This case has been examined with very considerable labor and care, during the time intervening since the argument, and in regard to all the preliminary steps, up to the time of the actual trial, before the court. I do not understand that this court have any insuperable difficulty, in upholding the proceedings in the court below. And it will be obvious, that from the opinion just announced by my learned brother, which has the concurrence of *196a majority of the court, the requirements of the statute in regard to the trial, and the onus probandi, or what I esteem the dispensation with all evidence, on the part of the state, both in regard to the proceedings against the liquor and against the claimant, for a penalty, are, by a majority of the court, to be upheld also.
While then I cannot but feel, that it is better for the health of public feeling, that a deliberate act of the legislature, especially one so essentially affecting the criminal and police administration of the si ate, as the one now under consideration, should be upheld when it can fairly be done, I cannot but also feel, that in the particular form, in which this statute was originally passed, it was so defective, as, by any reasonable and natural construction, to be too much at variance with the very first principles of constitutional liberty, in free states, to be defensible without such a degree of refinement, not to say logical evasion, as will expose the administration of the act to so much suspicion and just criticism, as really to weaken, in the public opinion, those leading features of the law, which are unquestionably defensible, upon the soundest grounds of constitutional law, and by the friends of the statute deemed of especial importance to the peace, comfort and well-being of the community.
While then I feel compelled to say, that I have no sympathy with any class of men, who make war upon tins statute, or any other law of the state, in a spirit of preconceived reproach, of opprobium, and hypercriticism, of which character I have felt compelled to regard, most of the former attacks upon this law, and while I would 'cheerfully and gladly uphold this law, and all laws, against any and all such attacks, with the tittle of zeal and strength accorded to me, I cannot but regard it as altogether unadvised and ill-judged, to push the defence of a statute, and especially a statute upon the subject of sumptuary law, a subject so rife with jealousy and suspicion, in all periods of the history of civilized states; to push the defence of such a statute any further than we can fairly justify our course, by just construction, and sound and sensible exposition, seems to me doing an essential disservice to the cause of legal administration, in general, and upon this exciting subject, in particular. There is no subject upon which men are proverbially more sensitive than this. And wise and prudent *197administrators of the law, will always be ready to take humanity as they find it, and adapt their measures of legal reform, somewhat to the material, with which they have to deal, and not attempt to run so far before all ordinary forms of legal proceedings as to lose sight, at once, of the public sympathy. Hence, in my judgment there not only is no necessity of attempting to vindicate the extreme provisions of this twelfth section of the statute, as it originally stood, and which has now, almost by general consent, been so modified as to be defensible, upon obvious and acknowledged grounds of legal interpretation, but we thereby perform a very essential disservice to the general force of the statute, with which this section is connected. There is no doubt, in my mind, that any subject of legal reform is more advanced by measures of such stringency only as can be fairly and fully justified to the public mind, than by anything of a more extreme, and questionable character. It has been therefore with less regret, since the obnoxious provisions no longer exist, and the decision will not- therefore be regarded as of much practical importance,- that I have felt compelled to the conclusion, that the provisions in this twelfth section, as it originally stood, in regard to proof are characterized by a degree of one-sidedness, so to speak, which would never have been attempted, upon any other subject, and is absolutely indefensible upon all subjects.
The substance of the section, upon this point is, that if the officer serving the search warrant, “shall find any intoxicating liquor, under circumstances warranting the belief, that it is intended for sale, contrary to the provisions of this act, such officer shall seize the same, and convey it to some place of security, and keep the same until final action thereon.” And the officer is to summon the owner or keeper, to appear forthwith, before the magistrate issuing the warrant; and if he fail to appear, or to show by satisfactory evidence that said liquor is not intended for sale, contrary to the provisions of this act, or is of foreign production,” &c., “ such liquor shall be adjudged forfeited and shall be destroyed, and the owner, or keeper shall pay a fine of twenty dollars and costs, if in the opinion of said justice, said liquor was kept, or deposited for the purpose of sale, contrary to the provisions of this act.”
My brethren think the latter clause of the section in regard to the penalty, leaving it dependent upon the opinion of the justice, *198presupposes that a formal trial is expected to be had, and proof introduced by the prosecution, in the ordinary modo, and the case decided like any other criminal case, upon the balance of evidence, or the exclusion of reasonable doubt, from, the mind of the justice, so far as the penalty is concerned. And if this is the fair construction of the statute, as it first became a law, it is well enough doubtless. This case arose before the amendment of this section and we must decide it upon the law as it then stood; and comparing the amendments of this section in 1853,* with the original frame of the section, it is obvious the legislature, upon all hands, both the supporters and opposers of the law, regarded the amendments, as working a very essential modification of the statute. The fourth section of the statute of 1853, provides that neither the liquor shall be condemned or a fine imposed, unless “ it be shown by satisfactory evidence that said liquor was intended for sale,” &c. It is scarcely supposable, if the statute in its original form, required proof in the first instance on the part of the prosecution, either for the purpose of condemning the liquor or enforcing a penalty, it should not have been suggested by some one in the discussion of these amendments, or in some way before the necessity occurred, as in this case, to give the original section in regard to the penalty, the same construction which the amendment gave it, and to do this in order to save its conflict with established principles of constitutional law.
The truth is, and the resolute friends of the original law always so declared, and upon this ground condemned the amendments of 1853, that the original section did not, and was not intended to, require any proof upon the part of the prosecution, except the return of the officer, upon the search warrant, that he found the liquors, under circumsiances warranting the belief, that it was inten*199ded for sale, contrary to the statute and this is no proof, at all in a criminal ease. The accused in all criminal cases, of whatever grade, is entitled to be held innocent until he is proved guilty. He is entitled to have the testimony given in open court, and to confront the witnesses, and to cross examine them. And although it is undoubtedly competent for the legislature to define the onus prohandi, and to declare that certain facts, like the possession of stolen goods, or counterfeit coin in certain quantities, or the possession of liquors, under certain circumstances, shall be regarded as prima facie evidence of guilt; it is certainly not competent, for the legisture even, to dispense with all proof of guilt, or to make the return of an officer, which is at most merely ex parte and in no sense testimony, to make this, evidence of guilt, as is most obviously here attempted in this statute.
And although from, necessity and long acquiescence some of the provisions of magna charta, and the American constitutions, like that requiring a jury trial, in criminal cases, have been held to apply only to such courts, and the offences there triable, as have tins mode of trial; in other words the provisions of the constitution must be received with such limitations, as the necessity of their application, in practice, absolutely require. It was understood however, that the accused, in a justice court or a police court, is as clearly entitled to be held innocent, till he is proved guilty, as in the highest tribunals of the state. He could not be heard, “ by himself and his counsel,” if he had no means of obtaining counsel, and none attended the forum before which he stood, so that they could assign one to aid him. And he could not demand a jury trial without complying with the statute requiring the fees to be advanced probably, and he could in no event have a jury in an inferior court or one of summary jurisdiction, where none attended by law, or a jury of twelve men, which magna charta and our bill of rights undoubtedly intend by “a jury of the country,” lie could not have this, where the general organization of the court, only provided for a jury of six men, as in. our justice courts; and he could not perhaps justly complain of this, if the law gave him the right of appeal where he could secure a full jury trial. But in all courts he is equally entitled “ to demand the cause and nature of his accusation, to be confronted with the witnesses; to call for witnesses in his *200favor; nor can he be compelled to give evidence against himself.” In the present case, it is true, the accused is not compelled to give evidence against himself, but the same result is attained, by-dispensing with all evidence of guilt. And instead of having the witnesses confront the accused, or submit to cross examination, or even the officer return the facts and circumstances of the case, he returns at once, and in gross, that they are sufficient to justify an inference of guilt, a form in which no witness could be allowed to testify. The whole proceeding is a deliberate, but I doubt not, unconscious defiance of the ordinary mode of trial. It is one, therefore, which I think, no court can or ought to justify. It is in my opinion altogether without parallel, in the history of jurisprudence in free states, unless something of the kind exists in similar statutes in other states, and of no practical benefit, but rather detrimental in its operation, and one that it was both creditable and prudent to abandon, at the earliest moment, as the legislature did.
It is noticeable in this case too, that the defence consists of a direct negative, and in matter of intention merely, and without the court being made aware of the particular facts of which the respondent is accused, which certainly puts one at very great disadvantage.
It should be borne in mind too, in attempting to vindicate such a provision, in regard to the mode of trial, that if it can be applied to one offence it may be to all, and in times of tyranny and oppression, no mode of resort has been more common, than to treat an accusation, by public officers, as evidence of guilt and to demand of the accused proof of innocence; and the complaint and return of the officer is nothing more than an accusation of crime, in the present case, and the accused is then required to prove his innocence, or lose his property and be fined and imprisoned, in default of payment. And it is perfectly competent for the legislature to punish this offence, by imprisonment, or confiscation of goods, or public infamy, or even by the extreme jDenalty of the law, if they should ever deem it expedient, and the fact that they never have and probably never will do this, if they have the power to do it, is no reason why we should justify a mode of trial in one case of penalty, which we could not in all..
In these matters above all others, the maxim insta principiis is of striking application. In all abuses of authority there is no *201return, nulla vestigia retrorsum, and it always begins in a good cause, in defence of religion, or morality, or public decorum, or order, or decency. The former objections which have been urged against this statute have been chiefly in matters of form, and many of them captious and frivolous, but this is of the very essence of the trial. It is in short, whether the accused is entitled to any trial. Suppose the party declines as ho may, to adduce any proof, is he not by the very terms of the statute, to be convicted without any proof, upon either side ? And if he may thus be convicted of one offence, may he not in like manner be-convicted of all or any offences ? What then becomes of the liberties of a free state ?
It should, I think too, be borne in mind, that the legislature have not declared all liquors contraband, or nuisances, as being unworthy the protection of law, as they undoubtedly may do of any species of property, and if they do so, any one may destroy it, at will, and without warrant, or trial, or remedy. But the general status of liquor under the present law is that of property. It is only declared forfeited under one contingency. This therefore is a penalty, and as such is to be made out, by proof, upon trial, like any other forfeiture. It is as much a penalty or forfeiture, as the penalty, in personam. And in the United States courts where goods seized under the revenue laws, are condemned unless the claimant malee out a case, and where spirits in the Indian territory, have been similarly condemned, it is never done except upon proof, in court, by witnesses, of the circumstances, under which the seizure is made, in the first instance. And under the present statute, I learn from the most cautious officers and counsel in the state, that in practice the officer or others, as was done in the present case, are first called to prove the circumstances under which the liquor was found. But this not being required by the statute will not make the proceeding valid. The inquiry is, whether the requirements of the statute, in creating the forfeiture, are constitutional and legal so that they can properly be exercised by the courts. And in the present case, I trust I have sufficiently shown, what to my mind, are insuperable difficulties.
The judgment of the court is that the respondent take nothing by his exceptions or motion in arrest.
Sai& amendments were as follows, (SeeUaws of 1853, p. 20.) Sec. 4. So much of section twelve of the act to which this is au amendment ns provides that if fell© owner or keeper of liquor seized under said section '■fail to appear, or show by satisfactory evidence, that said <l liquor is not intended for sale contiary to the provisions of this actf and the clause next following the same, is hereby amended to read as follows: “ If he fail to appear, or if “ it be shown by satisfactory evidence that said liquor was intended for sale contrary to the “ provisions of this act, unless such liquor is of foreign production and has been imported “under the Jaws of the United States, and in accordance therewith, and is contained in the “ original packages in which it was imported, in quantities not less than the laws of the “ United States prescribe, such liquor,” &c.
Sec. 5. So much of section twelve aforesaid as gives authority to the court, under the circumstances therein named, to impose a fine upon the owner or keeper of liquor seized under the provisions of said section, if such owner or keeper fail to appear, is hereby repealed.