legislative subversion. They are, indeed, virtually incorporated into the constitution itself, and made thereby a part of the paramount law. Trials, therefore, at least such as are criminal, are to be regulated and conducted, in their essential features, not by statutes, but by common law. This the constitution guarantees. Precisely how far the legislature may go, in changing the modes and forms of judicial proceeding, I shall not attempt to define; but I have no hesitation in saying that they cannot subvert that fundamental rule of justice which holds that every man shall be presumed innocent until he is proved guilty. This rule will be found specifically incorporated into many of our state constitutions, and is one of those rules which, in our constitution, are compressed into the brief but significant phrase, "due process of law."
Can § 17 be reconciled with this rule? It provides that, upon every prosecution under the act, proof of a sale of liquor shall sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of a sale. It is plain that at common law the legal presumption would be directly the reverse of that declared by the act. Where the common law would presume innocence, this act presumes *Page 447 guilt. Either the guarantee of a judicial trial, according to the course of the common law, is a nullity, or this provision is void. But I am prepared to go further, and to hold that all those fundamental rules of evidence which, in England and in this country, have been generally deemed essential to the due administration of justice, and which have been acted upon and enforced by every court of common law for centuries, are placed by the constitution beyond the reach of legislation. They are but the rules which reason applies to the investigation of truth, and are of course in their nature unchangeable. If it does not follow that to determine what they are, as applicable to judicial proceedings, is a judicial and not a legislative power, still they must necessarily be included in the phrase, "due process of law." If this be not the true interpretation of the constitution; if the legislature, in addition to declaring what acts and what intentions shall be criminal, can also dictate to courts and juries the evidence, and change the legal presumptions upon which they shall convict or acquit, there is no barrier to legislative despotism; and the separation of the legislative and judicial departments of the government, the guarantee of trial by jury, and of a trial according to the course of the common law, have all failed to afford any substantial security to individual rights.
I am unable, therefore, to resist the conviction that, in both branches of § 17, the legislature has transcended the just limits of its power, and trenched upon the constitutional province of the judiciary.
The judgment of the supreme court should be affirmed.