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title: 'Marshall County Democrat. (Plymouth, Ind.) 1855-1859, November 15, 1855, Image 2',
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" S .
Habeas Corpus before Judge Perkins of i
the Subreme Court.
HERMAN vs. THE STATI
opinion- or nit: ju-ge.
Herman am-sted uion a thar-o of h awry ;
the in o,uesaon. :
vioiaieu me umior aci i .. ue ooiaineu a writ ' ji, u
i . . . ...... : villi
ot lluooa--. l orpus. pursuanr to winch he it iv.nv ;,,.,,,.,,.-,,,., :, j ,vl, r,r i,u r..li..mii...-..e.l in i Sf'ionlx nor 'uriulmn: find T linnn wo ahalM
brought before ns at ( ham'trr. t 2ih the ratt-e oflus tt,-n o t!. leuiJ. n,..i r!,..;tJ:. -jw. r ..-.. .t i !i..i i..-??. . L'tnTiTn
detention in custody. . v.-liichrcccnimen..k.d the Mrierati-. hut to, 1 ,11 the i.t .i: . u,,i: .A t.l..?U
, . . i - - .......... iiiii ii.itr iiii-si- hihihi i-o t;:ii tiur ii'.'iniiiar i
1 1 1 couinel wovv. lor l U;!:, on U. jrrui..! cxcI ve onntoxieatinir li.,uot. TUU Law of' ",.''U,V ."UOT
:h.it Sit. i l!MUr art h iiniiiitnu?or::ii nii.i . Ar,K... t- o-. i wi - ....1 s: lino m voria. ;ma nnniirvf tio j
rho c:iv h suomitte.1 to in uj. n the nr-enunt . IToMlitorv act .but it does not apsvar lo hie heen j Vlllgd them, and libels .Igist th(b5
rKof'ue fi'M pi tho hvivmh coi'.rt j?i th . easeof ' n.lAT.t.O I.V U 1151 .:mn; tUI W-i l itM.. i iv.it Si. '.. l j i-
rfgn-i thai . 1.h ;iiu-.k. U .1. th-.,s 1 1,-; t:ltc. Uemv. it In-noi eHen. if at all, a, t ! " cil:imu 0 no ümg oi Olliical
f,-iit.Ml to ih. e had hew-d ih the-- application-; ; IK,;rit p llS judical roiih nuion. mwiings and making sjK'CClio, tho bearing
v.oulllvee.Meonim.Mtoo lut.rior ro'u till. A 'lnierof Eur ;.om wiit.M-on natural, pub-1 of arm-, publishing of newspapers, rfrc,
the Su'eine Court had d.'i Kh-de.jv.ntli.- vallity .i ' ir. an-U-jvii law. ar0 cit0,i ,v counsl oubohil ut thc howver. inim-i.ow to th.. loiKnV tl.
P,".t the hp .-latme. aci.n-, a- in-uk. v. nnm ! t!H;. ,-it,.iS ivpe-taWe,aUe. and instruelivr upon
the tÄ.iüt.Ktimt, hm conN-n M upon th' eitizrn the ! rt.me ul .jeets a- thev are adm:tt d to be, are not an--htof
-uui-out the vrit ot h.ab. u-? rerpiH from thoritv hero on thN" doint. Thev are dan-erous,
th- jv.dir.-5 verally ot th? Supreme Court; iIm in.l..'l. uttci-lv ljlin.1 guide- to follow in searehin
ri-ht h i b en rxereie 1 in thi c i-e. a a 1 it i - not fortho land-niavlisol ie-i-lative power, in our free
..rui.nTn -Ik'htnreiextMoshvinic in m t.. ü-S aiMlimin-d roveiiinunt; for the had in view, when
eh.4rp- of the duty, thus a r.mnot. m ,btu ' ,-,.:.,, KOvi-iiiinent-as t-xiin when and where
believe injud-OMü-ly imporod U)R.Ji us. ; tjlCV v -,.,;te. ,in,0I. wl;t.j1 ttlCV iiu.,i am x.cl, 0lU1.
(.uti.- 1 on Kth s-.Jed eojirede oi .-r-Mineiit that : (.;lt;..J, :VIl which li:d no w;itrn constitution limit
th record pieMsihe laie-in-n ot thealidif of ; jj.r t!H-ir Kjwersovei wnents tl,e theory of which
W least, what is alleged to ho the nrohibitoiy j.or-1 Wa-- that':!i.-v were lutei-nal in character that all
iiou of -.iH liquor sict. f.n I th vt .jueic-n v. ill. there- ; j-,0w,.r v. "s iu them l.v di ine ri-ht. ami thev. hen.-c,
rr.re. without iu'';rv upon the x.'nii. W e,.?wideivd. j ab.;,,nt(.; that the jKople of a country had "no ri-hts
Ve approach t with all the caution i,v solici- except what the rrovernnu nt of that country frra
tude its nature i: calculated t-. inspire .ü. 1 that in- j -i,,u-lv saw lit to confer upon them, and that it was
t'Miiiox. of care ful mve-li-atioa iis hnv am-v de-; jts ,,w a . ;l r;ltiivr twanls his children, tü coni
m m I-, feeling that the coi)s,..rH-nves of the T iir, i-1 ,11;j.l whatever it deemed expedient for the public
plcswea-eout toa-sertwill nt bo confined in j ?oli. without lirst. in any 111 inner, con-ultinir that
their operation to this ca-c alone. JVel'nünary lo t j,uMie, or reeoniin in in member. any individual
the diseuv-ion of the jna:n p.essions int uit e,.l. hnw-. j-j.dj.
ever, the ou.r-e of urument of e..;msi l repdi-es iced, the diseoverv of the pvat doctrine of
that w e shouhl s ay a word hy way ...1 lahly s-ettimr i hts in the people as aL'ain-t the government had
forth the duty this court has to perform in the prcm- j ,lL,t been in id" when the wiitcr above referred to
faes, viz: this simply deeUriie.' the constitutionality j j;vo,i. $n,., ,,.,-iunentj aS those d.csciibed.
or raiconstimtioii ility of th ? b.w. wii!, an a-iirn-i ,..uld alop' the tu ixhn ipiored bv counsel, that the
X'K-nt of the reas-.ns utii which the deej.irarion is , ;.,x , ..,.,,1,, fi,v,n .",., j;nv, and a-t uik.ii
It will no; be f..rus t ciHpiiiv whether it be a
;.iod or bad law, in the abstract, unle.- ;iu- jet, as
it iiiiht turn out to 1"-. should become id" s-.me - ;i
seijuerre in detert.'.ninz a d iubtftd .oint on the
m ain one-ai.ei. It not uiifniiuentlv becomes the
-lutv of ov.rtato enforce injudieious an of riie lei:-
i.V.aiiue b.vau. t'.iey are consrauiioiul, and to
uikedownsnrha.s, at lust icw, appears Ut h ju-
liieious.b cuiseUe-yareineonlHetwith.he e;iis:i-
WUh these remark--, vo reeee.l t. tue xami ia-!
lion of the feature of the liipmr act of I.'ö n w ,
!.j..re especially presented U t!:e court. We shall I
:ot ?'mt time uw:i me eijuir wm-iner. on ue :
. . -1. . , . .1 . .1 . .11
dav it came into force, there were cxi.-thur unsold
m itrafaetured products in tue hands ot the distiller
a ml brewers utxn whicli it ojHratiil. rendeiiii it
valulcss, or whether such product had ail been di
ve I of between the p.tss ige and taking elVect of
theliw. We shall direct our in. c.-tigation to ihe
rliaraet r ol" i s o.vration upon tin- future maurifae
ture. isale au I c-jnn'.:nt!inef iru-iiieuing li itiors.
lt. I it prjhil-uo:y?
The fr-t section enacts that 110 person rliall
manufacture, k ej for sale, or sell" any ale. por
ter, malt beer, cider." w ine, e. The second see-
t"'.ri permits the manufacture and sale of cider and !
viae vimlor ceiiam resit eu.iis, oy any ano an 01 111c
c'.tizen.s of the State.
Other sections pennit the nvanuiacture of whisky,
ale. Aic.bv iHrsons lieen-e.l fr llie purpose, so far
; be neces-arv to supply whatever uVniand
cert im I
on them. These agent. are authorised t- sell for
m"flic:nal, niecliani.Ml and sicraiii.'Jit.il uses, and no
other, and may jreuie their Ihator id'licen-id
n .nuf.ieturer. but are l.oi 1 juiied t d so, and.
miller of fact.ih. nor, b:;t (obtain thcm.iu most
.nes, from abroad. Tie cr.;itifu?e part of tlie
treasury and not ..r theniselv.-. NVcsiy tliey are i
people cn-Mg.-d m b'is-.n. s .1. th. :r o. ji ;.( v,n,t, , ji as-ug law s iw vi..l i!i e.i ! tlie lritural : 15ut the JegisJaUir eannot declare the
f..ltar.;lt;-ünte.l luld.rthev:l.ytl.e th.. Supv-m Curt path from my house (. my bam nor any
Misji.iner-: sun:beil wit'i Inno 1m toe co. ntv . , , . . .. .,..- .. 1 ' 1 . 1' 1
tVc t-rr ; Pid I mcu fo, ,l.e:r nics bV ! lh 1 1,1 J ' 1 I"'M A: ! j UC 1 l 1 v 1 " " "ll.sancc,
thecou?ify;sellat prices fuel for ih.-m.and :i.:.U- ' l:iv.s when p.)-s ... b 'erVts. t h ' do li' 1 ill j and order V diseontltltloj; nor C:t!l it de
ti.e prof'.H an-1 l--ses r .f the :.;i.-:r.e, f..r the public withrt iis jiu i-di -:i :i. Il--a that court 1 i-laro mv siorc rvm and toek of Toods a
fun.Mi'-lv. ill. public fand. Ti.ev :u s , :( aj f-a-: - . .
es:forwhenth.v.iniVnr.t insp.c.., i:o. -f t.-WvVU':": ,A rr"i"'r,.v '; '.'m -
own.itisbv way et h-tn t . th- rouu'v a? a lud i -e:i-.i i .it. atid tie' mjIh oi !nd by jury,
r-.t' Ol Wio.-r-'-i . aoi lie- am Ji.;.! 1.- 1 1 n.iov i i- in-;
- - 1 . t . ... r... 1 11. i : 1
o iü v vlt'i iii'eve-'. Tic-se - hiug. e. i.-s tio-t:.
: ;e,aii i loi e .uveuieuc.-. mavbe d.'nan, o a'ed -'. -!
en m-M a-eS.t: f.r it i all oi..- hi prince.?., whet!,.-,
the g--ver.i';i -:it nvu- and furnish.- tii.-m w;i!t :
f..r r c-ilelne. .e., f .rth.- irov. :i::;,.:if. ;
funis thronen t.e- nieoiim ; to.- e .vim--, r.v a;-' i-ourt, n'li the like; Saiterh v. .Matiiew-; jiropertv, still I must not uc it to injure
optiaie them din vtb ;-n l -uj;pJ:es ih.em : o 1 ..;,-. ,-s ;;;j, autl the licM,-,. . ases in . otle-rs. So, all trades practices, and prop
with binds from bv Mate I r.-a-.n-e. I o epi.-s. . ir , . ., . . 1 . . . . I I
th-iuthesubstan-.. of m.iu pr oM .:is ,!? ,V, ; u .h H-uavd Jl: and uo ivdtvss 1,, ob-jerty. may, by the manner, time, or place
Jaw, thev i.uy b-par.;.Ir..-ed thu-: j taiaabl" iu ih l.nited SiaVs Courts be- j i(f use, become nuisances in fact, in quality,
lte'u "m u ted; . Tint tin. trade an i ha-iues ! -ausi ! ;e ate n. pne i-io:is in the I'liitcd and subject, consequent lv, to forfeiiure and
of iniieif.ietmi:i,: v.hi-kev, ah-. ,-.rt.T. and b.-er .js.at-s Cuns-i. u ; h -a prohibiiin-g the pa-- j abatemeiu : far example", slau-diter-houses
now and he;e:.fi.r ranr-t on 1,1 ttrs s-'n,-. -mil! .. , ,. . , 1 , . ' "... , ' .' . ,
.f ti..t:uv r-.ii s ,.,;,!!, i;,...,,.:.! ,,.!: oi nrh Na.- laws. Jat th-- Sapivme ; m cities, or some descnpti-ms of retaihnr
mtvdo s '.an l .- tl ' ) that et:-r:, if the govern-; d t o.tr Stav C.asiiiu! i.n. the h'gislaturc I enquired into, and, if the fact of nuisance
mcl.tieo-e'udet.bMyr.r s;; .j,,eLll,(t j 1..W f.,r the taking of privat- i be f-.r.nd, to have the forfeiture and abate
. ,. Sl ..i...;,,,!..-.! i,,v property witleu making cmp-nsation: ! meat adjudgi-d and executed. And it is
kvbeer. al or jhi ie. uide-.-: the s a.-b. pi an agent
I ofth.. go. ft.nieit or i.y -u a ag. tit I.:-ii!!vu -ine .v.-. j tri.i! by jurv, and cannot ies. asMe the
X:: ,T"? MKr Vl XU Sr ','' ,lr:",k- an.vlj'ddgm-at oVa cart. tVc Young vs he
' whiskv, b.-er, a?eor po.P r, a a bev. r ige, and 111 n . f , . I I. 1 1 un A! '
Weet-vaptasa m.-.üeine. 1 ll lvh I'-'p. .01. Me (.or -
It thus apiv.rs iii.it the l.iw ab-id.u.-ty o.r'oiiis th.-; niie I 'ttayosf. . 1-; Ind. l!t. 'Ihe Sta'e v
fh-oph-ofile State t in an ifaccrc and s -II wlii-ky. j
ä tr, Trf.rrer.; n 1 beer tor n,r a-.;i i.-ra.-: ..r, ar all
xct-t.t fr the government, to oe sro-I to it !u- m.di-I
rti.de- by the f-ople as a 'oevei.ig
Tothecxe.'pti:; as 10 ih. aom: a .n - i t r eign ;
i,,uors mal r the on-tituiio, and laws f th- l i-
sl Slit--, will not be noticed, lor the reason that.
If.- are admitted simply bec.,u-e ti.et cannot be
ro!i bi iil. and not in accordance with the -pint end ;
p.!icv of the State .-t it.Uc. undunicii loiiign Ikj
uors "iuiv or ia iv or n.t be obtained here atv u ding
to th'? contingent action of ot'e-r p wer : an 1 for
the further reaon, that their adm'-sion. if eiainied
lol a part of the object und jmhey of the State
Honor Lev. in ivd-r to s ioplvthe j. 'oi.le wi:!i la.uo.-
a.-! a beverage, nn h 1-. tie- law d-nbly objection ,.;
l.I,f..r.w!ii e.aecorluigtosuclia view, tlie iiw.le-1
,ignMto1K.,mUtl,euseot r,.luoras a beverage, it
Trohib''t tlie people fr-m 1:1 inufacHiiing for their
own ue. lti-:ts if the law were that the people
might .-at bread lm s!,o.,M not r.5- th.ygi-.dn and ;
grind it in Hour wherewith t. make it. it would be;
anaettopMhibittheople Iron, them-ehes pro-
duciii"- and tocomiK-ltaem topureliase from abroad j
;!fire and pro-perity of the cople. 1
We assume it a est VlV (1i ''. ,i','lr
t in question is absolutelv prohibitory of the man- 1
..o.'. ,.n,i .wen a bev.-ra-es bv the 1 oh-
of this State, of whiskey, ale, jorter an I beer. Hie ,
opinion his been advanced that the niaoufaeture for i
Mlc out of this State is not prohibited, but it h.w I
it v 1 ut , .-..i r . i r -
not IIIC .-'ll' iUlUCT Ol ;i MM'!"- , .m i im; iM.i.iiH. in 1
that law which prohibiUthe di.,tribution of pauper- j
tu and enm, disease anddeatn, ainoine,ut home
l.utpc nniu them to be scattered amongst our neigh
i not to be envied. An 1 we rn ly a- well ri
mark here a. anywhere, tint if the manufacture and
sale of these artielei! ar profKT to be carried on in
the State for any purpose, it is not competent for
the poternment take to tnke bu-in--. from the
jople and inonojK)lize it. The government cannot
turn and become the sole dealer in medicines in the
State. And why? Because, the businca. was, at
and tie fore the organization of the government, and
iprot.erlv at all times, a private pursuit of tin co-
pie, as mu' h so ai the manuiacture an-t sale o j
1 . 1.. .. ..I.vd. m1 il. d.a.nrwf in b.1 '
IiriMlin. LOT) ICrO, CM I IN JUl'l Iii'" Ut auu - in v..it vi I
fee a"l rice! ! aVl the r .Wns? of pot..! and the
rovcrnment w as organiznl to protect the people in
whit thev might need to cat aniuniik. it woui.i ed Irom legislative inter! eroiico, irrespect-; various noxious suhj-cts; and if the brew
invve 'the principle of an act to annihilate the j i:,tlltni ,al chocks and guards. I cries and tasks of liquor are a nuisance.
State bvsLirving the people constituting it to death; .,. ., .. , , ... 3 r! , , . 1
M, sL-h legislation would hardly coiiiport, we j Should we hnd however, m the course of ( why have thoy not ben prosecuted and
think, with acon-t'tution e-tabii-hed to promote the this investigation that the constitution of olir , abated also? Wliat wag ihe need of thu
tuch pursuits from the depreciation of p.)wcrful and iojisas habitually ami tlnuig htlessly asv -lnwIeindivMuals,
the baron of the middle ages ! j M of t,R, ,.(riSt;lutit) ,.,': perpetrab-d by
nhr.m thev T.ere too weak to resist suiglc-h ait led I . , . . 1 . . 1 :. c
lift" ll for the government to ,cie,.pontho,eitlH' legislature m ennetmg laws, and in 1-
tur-uiu is subversive of the vert object fo;- which
.... 1 .,..:n. :..
it w.n ct-eateiL 4A government is guiltv of an in-,
aMouuon the facilities of industry jessed by j
iud'n idual. when it appropriates to itsclt a p-otieular 1
of Vudu-trv. the IrnJaca of nchange and
brokerage tor example; or when 11 HCiis tne rxciti
pive privilege of conducting itJ. ,Sa-v's nolitical
. ii.i t 1
. r ; v0ingi of a public character such
. ' V ublic highways, providing a uni-
jf., that a single individual has not
. . . m A A
' ' i:iplish,aud which poverument must,
' , rfecute;but tliey are not tue ordinary
JtC private citizen,
tertiinly as the etier?! rule, and we are
prepired to name an exception, the goveni-
iaunot eniKC in.
. ' . ois is ill we whall here pay on this point. Time
- space forbid i4at w. -h.dd cla'-.r.te 11 Iba
,rise hi the c!i-e.
Tho question now proHi-iiti itir.
.Secondly. ( onU th. legislature of
en.tet the prohibitory liquor law under ennsidera-
! Ft w, if ony. judicial decision-' will bo found to aid
us m investigating tkis.mcstioii, as no such law, in a
Uniting the Islathevror.has fill oflatc. I en
tel. jroi.ie twelve hundred veai-s ago, Mahoin-
jjtate. to show the extent of legislative iower: hut
it : and b-iii'z :
r.i.lv toe si.Iejmlires ri wli.it tlieir
safeie. in the
iii'iies governed, respectively re-
i"j!t.' f-r itrjor. in m: Cif iiidi'O ftf our s:tor ! "i . i i .1 1 1 i tail Ij
.pih.-d. could presenile what the people should t Jimitiisln d bv a legislative declaration.
.mddiink.w;,a,.olilieaInv.r.,li:ud religious creeds , w, le-isIatUP-has a li-ht by the COll
thev should beii'.'ve, and punish hcrvsv bv buriunfr . 1 . ' lllv-
. - . I '... ........ I. .1...... ..1. 1. . .
the -take, all f..i the oublie ''-.od. Even in lireat
P.Hr ain. 1 -t-emed t have tlie most li'.n-ral ei.nstitu-
L;,.,, ort -,u ,. eontin.T.t. Ma-n.i dura is not
0r.utiij-ieitt polencv V) re-train the action of l'-irU i-
ment, a-- ihe jialiei.Iry do iui. as a settled rule, bjimr
I Ilin ilt Iii" 1 11; til l.ll gj liJ. it- 110 'I lo.i , "int
laws to the tc-t of its p,oi. h:. Iaw are there
vei-f'n-o n o-.- i-ion.tll l.v itidieial ei.nstnietion
j,,, lClv v. a-have written c -n -titutions which are
tl,t. -Uorenie law. which oar h-'id.iturcs are sworn to
... . . . . ...
s,;.Hu t. w uluii whose restru m-ns thev must hunt
their ;m 'i'iii for the public w. lfaic. and whose barii
crs thry cannot overleap, under any pretext of sup-
posed safety of the jKople: for along with otir written
cons'itmion we have a judiciary whoedutv it is, a
, ,. . . .. .
the onlv means o -'-curing to tue people sab tv tr im
legislative aggression, to allied all legislative action UeiaiV 0 Hal Sliail De jn-milttetl, ami What
without the pale of those instruments. This duty of removed, whether they be, in fact, ntli-
iheju.ii-.ialdejurttm nt.iii thiscoiuitn, v as.h iiioii- sanc. s or not. So with Congress in rela-
-M-.tted ! C'liicf Justice M irsli.dl in Mnb.-rrv vs. ,- . , . .1 1 ; . 7 '
Madison; 1 Cr. h 1..I, and has ,;necl.een n-or-ai,- J.V, ' l,U 11,41 1 hW"Y r o'nmerce.
.zedass.,tt!ed American law. The i.mim-ahme h'' 'ir'' public for jmrpoSCS of naviga
,tu ted. therefore, a aj.i.llc t to legislative jo-.cr, is tiou. and are jn-rhaps, completely under
hcie without in-;u:iijgi. !,,. legislative j)owcr. So the legishiture,
Xor do--.- if prove th.- p.w t-rof the Si.ib- when the praotiee was t li'-nse hoiiS'.-t:
h-gisliiure k onaei I lie law i:i tjiP-siiui. to j f,,r the exclusive retail of spirituous liquors,
show th.'.' h:- Supreme C-diri of 1 1 1 l.'ni-jihat i-. the sah1 of Üiem in particular quan-
t.il S-':ao-; lf!s ih-.-i led th:t ir e;i;ioof do- 1 titi.. mi iirti.oil-n. td .. .. ..i.l,l ....
, 1 ... . . c ,. ,1. .,
R i-K.periine. or that
l;;urt ean only tte-iare oiu sueii raie 1 be granted, and could make the viola-ion
laws as coulli"f with tie' restrii'.ii.ns ini-j(.f the conditions eau.se f forfeiture wheth
j) .- 1 np'.n S :x? p'.wer by the C'js ini-1 .-r it was such as rendered the retailing
tio.i d" rni eJ Slates; and if, ia th;.t o:- j house a nuisance or not, and whether it was
siiititi-.ei the Si.'t-. s ai- not restraim-.l Irom'so denominated or not.
l,fl . .i,...:.!,..! il.-.f a S mar thioivo is
IVvrs. 'J l..
Vi.,,. j:,Vv- d--priviiig ili-:n ..I vesvd
. t 1 . , 1 1 e .1 1 .
'V'1 1:1 pi-p'-y. -'-i'1 l' "'
n;c m . n.io oiK.11.1eo 10
( ouri f this Sia'e h i-' decided tl.at, tin-:
cannot tl--rivc the c-i;i7..:-?i of the right of
Mead. 1 Uhokf Mf.K
t nu theivClv. toiiow lhat be-
,, ... e .1 1 . 1 o. .
- castmition of the tin cd States
does hot p;-,.nnH rva:e icoii-i:n.n lairing-
mg the li'ituial rights o tie- euiz-ei. such
j,..;,,,, Vali . Tl.- Cotisti uiion of
1 - 1 . . . , 1 ., ,t r .1
lb- t "U- d Siates may iff. but that of the
SbaV mav. itihibi' i.
li-ituinJ rights ot tie- i-uiz-ei. .-uch
And so. la-b-e-i, according to m:;ny eini-
iient jud o-s, may principles of natural jus -
ticc. iadepen dent of all coiistitutioital re-
strain!. This doctrine has been asserted
- jj,,,. ,)wv S;iys
in re. in aiiiip'ws . inen, 1 ii.h im.
c nave stud
- . . . . ,, , ,
:.b at the only provw oi.s in the 1'edcral or
jS ri'e C oas'lUltlon-restrictive ol the p., r
. ,,f ij... Je Mslat life. A'c." are, Are. There are
,.,1,,. rf,,. rights, and the right of
. . . , . ,, f
pH.perty is aim Ulg them, which III all lice
governments must of nec"SitV be protect-
f,-, ,. State does, in fact, sti Hici.-ntl v protect
tfitur:tl rights from legislative inb-i f.-rence,
. , . P , . f
w it sundy does or it h gri -vou-U (h f'ct-
. . , 1
ive, r. will not ijeoune neeear 1 r us 10
enquire w lietlvr in an v e ent, ir might Ije
0 to fall baek upon the doctrine above
, . , - ,1
So unhesitatingly asserted
DvX'S ot'.r i-onslitution, llvn, prohibit the
passage of Mich an aeUi.- lhat now being
considered? A dictum is ij noted by conn-
sei from the ojiiuion in I'ejdy v. The State.
I Ind. Hep. 26" 1, that "it is competent for
the legislature to declare any practise (h-em-
cd injurious to the public ;i nuisance, and
to punish it accordingly;" and hence, it is
reasoned, titiy properly; but dicta, as conn-
Ho well know, are not necessai ilv law; are,
0loriv unconsidered first impress
' D .
ii ll I 1 Ä . . . .
which, all legal experience proves. a.C
thrown out by all judges 111 giving opin-
nilclv more excusably. Scarcely and dab-
4!a!o opi .1 is written nt containg them
Tjiis (i. ..f;,,,, uo utuler.st.otI, :
, . . .. , e
misled hy thorn f crroneo
4 1 i. 1.. : I . t 4 . A.
And it niiHt be manifest to eery one,
on a moment's consideration, that the doc
trine just quoted cannot 1m: taken for law,
and could not have been .-o intended, in an
unlimited .sense, by the learned judge whoj
uttered it. "he legislature cannot declare
any practice it may deem injurious to the
public a nuisance and punish it according
ly. It cannot so declare the reading of the
llible, though, perhaps the government of
Spain once did. It connot ko declare the
pr;tetieo of worshipping 1 '-! According t
the dictates of one's own eonsciencetr'though
perhaps Massachusetts, in the days of Roger
Williams diJ do if. It cannot so declare
the practice of jeaehfhg schools, though
perhaps Virginia might have done in
i V ' 1 " V",'0"!"!-, J
rklv wrote -from
i 1,111 w
k Gotfthere are no free
injunous to tho public
legislature might deem such prac.icc to b;
and why? liecanse the constitution for
bids such declaration and punishment, and
permits I he people to use these practices.
So with properly; the legislature cannot in
terfere with if further, at all events, than
the constitution permits. In short, the
legislature cannot forbid and punish the
doing f that whi'h the consti-ution per
mits; and cannot take from the citizen that
which the constitution says he shall have
and enjoy. If i: can, then we think all will
admit lhat the constitution is worthless, the
liberties of the people a dream, and our
government as despotic as any on earth.
And we may here remark that the legis
lature can add nothing to its power over
things by declaring them nuisances. A
public nuisance is that which is noxioiis.of
fensive to all the people who mav come in
contact with it: and the offensive" quality is
i:i the thing iis.df, or the particular man
ner of its use, and is neither increased nor
-- ' ii"iiioit auti pnniMi, e en IO II1C
j forfeit llf of proper! V, it mav thus deal wiih
I without tirst declariti ' the mattera nuisance
. ...,.,. ....., 1,., . Z . .. ,1. l. .1 Ä Ä ' '
! . "l:, U l l !VV "-T lh COn
I . . 1 I 1 1
I Mtu'.ion to prohibit and punish, it can not
thus deal witli even tliougn it iirst fax tip
011 it that odious name. To illustrate: the
legislature has power, perhaps unlimited,
over the public highways. It provides for
opening, repairing, and vacating them.
Thev ate llt the private protHlty of the
..:,;. mm,, 1 .i..,.,, .1 r
itizen. 1 lie h'gislature, therelore. mav
, c; . , ! .
r 1 1 1 i , 1 ,,
condiuons upon which the lisence should
! n,,L.,,:(... lohihit ,v .Wlu.t them o.ol
. r. ,
; order tle-m destroyed, beoaue such acts
j would invade priva'e properly whh h the
j e oisiiiutioti protects. Still th. fact may le
; thai the path and the s'orc room an; nui-
i - 1 11 1 .
sanei-s which I have 110 right to maintain;
: par wnne 1 nate 111 rigni to use my own
houses; and this the legislature may have
j the province of the judiciary to conduct
empnrv. and declare the fter, or deny it, as
th- truth may turn out tobe. Many thino
1 1 i- 1 1 1 " 0
. by such proceedings, have already become
; established nuisances at common law. Iiy
! this mode, when a party loses his trade or
i property, he does so because of his own
I- 1 1 i ...
..taub, and this according Jo the judgment
t ins ttocrs, and the iirovision 01 the "n-
i-ral law of the land, and not bv the tv
ny of the legislature whose en.u-tmetit"
. 1 .1 1 t 1 1 l-
j ,,t be the law of the land. See nume
cases collected on this point in the 1st C!
ii - ral law ot the land, and not bv the tvran-
point in the 1st Chap-
(t. r ot liiaekv.ell on lax 1 ities.
; In accord .nee wuh ibis doctrin v find
J t!iu t th1? cri.niii il coile of this State has
! ever contained tho general protiion that
any ptr.son w 110 erici 1. ot tnaiutnineil a
1 nuisanco Should be lined. c. nnd thai
iho nuisance inißhl be nbüted; 2 It. S. p.
1-2S 12U. See's 8 and 9 a provi'ion tint
suuinits it 10 tue coimtir. m wit. a itirt
j tinder the charge ol the'Court, to de
t c . .
the fite of the uumnce. Uns provi
th courts liavn been daily cnlorciuj' ai
1 special Uw upon the subject.' We have
assumed thus far upon thin branch of the
case, that the constitution protect on-
vato property anil ptirsuiis, and
I private property by va of be
j well ns medicine. It may be 1
the use of
may be necessarj.
at this day, to demonstrate the fact.
Tho first section of ihe Crst article de-
j clarrs, that all men are endowed by their
j (Jioutor u it!i certnin uaulienable rights;
! ihat among ihese are lif. liberty and the
puisuit ol happiness. Under our con
siitition. then, we all hive f.m natural
rights that hivenot been surrendeied,
and which government cannot deprive us
of. nnicss we shall fiit forfait them by
our rrimeg, and to secure to us the enj iy-m-nt
of the6e right is ihej;reat end and
aim of the constitution iuelf.
It thus appears that rights existed an
terior to the constitution that we did
not derive thein from it. but esoibli-died
it to' secure to us the enjoyment of them;
and it here become?) important to usee
tain with some degree of precision r .t
these rights, nntunl rights, are.
Chancellor Knut, following Blackstone,
says: to!. 2, p- 1. -Tho absolute (or na
tural) rights of individuals m iv be resol
ved into the right of personal security,
the right of personal liberty, and the
right to acquire and enjoy property; not
some property or one- kind ol property..
but, at least, whatsoever the society, or
gnnizin government recognizes as prop
erty. How much doeathi.s right embrace,
how far do.-a it extend? It undoubtedly
extends lo pursuing the trades ol in tbu
fjcluriur. buying nnd selling, nnd to th
Theje arts .are but
menus of acquiring and enjoying, and
are absolutely incidental to them. What,
we m)- ask. is ihe right of prnpeity
worth. Eiiipt of the right of producing
and usiii it? 'The right of property is
uaXrVittrt,Pl Dy obstructing the free
rO the means of production.
iAfj eliiTy depriving the proprietor
TTJct ot his tand,' says Polit.
K'dn Arrow Smith v. Burlinser. 4 Mc
ean on p. 497. it is said: 'A freeman
oiny buy and sell nt his pleasure Thi
tight is not fAmsociety but from nature
He luer gave it up. It would lie ainus
ing to see a man hunting through our law
tilioks lot ntitb-.riiy to make a hmgain
T- the same effect Lord Coke. 2 Inst p.
47 Rutherford's Institutes, p 20. This
reat natural right of using our liberty
11 pursuing trade and business for ihe ac
quisition of property, nnd of pursuing
our happiness in using it. though not se
cure iu Europe from the invasions of om
nipotent parliaments, or executives, is
secured to us by our constitution. For.
in addition to the first section wh'ch ue
have quoted, and aside from the fact thai
the very purpose of establishing the con
siitution was such security, by Section 11
Art. 1, it is declared tht we shall be
ecure in our persons, houses, papers and
.-fleets from unreasonable seurch nnd seix
ure." Hy section 21 we have the right
10 devote our labor to our own advantage
uid to keep our property or its value for
own use. si ihey cannot be taken from u
without being paid for. And by Section
12 11 is declared that 'every man. for in
jury done to him in his person, property
or reputation, shall have remedy by due
course of law. These sections fairly
construed, will protect Ihe citizen in tin
use nj his industrial faculties, and iu the
enjoyment of his acquisitions. This doc
'rine is not new in this court. In Doe
v. Douglas. 8 Hlack, 10. in speaking of
'he limitations in our constitution upon
he legislative power, it is said, thejr
restrain the legislature from passing a
biw impairing the obligation of a con
tract, fiorn the performance ol a judicial
act, and Irom any flagrant viola 'ion ol
the right of private pro.periy. This lat
ter restriction we think, clearly contain
ed in the 1st mid 24th sections of the 1st
article of our constitution of 1816.
We lay down this proposition, then
s applicable to the present case: thai
he right of liberty and pursuing happi
nss secured by the constitution, embra
ces the light of each comjws mentis indi
vidua I. of selecting what he will eat rind
drink, in short, his beverages, so far as lo
may be capable of producing them, oi
they may be within his reach and that
the legislaiure cannot tnke kwm hy di.
rert enactment. If the constitution does
not secure this right to the people, it ge
ures nothing of value If ihe peph
are subject to be controlled by the legis
Lit ure iu the matter of their beverages
so they are to their articles of dress and
in ihir sdeeping and waking And if
the people aro incompetent 10 select their
own beverages. ihy are also incompetent
0 determine auythingin relation to their
living, nnd should nt once be placed in a
tale of pupilage to a set of govern
me nt sumptuary officers; euh-gies upon
the dignity of human nature shou ! ce8Se.
and the doctrine f the competency of
the people lor self government be de
1 dared a rhetorical flourish. If the gov
rntnent can prohibit in practice it plea
sr, it can prohibit th? drinking of told
Water. Call it do that? Ii not. wh) nni?
If wc are right in this, that the constitu
ti-ui restrains ihe legislature Irom passing
1 law regulating the diet of the people, a
sumptuary (aw, for that under consider
ion i such, ii iin-itier wh-ther its object
ne moral or economy, or both; then ihe
legislature cannot prohibit the inauufac
1 urn and sale for use as a beverage of ale,
porter beer. &c, and cannot declare
.hose manufactured, kept for Sale and sold
for lhat purpose a nuisance, if such is
the use to which those articles are put by
the people. It all resolves itsul f ino
this, as in the raso of printing, worship
ping God. eke. If this constitution
noes protect the people in their right, the
legislature intjr prohibit; if it does, the
legi-datur- cannot. We think the Con
stitution furnishes the protection. If it
docs not in this particular, it does, as
we have said, to nothing of importance.
and tea, coffee, tobacco, corn, bread, ham
and eggs mav next be placed under thu.
ban. The very extent to which n con
cession of the power 111 this case would
carry its exercise show it cannot exist.
We are confirmed in this view when we
consider that at the adoption of our pres
ent constitution, there were iu the State
fifty breweries and distilleries, in which
a half a million of dollars was invested
five hundred men employed; which fur
nished n market annually for two mil
lion bushels of grain, and turned out
manufactured products to the value of a
million Öldollars, which were consumed
by our people to a great extent as a bet
erage. With these facts existing, the
question of incorporating into thecon i
tulion ihe prohibitory principle was rn
peatcdly brought before the constitution
al convention, and unifonnly rejected
Debates in ihe convention, vol.2, p. p
1434 and others. We tre luriher stieng. b
eueil iu this opinion when we notice, as
we will as matter of general knowledge,
the universality of the use of these nrli
cles as a beverage, ll shows the judg
111 jut of mankind as to their value. This
1 may be triced 111 several parts of the
ancient world. Piinv, the nalura'ist
states that in Iiis lime it was in general
use amongst nil the several nations who
inhabited the western part of liurope; nnd
ncccording to him, il was not confined to
lb northern countries whose climate
not permit the suecesslul cultivation
of the grape. Ho mentions that the in
habitants of Egypt and Spain used a kind
of ale; and 6as tint, though it was dif
ferenilv named iu different countries; it
was uni vers illy the same bquor. See P.
Nit. Hist., lib. 14. c 22. Heroitatus.
who wrote five hundred years before .Pi
ny, tells us that the Envi'tHus usd a liq
uor mado of barley. (2 77 ) Dion Cus
xius tillu les to a simir beverage among
ihe people inhabiting the shores of the
Adriatic. Lib 49. De Pannoui$. Tac
ttus stites that theancienl Germans, for
1 hr ir drink, used n liquor fron barley or
other grain, and fermented it to ns to
make it resemble wine. Tacitus de -non
Gem.. c 23. Ate was also the favorite
liquor of ihe Anglo Saxons and Dines.
Il the accounts given hy Isodorus and
Orosinos of the method of making ale
among the ancient Britons bo correct, is
is evident that it did not essentially dif
fer fioin our modern brewing. They say
that the grain is steeped in water and
made to germinat; it is then dried ami
ground; after which it is 111 Timed in
certain qmmity of water, which is aft. r
In Biblical history- we nre iold that th.
'vine, a plant which hears clusters ;
grapes out of which wine is pressed, so
abounds in Palestine that almost every
family had a vinpyard.' Solomon, said
to be the w isest man. had extensive vine
yards which he leased to tenants. Song 8
12; and Daniel in his 104h psahn. in
speaking of the gr-mness. power of God,
says, verse 14 and 15. 'He cnuseth grass
to grow for the cattle, and herb for the
service of man. and wine that maketn
glad the heart of man. and oil to rnnk
his face shine, and bread to strengthen
Il ihus appear, if the inspired writer
is entitled to credit, that nnn was made
to laugh as well as wep. and that these
stimulating beverages werecrented by the
Almighty expressly to promote his social
hilarity and enjoyment. And for this
purpose hath the world ever used them,
ihey have ever given, in the language ol
another passage of scripture, strong drink
to him that wag weary and wine to those
of heavy heart. The first m'racle done
by our Savior, that at Cana of Gallil. e.
the place where he dwelt in his youth
and where he tnel his followers after his
resuirection, was to supply this article to
increaso the festivities of a joyous occa
sion; thnt he used it himself is evident
from the fact that he was called by hi
enemiea a wine bibber, and he paid it the
distinguished honor of being the eternal
memorial of his death and man's redemp
From De Boa's compendium of th'
census of 1850. p. 182. we learn that at
dial date there were in the United States
1217 distilleries nd breweries, with a
capital of S8 507.574. consuming come
18 000 000 bushels of grain and apples
1294 tons ot hops, and 61 .675 hocsheade
of molasses, and producing soin 63.000.
OOO gallons of liqu-r.
By the National Encyclopedia, vol. 12.
p. 924. we are informed that f..r the year
ending January 5. 1850. there w.re im
:-rt-U into Great Britain and Iceland
7. 970 067 gallons of wine. 6 940 780 oi
brandy, hint 5,123 123 of rum. and thai
ih-re wer tuaiiufeiuied in that kingdom.
25.000 000 gallons.
in the Olli vol. of the same work, p
329. il is said:
The ineis one of ihe most iinpor
taut objects of cultivation in France.
Wine is the comiiioi: b vere of the
people of France, nnd et Piofesor S Hi
nan. of Ytle C-.llege. on the I7th oi
April I85l. then at Chalons, writes, vo!.
I. p 185. his visit to Europe:
"In traveling more than 400 mil.s
through the rural districts of France, we
have seen only a quiet, industrious popu
lation. peaceable in their habits, and.
lar as we hnd intercourse with them
orteous ami kind in their manners. W
have seen no rudeness, no broil ..rtum-i'
have observed n one who uns not
crutly dad. or who appeared to be il!
fed. We nre told, however, that the
French peasantry live upon veiy t-mull
-upplies of food, and in their houses are
Satisfied wiih very humble neenmmoda
tions Except iu Paris, we havt seei. n.
instance of npperent suffering, and few
even there; nor have we Seen a single in
dividual intoxicated or without shoes and
a a a.
We have tnus shown, irom what we
will take notice of historically, that th
ose of liqu is, as a beverage, and nrticle
of trade and commerce, is so universal
that ihey cannot be pronounced a nui
sance. The world doos riot ao regard
them, and will not till the Bible is dis
carded and an overwhelming change in
public sentiment, if not in mn's nature.
wrought. And who, as we have risked
before, is to force the people to discon
tiuiiM the use of beverages?
Counsel say the maxim that you shall
so use your own ns not to injure anothrr
Justifies such a Uw by the legislature, bul
the maxim is misapplied; for it content
plates the free u."e. bv the owner, of Iii,
property but with such care ns not to
trespass upon hi neighbor; while this
prohibitory Uw forbids the owner to use
his own in nny manner, as n beverage.
Il is based on the principle lhat a man
shill not use at all for enjoyment what
his neighbor miy abuse, a doctiine that
would, if enforced by law in general
practice, nnnihilnte society, make eunorhs
of all men or drive) them into the. cell of
the Monks nnd bring the human
nn end. or continue it under the uirectio
of licensed county agents.
Such, however is not the principle
upon which the Almighty governs the
world He made man n free ngent. end
1 o give him opportunity to exercise his
will, to bo virtuous of vicious as he
should choose, he p'aced evil as well as
good before him, he put the apple in'o
ihe garden of Eden, and left upon man
the responsibility of his choice, mtde i:
1 in oal question, and left it so. He en
acled as to thai a moral, not a physical
prohihi'jon. He could have easily enact
ed a physical prohibitory law by declar
ins; the fatal apple a nuisance nnd remov
ing it. He did not. His purpose was
otherwise and he h is since dei laietl thai
the tare and wheat hall grow together
to the end of ihe world. Mn cannot, by
prohibitory law be robbed of hi free
agency. S'-e Milton's Arcopagitica or
speech for Liberty of unlicenced printing,
works vol. 1. p 166.
But. notwithstanding the legislature
cannot prohibit, it can. by enactment
within constitut:onil limits, so rgu'ate
the use of intoxicating beverages as 10
prevent most ot the abuses lo which the
ue mav be subject. We do not siv thai
it can nil; for under our system of gov
eriiment. formed in a confidence in man'
capacity to direct his o n conduct, de
ignd to allow to each individual the
largest libertv consistent with the welfare
of the whole, and to subject the private
affairs of the ciiiien to the least possible
government interference, some excesses
will occur, and must be toUrited. aubjecr
only to suth punishment as may be in
flicted. This itself will be preventive in
its influence. The happiness enjoyed in
theex-rcise of general reasonably regula
ted liuerty by all overbalances the evil ol
occasional individual exceus. -Order1'
must not be made to reign here as one
at Warsaw." by the annihilation of H
freedom of action, crushing . .11 1 . in ire. I.
the Soirit itself i f liberty. WilhiiF.ii,
ih.- language of ihe lien illustiious Bor'se.
h-n defend 111; the revolting Atueiiciu
C 'oiiies. something must be pardoned to
ih. spirit of lil-rtT.
What rrgulntious of die liquor buiiie.s
would he r ontitutinual. it it not for u
to indicate in advance; but those which
ihe legislature may fr .in lime to lime
prescribe can be brought hy the citizen to
the constitutional test before ihe judicta
ry. and it will devolve upon that depart
inent to decide upon their consisted v
with the organic law; in fiel, the que
lion of power. o usurpation, between
tho people and ihe people's rep resolu
tives; and iu doing this, so far as it mav
devolve upon US, we shall chreifulh
throw every .doht in favor of the latter
and of stringent regulations Such isilo
constitution of oor government Mi I- v
Te State. 4 Ind.. 342 Thomas v. Tie
Board of Commissioners of Clay County.
5 Ind.. 557. Greene si I e Township v .
Black. 5 Ind., 557 Larmer v. The Tru
tees of Albion. 5 Hill 12 1 . Dunham v.
The Trustees of R .ches. er n Cowen. 462
Colter v. Doty. 5 Ohio Rep.. 393.
Il is like the case of laws for th- en!
lection of depts. The constitution pro
dibits tlie passage of nn net impairing the
obligation of a contract; yet the legisia
lure, may regulate the remedy upon con
tracts, but must regulate within such li
mils as not substantially to impair the
remedy, ns that would indirectly impair
he obligation of the central itself.
Gautly'.s Lessee v. Ewing. 3 How., U.
S R-p.. 707.
Regulations within constitutional li
mits, we have no doubt, if efficiently en
forced, will arcomplish. as we have sai l,
nearly all that can reasonably be des re.i
The iegisbilure. we will add. may 1111
doubtedly require :h lorlci t ure of such
particular portions of liquor as sh . 1! be
kept for use in violation of proper regu
lations, as in the case of gun powdei
stored in a populous ( i y, nnd this for
feiture will be ridj.i.lge.1 by the jo'iiciari. ,
see Cotter v D ity 6'upni; but neither a'l
the gun powder nor liquor in the State,
accompanied by the prohibition of the
further in 11 uro:! 11 re and use ol the arti
ole. can be forfeited on occount of th
improper use of n given quantity, be
au-e th entirely nf ie;iht-r of the aili
cles i? a nuisance. It is not pretnnlrd to
be so as to gun pawner, and we think we
have shown it is iit so as to liquor.
S . it is douhtlHs competent for the
if t sl-iturn lo establish pr-.per police re
nub. lions to prevent the introducing ol
lor. ign p.. up rs &c , f..r llo r is a palpa
ble .tinVfut e bei Ween hi dudln" for
e'gn. and expelling a c i 1 iz-n im up. r.
Th". coiisiitu'i.oial convention thought it
ought have power t pr bititt the mgre-s
of foreign, w hile il might not to compel
lie .gresü o r. sidnt. negrors.
ao nj u'-ti regulations, may me mtro
Miction of iiaue-S be (oeviled. for
tllef i 4 wide 'lilFeieilce belWfell assum
log to d-chirr thai given thing is a mil
suice. rind Ihe proh.bnii.g ol the intr...
luclinn of what is conceded, or sh.ill turn
out to be. a nuisance.
And. iu tact, the restrictions in tin
constitution upon the legislative p-.wei
may operate for the benefit of th-.se liv
ing under, and in some sus a party to
its pr visions. and not for that Tang
rg It will not be denied that but f.u
he constitution and laws of the United :
Stales uhit h imp sm the restriction th
S'aie. as an independent sov.-rejgutv,
might exclude from her b der nil for
eign liquors, whether nuisances or not
ui. less, indeed, the oocuine upon whi.h
Greal Britain was defended in forcing
trade M-iih China at tne c.ii 'ii's uiouili tie
correct, that in this day of Christian civ
ilisatton. it is the duty of all nations to
10 admit universal reciprocal trade and
commerce, a doctrine, not vet. we think
incorporated into ihe code of iair-rnutionnl
Atid it would not follow that, because
the Staff might prohibit the introduction
of foreign wheat he could, therefore,
prohibit the cultivation of it within the
State hy her own citizens. The right of
ihe State to prevent the introduction of
foreign objects doe not depend upon the
fact of their being nuisances, or offensive
otherwise; but she does it. when not res
trnined by the constitution or laws of the
United States, in the exercise of her sov-
This, however, i a topic involving
questions of power between the Slate ami
Federal Governments which we do iii
intend discussing in the present opinion
We limit ourselves here lo the quest i -n
... n juv.-, .i inr irijuiufe over tne
property and pursuits of the citizen under
ihe State constitution. The restriction
which we have examined upon ihe legas
lative power of .he Stale were inserted
in he constitution to protect the minor
ity from the oppression of the m .Jority.
and all from the usurpation of the legis,
ia ure. the members of which under our
plurality nysiemof elections. inv be re
turned by a minority of the pe..,,lo The
fhould therefore, be faithfully maintain
ed. They are the main ,fe guipls to ihe
persons nnd property of the State.
It is easy lo see that when the people
ir. s.u . rting under loseS fr.,m depr.-ci-t-d
bank paper, a feelihR might he amused
lhal would, under ur plurality yttem
return a majority to th- legislature which
wo.ibt declare nil banks n noiance. 011
Vi u rtA.a. . . t a V. . . a . . 1
fisrate their p .per and the buildings ficn
hu h ii issue.
So wiih . almads. when repented whole
8 de murders are perpetnted fir some of
hem. And. iu Great Britain and France,
we have example of the con fi r I i'n of
the properly of 1 he churchej, even; w hich.
here. lh same consn nlion thai protects
ihe dealer in lieer wnuM render sae from
invasion bv the legislative power.
Ir. our opinion for the reasons given
above, the liquor act or 1855 is void.
Let the prisoner be discharged.
Knowing Ihe anxiety of our render to
learn the fate of the Indiana Liquor Law.
we lay evervthins? else aside to mke room
for the opinion of the Supreme Court on
THE POLAR REGIONS.
There undoubtedly exists a very differ
ent state of things around the North Pole
from what has generally been rsopjiosed.
Capt. Symes ascertained that the Arctic
fowl migrated north to winter, and assert
ed that north of a certain ice field was open
wat-r. The.s.. cireumsrances he useJ as
evidence in support of his theory of the
earth being concave or hollow.
Ilecent discoveries consequent upon the
search of Sir John Franklin, and the ob
eervaiions of o-l.er Navigators, confirm
Symes' statement as to the Arctic fowl go
ing norlh to winter, and prove his sugges
tions coriect as to an open circumjiolar
sea. Hut no one, to ,,,y knowledge, ha
ventured any speculations 4iJ to the cause
of such an anomaly. Wc shoull consider
i: peif cily reasonable to suppose thai the
higher the latitude tho nion intense tho
col l, until i reached the Pole, and this
wo al 1 undoubtedly 1; the case, if there
were no ca:;e '. counteract and produce a
Late discover"'.' prove lhat af er passing
over the iee fiel 1, (or zone, as I shall call
it,) northward the ige field gradually loses
its firmness, until it Iwrncs uusafc to
venture further, and the exploier finds it
-ary to return; but his experienced
eye ean determine from unmis t,ken evi
dence ia the atmosphere, that Ftill further
north is open sea. Af er carefully consid
ering the evidence in the case, I am of the
opinion that the statement of the existence,
of an open s.-a around the North Pole, is
correct. And if correct, why? I find that
a current sets south through" every strait
or channel leading from the north, frequent
ly carrying immens. fields of ice into more
southern waters, where they are dissolved.
To account for this I supjiosc that in the
Polar Region there is an extremely deep
sea wiih an upward current of compara
tively high temjoraturo, whicli so modified
the atmosphere above it, as to render it not
only a comfortable but delightful plae,. for
Arctic animals and fowl to winter in ; and
isl inds there, may be clothed in green du
ring the year.
The bottom of this sea I supjxise to le
heated by the internal heat of the earth,
which causes the water to rise from the
same principle that heated air ascends from
the earth, or ho, water rises in boiling.
Air when heated bee. un-s raritied, ascends.
Colder and heavier air taking its place; this
will be tue case so long as the h.-at is suf
ficient to rarify one part of The atmosphere
more than another; such is also the case
with wafer, when heated it expands, and,
becoming lighter in proportion to its bulk
than cold wavr. ascends, and cold wa
ter takes i s place. Now we will apply
this principle to the circtimpoiar sea; sup
posing iis Itoitom or lower strata of water
to be raised in t mpeiature almve that f
the waters -f circumjacent seas, it Would
arise, and und'-r current from those sens
coming in to supply its place, would In
come heated in turn and also ascend, pro
ducing a c or.i.iu il upward current, bring
ing up such a temperatur. as to nvlify
the atmosphere Covering this s.-a; the wa
ter coining to the ttirCace naturally flows
soiitheruly from th polar center, until it
becomes chilled and ceases to keep t:p the
temperature ot the atino-phcre hi th" seme
ratio that it los-s i s own best, until it lo
gins to freeze as it flows along and forms
an icy z-:ie equidistant from the p de.
The short summer in that region w.uqld
o little toward dissolving the i.-o which
would accumulate during the 1 ng winter
if theie were nothing to keep th" tempera
ture of the water above fvn y.'vvjr jwint.
Ie seems to have been tlesi .j by Cre
ative Wisdom so to arrang this (lilib.-rto
supppose almost useless) region as to ben
efit nan; for bete. doubt, wimm this icy
xom" a mag.i.i n whence whal and fish
issue in g'cr abii'i lane . piling out uu
per the hri (. ,,f J,N. lU, places and alon"
shores inh ibi'e 1 or frequented by man.
It is not improbable tha an opening mav
sometime occur i 1 the ice sufficient f r the
ingress .f vessels; such an ojioiiing. howev
er, from discoveries already ma le would
be of rare occurrence, and if an en ranee
were effected in this w ay an age might pas
before another Mould occur favorable to
their egress; but by dint of tx-rsovcrance
I have no doubt but a communication arr,,s,
this zone ..f ice will Ik effected in some wav.
S. P. ('."
A "Fast" Child.
Children hate sometime a peculiar way
of saying things very subversive of gravi "y
in the old folks. ' -
Mr. Fred lick Fitzgerald .Smith li i
luxurious growth of whiskers. The lower
part of his countenance w as entirely envel
oped in hair from car to car. The pilous
vegetation stood out in large, matted, tan
gled and curly magnificeitt masses all ov. r
his jaws and chin. Ind.-ed, it was com
monly rejK.rted that he had taken a premi
um on it at a fiir bei 1 by the society f,r
amelioratingthe condition of the Jews, ai d
encouraging the grow iln.f ihe hair."
Nature, if too profus in her gif s in one
direciion, is very apt to correct ihe redun
dancy by a comjx n-a ive dificieney in an
other. So it happened with Mr. Fredrick Fiti
gerald Smi h. All over the tipju r part of
ms neau aooe ins ears was very curly.
Rut per contra:
"He had no hair 011 the top of his head,
Iu the place where the hair ouyht to grow."
Mr. Smi h lodged otia night and break
fasted at the house of Mr, John Stinpkius .
his friend. Mr. Simpkitis had, like cv ry
parent who has children, a very smart lirth
girl. It i, surprising how many niart
children there are n.w .lays! At ihe break -fist
table young Mis. Arab-ll 1 Simpkins
Could not iahe her eyes for one moment
from the patriarchal countenance of Mr.
"Arabella, Ioo, don'i bo o rude," nidg
ed Mrs. Simpkins, primus,
"Aralxdl i cat your toast," frowned Mr.
Rut Arabella kept -staring at Mr. Fred
rick Fitzgerald Smith.
"Rettv remove this naughty girl from the
table," cried Mr. Simpkins, m a rage.
"I don't want to go, ma I dou't !" tsquall
cd the smart Arabella. "1 want to look at
that man a little longer. Don't vou see '
ma, he has ot his head trrottp site !;''
The young lady was living ami doig ,1
at last accounts, but it is diflicu-' to con
ceive how she can survive. t'n- Cummer-
af-j-Whitt 1- sle-p