The New York Herald Newspaper, July 18, 1855, Page 8

8 ‘THE PROHIBITORY LIQUOR LAW. Arguments in the Poughkeepsie Lager Bier Case—Sentiments of the Jadges Adverse to the Law. SUPREME COURT— GENERAL TERM —SECOND DISTRICT. Before Judges Strong, Browa and Rockweil. The cave of the @ agsinst Philip Barvorick, where ‘conviction had berm recently obtained im Poughkeep wie, came up sesterdey before the Supreme Coart, gen” eral term, held in Brooklys, before Jniges Strong, ‘Brown and Rock rell, on » writ of certiorari. Tnere was a large attendance of spectators, and much interest wes ‘canifested in tho proce-dings. The prosecution was represented by Messrs. Campbell aad Taompson, and the Nelsom and Barnard. Mr, Whiting -was present watching the proceedings, Mr. BarnaRp, counsel for privoner, moved his dis- charge from custody, {or the reason thit the law under which he had been convicred was mull and voi3, as being Unconstitutional; ani wlso because ube processings under which he had been convicted were informal and itlegal. Mr, CaPusit, for thé people, resisted the applica tion, He contended that the warrant under which the prisoner had been arrested wus ia proper legal form; and even if it were not, that ander a writ of certiorari the Court had ro right to review the irregularity of the primary procesoings. He referrei to 14s Barbour 340, where the same quest'on was fully gong into, and where Jadge Mascn cetivered the opiaion uf the court, the under habeas corpus—which counsel considaged as of equal effect in this regard with » certiorari—theg’Mad no such right. Ir the wocremt is regular on its face, it is prima facie svflici ot w justity imprisoomeat. judge Strong —Jn tha! case, tow only allegation was ‘that some of the proviscos of tha statute were uucon etitutional, or tlat torre Ww re irregularities in the pro- cerdinge, Bat here thay go furtber, to toe very foun dation of the caze They contend here that thore is no jurudicticn at all . Counsel.—to they didip that case. They said that ‘the law was uncomsucutioaal and roid. Judge Koo, —Jucge Mason did not go that length, Counsel.— Ie says no: bing about tue unconstitaiivnal tion at @), but he takes uptbe othsr pont aad that if .uere is coloravie authority to arrest ihe person, the court will not lock at the regularity of $he proceedings. Judge Strorg.—But the question comes up whether if the court tw satisfies the. the whole atatate coat ring autboricy is entiely nacosstitutioaal ana mull void, the court must vot bold that tue party is not held under competent ano lege) autuority, aud tueresore dis chorge him. Counsel —There is another case in 18 Joharon, 303, where 8 casa wus issued, and the parson arrested—the writ being irregular. In that cuse the court said it ‘would pot discharge the man on » babeascorpus, even though the wrt uncer witteu be had beer arrested was -apsolutely void, because that was not the p: oper remedy Judge Broen.— but you see thet im tvia case the whole precrecings are aseniled oa the ground tina! the Legislatare bad to power to pies such 4 law, audit thay hac cot, then the preoeedipge in the court have no effi cacy whatever. It etrites at"tns very root of the whol dings, becavee the Legsslatrre te limited in ita power; anc if they chore to tranicund that power, tt in a any o.her person took upen them to enact 8, Counsel wished to be understood as not objecting to the right of the prisover to be tried, but only as object- ving to his rigut © be tries ou certiorari or habsas corpus. He referred to the care of 5 Hi), 167-68, which holds that the court carnet look bebicd tue warrant and the affidavit ip any case whatever. and tha: if there was re bl thority for boiding the prisoner, the court uncertase to cec.de on the rea! iaeful autho. rity. He ventored to ga;, that whn proceedings of ‘this kind were commenced, when the oillc«r mado 4 re- turn and presented the warrent, that the prisoner is prima facie suppore cvo be i Inwful cas’ ody, nad the pro ‘ceedings are eli oresumed to be regular. Under a writ of habess corpus or certiorsri, @ wan isto be discharged only op tke ground tha’ he {# de‘ained upoa ualawfal proceedis gs, saice from the fect thar the law is aacon- atitutiopal. Jt seemed vecwssary in this discussion to eo back and what gutdority the Legtelature had,and whether in pearing this law—cot prohintory, but mere- Jy preventing the sale of Uiquore ag a beverage—they bad oversiepped their rights «nd powers. fhe people have surrendered their rights to the Legislature— Judge SnoNC—Qvalfy thst romewbat. ‘Covxss1— Well, say qualified by the constitation. It fe quabfitd eo thee they cepnot pees @ inw which clearly viclates some of ths inalienable rights of man. Bot beyons that ssy there is Lo qualification st a!l and from the very metare of the government canpot be ‘Ths functions of the Legislature are just as clesrly marked as thove of toe judges. Juuge Strbig—the constitution of the ‘Tuired States #Uerantees a form of government to each State, and that guarantee tiself prevents each State trom trans- crnting what may properly be called part of tae repud Ticam institutions. Toe stute legtslatares cannot pass despotic Yawr. Counsel—it would be as difficult question to find out what should be regaried as ces,otic laws, beeause it is hele by evem the Uvited States courts that in tne con- tion atitu the United States no power applies to the ‘United Stator, un tes it is expressly grant-d, and that rt ixsTy ach State hes all the reserved rights ‘oasibly be ¢xercised ‘acrg—They bave no: the r'ght to pasa des- potic Inve. Counael—Well, {do not say they bave, because the Sonstitution cuaranters thet this aball be « republican overnx (nt; but where the conrttution is rilsot, thon say each stave bas thing now probibied ty the U; States. The constitutoa of ‘the State cf New Yort, of 1846, says that auch parts of the common law and of the’ statctes im force in the colonial time as are not affected by the conatatution, shail te the law, su ject to the nght of the Legulature to alter, amend, rep*si snd vary the same Judge Brown—That merely referrei to cer’ain legis: Jative rules whieh ex:stet at that tims. It cocs not touch the queston of constitutional power oa the part of the Legiulature j Counsel supposed that it did, meat. He ot ge that ibe and froaze wich argu: people of the Stats of aurrencered thew rights to ‘as the people of the States, although, if there be no constitat:onal objection tos siatute, itis wih is aeadsolute and uncontrolia- die wing from the sovereign power in any other govervment. * * * Bac where there is « writ- ten copstitation, an sci of the Legisiature may be void Qs aga.net the coomitation.”’ Kent lays down the rale ‘that the legislative powrr 6 just as omotporent as the parliament of Great Britain t+, except wnere it is bound €4 by the const:tution® Counsel proceeded to argue that wherever legislative acta do not interfere with the coa- atrtution or with any of the inalienable rights of man ‘they stould be sustained, and he quoted 20 Weodell 381, lst Hul 329, 16 Peter 420. ast fn quertion ‘was poth’ng more por less than 8 police law, as tm the -cane seported in 6 Howard, the ji declared the law im that case to be, Judge Stropg—The act upos in that case was simply 0 rerulstion and J peste age prohibition. Counsel—in tais case there as not an entire probibi- Stromg—Has the court of the United States ever bm act prohibiting saley Bo; the queation was never before thom eu- cept 0 far as this: {othe State of Roode Islsed an act peseed similar to our act in 1445, that every town might for itseli cecide whether there should be any licenses grepted. In tho town of Cumberlaniit was ‘voted thet there should be no license. A person nm that town bovgtt the liquor atter the act was passed, which ‘was the occasion of the suit. That case came up sad it was Cecided that that law was constitutional so far as United States was coscerned. ee ES Lid the aot probibit the sale of liquors entirely, or did it only refer to license ? ‘Counsel. ut in the town I—It regulated it by license, in ques Lary there should b tion be w virtual bivition. Im New pebire the act rohibited the sho entirely, except it was sold la quan- eight gallons, aud that was 4 to Cot ng Tieetor, #0 long sa the Legislature -does not viciate any of the inalienable rights of man or ‘any of the provisions of the conatitution, 7 haves right to pera euch @ Jaw ae the present, and the only may cf gettirg rid of this law ia by s Legicla- ture to repesi it. Now, in what reapecs Coes this law vio- Tate & Finite privilege of the copatitation, besives the one which we eve jast discussed, that the mere fact of A probibitess lxw violates some of the rights of man’ ‘They tay tbat 1 is illegal to deprives persom of & trial ‘by jury in avy manner, also thet it ia illegal to compel him to bejiried by six imetead of by twelve men Thep ey ‘that that is unconstitutional, on the ground that # per- sop bas # right to that tial by commos law. Judge Stroog- Loos it apper here that this man was tried by e'x jeroes? Counsel—‘iue return states that fect that be was Arned by six jurors, There is no question about that. Jadge Strowg—We Jorn only Loox ot what ia stated on retu: tne seooel_-There is no fdoubs about it. We aay that the bn hada eae = ae died bs ener imal lowmg the prisouer, after “pot ity.”” te come is next day, withdraw Lyn nal trial ty jory. _Jndge tee An" you pretend that on that account the by wy, was void? Counsel We that after the trial was commensnd- -be@ ould Bot ‘vail bimeeld Of the privilege. Judge Strong—Then you say the Court erred? oe Judge Strong—Then how do you sustain the proceed- phy ered the jury afd having the jury pass he ‘sel—I 1 oppore, if the Judge committed an error, this court will sed the case back to have it rly b= ernedememamberaag are void. 333 iielaiele Ritter infamous crime? and if this is could ot be deprived of bis Som then be a 2 perfect rig trod in no other way than on presentment jury, and that be must ‘coust eball come objectionable, { svovld uncerteke to say that this al, It Fak one Sak ad port oa sui ebalpis coos ment cre cer mi ve & parson this right have bim held to bail ~But we tay chante Bot meceasary. Weare Willing to meet the queetion, and we do meet it on the broad ground that thisie not am infamous crime, and that there is nothing conta ned im the constitation which requires officers to hola 9 person to ball instead of proceeding to trial, We sey that ao infamow crime has a C1atinct legal siguificetion. In the secoad rev.sed statutes, page 702, it 1s ceclsred that woerever the terra ipfemous crime is used in any statute, it enall be coa- #trued as including every ollence panishable with death or by impriscnment iv the Stete prison, and no other. [tis argued by the other side that tmasmuch es e furteer Provivion ot ‘the law ceclares persons convicted it from acting a jusore iv cases arising under it, thal therefere it is t0 be regarded ae am infamous crime. But the ans@er to that objection ts, be ta aot neld to apswer in avy senea within the constitation, por 1s be held for acrime. much less amiafamoun crime There {sno puvisbment in it; he is werely side because the act says he is not competes «juror. It is Dothing more thea a mere odjection to his compe- tevey ‘Ibere was acase cecided im 10 Weadeli, 449, which goes to maintain this posicion. This per irqualificd i¢ rot reld im any sense to soswor for any criminel mater, and theresore it is s m-re mode of deciéing who shall be « competent juror. Coanse: woud ro lopger occupy the tme of the Court or eacrosca. open the aigoments of pis colesgne. He would say, in covclusiop, tbat be supposed thet this law 18 not un- constitutional 1 any sense wpatever, Ju gen sey toat the State Legiclature has a rigot to pace # prohinitory jaw, upless it undertates to proaioit the aale >! import- 0 liquors They say'thst our warravt nexd not epecity that the Mjuors sre pot imported. He referred to the 2ud revised atutates 107, Payne v. Beraes, 5 Baroear 468, Is ix there brld that if a warravt is according to the law it ia all that can be loowed We have stated erongh, snd even wo wuch sud were not bound to stute that tuia liquor was not 1mported. The decision in Sth Howard go. the whole ‘ength of sustaining a ey law, s0a6 it does aot extend to im ported gnors, Mr. Thompron next addressed the Court on behalf of the people. He reviewed the miaary proceediogs in the case He supposed there were oaly two questions presented for the consideration of the Court: whetner ‘the proceedings were scooraing to law, and whether the Jaw was constitutional and valli? The couosel for tne accused intenges, he understood, to make a third qa tien, wh: 5 provisions ot the thought, for a Coort to provounce t Legislature o° the State uncovetitutionsl and nall this Court make such a decision, it will throw open the floodgates of this traflic wide and uarestricted for the nexttix months. It ix not for connse nor for the Court to say whether they would have advised toe pasage of this jaw. ‘The simple question for the Court ia, whether the aw violates any provieon of the coostitution. He held, in the first place, tnat sli the procesdiogs in this Case were w strict accordance wits ths Jaw, aad proceed. 08 to argue the regularity of these procesdingy He cited authori'ies to show that it was not eigerg | iu the war- fo make a distinct averment that tne liquors com dot were mot importec, also to show that tue nty Judge has jurisdiction, ana that the trial had be- fore him was le,a). He is elected to preside at Court ot Special : essions, anc perform such oteer duties as shall be required of bim by law. Judge Brown~You do not claim that the Legislature has a right to create pew Courts! Counrel—No, sir, But I claim that the Legislature Dasa Fg to say that cerrain offences saul! be tred before the Special Session: which the Couaty gadis preside Counsel proceeded to ciacuns the question—is its veltd law. apd cove the act create an offence? It is an offence to sell or give away liquor, it is an offence to beep it for nsle or to be given away; and it ie an offence to keop it deyosited. Counsel commented upon the opinion of the Counse! of the Corporation of New York, aS exempting imported quors. He should like to be ported ous the law or the treaty of the United States which exempted foreign liquors from the provisions of a proribitory act. Judge Strong—The law of the United States authorizes the sole of imported branuy. Countel—I think the Court will hardly be abie to turn to any euch law Judge Strong—I am only speaking of tue decision of 00 uot eay whother it 18 the United States Courts. right or wrong. I do not think that, by tue exception this law, the peoalty exists where the { quoris iasported. Counsel—I suppore that the proper exposition of the provico is this, that those who drew the act had not definitely ascertaiced whether there was nay law or treaty authorizing foreign liquor to be soli and that they therefore mace the general exception. The case ia the &:b Howard allows only imported liquots to be sold in the original packsges Judge Strong—Why did not this act eay 0? Course] —it has aid so in eflect, if not m terms. Judge Stiong.—The proviso, thea, is at variance with the act. Couns: ‘Then I refer your Honor to Blackstone's remark, ‘ that when « provmo ia at variance itn the not, the proviso pull and void.’ I also refer to Kent's Commentar’ elt; but the difliculty is, the e here, Tt is 10 vies that read. Counsel — You sre to take all this act togetner. The 2ith section speaks explicitly of the sale of importea liquors in the original package. We are to tase for granted that the Legislature combined all the abdilit and intelligence cf the people of the State, (iaughter, and they were not to be presumed to be msaing fools of themelves. Judge Strovg; understood thet the section waa ori- ginolly drawn 0 as to make the act apply ia terms to the imported Hqacrs. It was cravp by a lawyer ot eminence, but it was afterwards al! to the way in whieh it etende now. the next question he would discuss was, is this a valid law? He would say tbat the Legislature had all power to pans laws not prohibited by the Scate or the federal covati' ution, Judge Stromg—You do not mean to say that they ‘Dave ® right to prevent the growing of Iadian corn Koscon it might be manufactured into whiskey? Laugbter, CSoeaet veaciiest bis argument, that the Legislature had « right to pass this law. It would require some of ‘the ‘ berd cider’ from the rural districts to ins; the: judieiery to ixquire, net only into the constitationality of the law, but sl:o to go behind the scenes aad inquire into the motives of the Legirature. (Laughter. ) Judge Strong suggested thet where legisistive au- thoriites Ceslared that certsin fraits or meats were beulthy, and that their sale should be limited, they bad Pima do so, but they had not a right to prohibit it altogether. Counsel inquired whether, if the Common Council were corvinced of the fact that pineapples were colete- rious to the health ef the community, they had not « right to probibtt their sale? juége Brown—Meats or fruitsin process of decay are Duisapers, but bottles of good champagae or brandy are not Goughver); they may stand im yoar house for yesre and do no hazm, if you let them alone. (Renewed r. rr Count 2 Neither will rotten fruite or meats, if you let them alone. Judge Strong—Ob, yes; they would affest the atmo- sphere (Laughter, Counsel—It bas been the poligy of the Legislature of ae State for many years past to prohibit the use of jqacrs. Jucge Etreog—The abuse of it, not the uso of it; they bave never before interfered with the use. I there ina \ mee Cifference between the 1 <5 e believe ulation of a end the absclute probibition of it. The power of islature, I delleva, extends to regulating this bot when they attempt the total suppression of the sale of apy artice which is used {or beverage or food, outstrip their powers. Cou When you look at this act it does not amount to tote! probibition. There are to be persons licensed to sell st, and men cap get it if they wish. Judge Stropg—I bave coubts of thet. 4 only restrained and limited, but not robibited The Supreme Court of tne United States have at allevents decided the question in the New Hempetire case, where Judge Taney said that thers wan Lo restriction in the United States to prevent States from probibiting the sale of liquore, He (Coansel) did and destruction of the srti- same principle as the de- sirno20n of doge tor the sake of public security is authorized. 4 Jodge Strong—That question does nct come up. Covel It may be ssid that pert of the punwhment in the cestruction of the hquor. What difference is there io prin: iple that a man, having deon tried and convicted of ap offence, must submit to a fine of $100, or have the property by whish the offence was committed confiscated to that sroust? Judge Strong—But suppose there is no trial, could not the lijyuor ‘troyed? But there is no necessity 0 diecoss the queation Counsel ecquieeced. He went on to argue that the principle of restriction and probibition is really the sowe, Under the leenre system the rule was prohibi- tiop, the exoeprion was the license, J Brown— There are certain elementary princi- bich abould be discussed in consection with this bin aes eee pig mm eyes Ce control over it. If you say & msn shall no! = whet bade iY have to him? Now, progerty wi or you, or any other ¢ consists in our ability to sell it, the Legislature have , that «destruction of the rights of property? It is with teat quation you have to deal. Fekprese uo opinion Upon it, ‘Counsel sup) interests biie, slatare bas aright do to. It he eenty og" the fagialature would have power to say, if we find dog out without a mune we will contscate him Judge Brown— Do there statutes in respect to dogs ex- tend to the Cogs hept in a man’s dwelling house? Counse! thought that cid not change the print. said, bed suggested that the provuione probibit proviston im thie te wes ot iavaligated 0m account of ot! tional provisions. “The Eerst aid not require any argument os that point. Ce would then to discuss the wet ee Jeaga lecys oo 0 toe eveiorttr Sete a ge. One of the exceptions is, that bern imported, Weil, tha: tsa matter it. Anotber ts, thet it plo leg ‘wes vot imported Counsel hoe peanet to the question of the prisoper’s right to be tried om presesitment and before » jury, inasm ach ar the offence was an infamous one. for, it convicted, the prisoner would be disqualified ty act ef @ juror, Jucge Strong did not see bow this point of infamy srore at all, @ deprivation of his right to act as juror ‘was 1 ot direct punisbmeat, but an indirect conseq ue whisb merely attaches to the man’s conviction That copeequence might be heresfter declared to be illegal. Counsel expiayned that he discussed this pet toshow ‘hat the cr:me is stigmatized as an ‘ as’? one; and assuch that tae Special Sessions could have no vris:iction. Judge Strovg thought it was atretching the matter too far. This prevention of activg as juror in cases under the act was no imputation on hie ol ter. Counsel giarced at al) the arguments proand con; and B conclusion be thought that, as this act piled up pua- sbment upon punishmest, acd was 1a te highest de- Pr . it ebould be construed in the strictest sence, Bod that the prosecutor should ‘be held to the strictont proof, The argument here clores; and the Court reserved its decision. ‘The Last Broadside into the Liquor Law— Deciston in toe Case of Smith & Dowd. COURT OF SPECIAL SESSIONS. DECIBION OF RECORDER SMITH. At an early hour yesterday morning the Court room of the Specie] Sessions wae crowded ‘to excess by an audtence interested im hearing the decision of Recorder Smith fe the Jiquor trials of Dowd & Smith The Car- son League was represented by rome of its most zealous advocates, and the liquor side was represented by dealers in the articie, amd consumers of it, foo, It was a motiey crowd, taken ail in all. Toere were some ladies present, about half a dozen, who alo appeared to have some interest in the decision, At 9 o’clock the Court was opened and the Recorder took his seat. The officer rapped for order, and 8 profound silence prevailing, the Recorder read the following desiaion:— On the 10th day of July inst Mary Martin made an afficavit hefore volice Justice Wood, im which sue al- leged that on the 8tb day of July aforesaid, iatoxi- cating liquor to wit, branoy, was sold to ner by the de- fendant, Thomas Dowd, in violation of the provisions of the act ent tied ‘An act for the suppression of iatem- perence, pauperism anv crime, Aprit 9, 1865,” abd that she paid for said liquor and orack the same oa the premises of the defendant. Upon this affidavit Jas- tice Wood tse ‘rrent for the defendant; the de- tukem before the justice, and the charge at tac Special Sus- this Cour tbe defensaat waived 'y, and interpoaed a ples of not guilty the trial the defendant admitted that be told brandy to the witness, Martin, at tha time apect fied by her in her affitavit, out coupled the admission with the averment that the brandy suld waa imported. Notwithatendipg the acmission of the defendant, the witnees, Marém, was aworn on behalf of the people, and confirmed the facts as to the sale of the Nquer_by the ceftendant to tho witness, a4 stated in the affidavit upon which the warrant was issued, and in reply to 8 question by the defendant’s counsel, the stated thes she did not know whether the brandy was imported liquor. 1 regret that no counsel wes present to represen’ the prosecution, upon a ques- tion of 80 much interest us the one involved in this care. it would have been gratifying to me to have the question on both sides fully presented and discus! ed, Previous to the parange of act adove referred to, ti power to grant licenses to sel! liquor, &c., in the city of New Yors, was vested in the Mayor and Common Connell. The same act that conferred upon them tae rant licenses also imposed specific penatties tion of the excise Jaw—penaities that coald ‘be enforced by civil remeay, and siso fine and impris- opment, to be enforced by « criminel prosecation as,Cor & misdemeanor The statutes of this Stats imposed prralties for selling liquor witeout such s licaase as ‘was provided in the then existing laws. The licenses then authorized are expreesly abolishet by the 25th tection of the act of April 9, 1855; and no licenses can be granted exceptthe license m-+ntioned in the second section of that act J know it bas been contended that the penslties under the statutes existing before the gct of April are still in force, and are not effect- ed by the last mentioned act. That the penalty im. posed there was for selling liquor witbout « license, and that now, when no license can be obtained to sell, the old atatute 1s sti)! operative. I do not eo under- stad the law. The pevaity under the old stabate was a speciGe penalty, imposed for ue ling without the sp-cific license mentioned in that statute, The statute impos- ing the penalty is repealed by the 24th section of the act of Apri. The pepaity expires with the law thet created ‘must seek in the new leq, in the act of april, a only. for the license and for the penalty. The 24th pectson of that act i broad and sweeping in its termr: It repeals “all the acts and parts of acts, and all cbartera enc purts of charters’ inconsistent with the act. ‘Ibe Legislature in framing tbat section clearly in- tenced to effect auch repesl, ani ‘or the pespese & pe. venting actions then in progress from being @! oy it, enacted that no euit commenced or indictmant found before the act took effect, should in any maa- sure te affected thereby. There would have been Bo necessity for the last paragraph of the 20th nec: tion it the Legislature intended that the old pensl- tien for welling liquor witbout license should remsia operative. The question then before tbe Coart i bo, the t it, @ defendant violated any of the provisions t of the Oth of April, and if so, what p-nalty has be incurred? The firet section of the ast reads as =" Intoxleating jiquor (except provided) aball not be soia or kept ter sale, or with in- tent to be sold by any person for himsel or any other perron, 1m any pl wbatsorver, nor sball it be given cept aa diene by physicians pursuing the of medicit a bur or for sacramental purposes) nor be k tb the to be given away yo opy place whatever, except dwellixg house m which, or sp apy part of which, no tavern, ators, gro cery, abop, boarding or victualling house, or a room for gombling, cencing, or otter public amusomen} or re creation of any kind, is kept; nor shall it be kept or de posited in any place whateovver, except in such dwell boure as soqve described, or in @ cburch or place worship for sacramental purposes, or in s plac where either some chemical, mechanical, or medica) act re- quiring the use of ous liquor is carried on as a regular branch of bu: , oF while in actual transpor- tation from ose place to another, or store) in a ware- house, pricr to ite reaching the place of destination. Ths section atali not apply to liquor the right to sell which in this State is given by apy law or the Upited States,” Had this section a the word * destination,” the question ited by the counrel for the defendant could not have arisen But it ispow contended by the Counsel, that although his chent bae sold liquor without license, he has not vio- apy of the provisions of the act of A or of any iting atatute. That the latter clause of the first section in terms excepts imported ae from the frvm the operation of tae act. That the right to im- port liquor into this ttate under the law and under trea- tien of ibe United States is conceded. And that the right to sell 1s incident to the right to import. The fact, 1 think, cannot be disputed, that this law was not pass: edas framed. That it was not the offspring of ope mind. but on the contrary, that section after sec- tion was passed by different fash that it was altered ond remodelled to meet 41! it views, and to silence yo ageinst certain sections, and thet the neceasit; for there frequent altera' additions and amend- mente, arose from the fact, that without them tne bill ‘would never have become a law. Whatever may have been the intention of the framer or fra mera of the latter clause of the first acc\ion. we can now only derive from the lan- e embodie® in it, The judicial construction must be precicate3s, upou that apd that alone, Whatever ths intention of the Leg migot have been, ie a mat- ter of po moment in tue considerat on of penal statutes, unless that intent js clearly and distinctly expressed, In otber words if the disputed pornt is so ambiguous as to admit of two copstructions, that construction, most faw rable te the party to be affected by it, is the con- @rnuction that must preva:l. ‘Tbe laws which restrain, auch 98 those that fcrbid anything that is not in itself unlawful, or which derogate in apy other manner fron fhe genera) law; the laws which inflict puni-hments for crimes anc offences or penaltes im civil matters; those ‘which prescribe formalities; the laws whish ap- prar 10 have any berdebip in them; those which permit Olewwheriting ond others, the lke are to be interpreted in such s menner as not to be applied beyond what clearly expressec im the law, to amy consequences to which the lewe do rotextend. And, on the contrary, we ovgbt to give to such laws all ment of equi and humanity that they bo cope Ia vot this act one to which thier ot 5 yg It is am sct in derogation of th ee in ctive whirb cannot be Violated emy of ite palty incurred? were ony lew ity of the United States which gives the rgbt to juor im thie State? fhe ofirmetive of whis ‘too well settled to be we. rior contested. Lig ‘the the rgbt is confined the original packages, sad Tat when the the bands of the importer i fis 5 SB &é weed was perly for the gorpere ju¢stion relating to the sale of heretofore emberrassed the law that the latter claure of the first for the ol oceans Senet law waa nah tn. con fict with tbe decisions in United States Courts upon that question. Effest must be to ever; joa of esta ste Unless it was intended by the Lagielatare to pap my rena phar Se ‘ having os! on the Jatter clause of the first section, or by a toh 4 aa oa is in- mi Stage iapeie gua ry iquor origunsl packages in the hands of the importer, {a any case where the rightto import such liquor is given by any Jaw or y of the Uni'ed States ;”” thea stat. ute would bave been clear an { free from this embarrass: ment It has been claimet thatthe act should be con- atrved ap if it readas last stated Icannot so coa- atrue it. Judicis) officers do not possess legislative pow- ers, apd where liberty, tation aad property are at atabe. courts heve no right to assume doubtfal onss It um therefore resolved into this: The section exempts im) Jiquor, that (deed liquor the right to sell whicb is given, the right to import implies ths rigbt to sell, and the exemption veg absolute it is te- ken out of the restriction imposed upon other liqaor, altbough the twenty second rection of the act d 28, thatthe act sballnot be construed so as to prevent the femporta? of forsien liquor from keeping or selling the seme in the origival packeges to any persoas, author. ised by the act to sell hquor. This refers to the impor- ted specifically. The insertion of thatsection was vholly unnecessary. The right existed without State lestslative permissicn, The atter clause of the firet section is eneral in its operation, and infers, as I have fore stated, to the iiqaor itself im its broad- est and wost general terms. At common law, as I before bave bad occasioa to ramark, the traffic ia Kiquor is free It is by statutory reguls'fons that it is restrained. The statutory regulations that existed in this State up to the age of the act of April last are al repealed, exce, t imposing s penalty for the sale of liquor on Sunday, and toe act of April is substituted. In that act, imported liquor, as I understand it, is ex- empt from its operation by express enactment, and the on'y license that is to be required is the license un the eecond section, which, in my opiaton, applies toxicating Hquor. other which 18 tmpoi T sap: pore, by way of illustration, if the last clause of the frat nection read, ‘‘this section shall not appty to ‘cider,’ ’’ inevead of to ‘liquor,’ would it be cont led that sny penalty would attsch to the sale of cider with- cut Hoerse? e word liquor implying, as it does, context, imported liquor, is equally exempt as cider wou'd bave been, bad the word ciaer been iaserted in the plece of liquor. The 228 section does not in any wey tend to suthorize a different construction. Iv is werely declaratory of an existing right—as rgbt which mo State legislation could inierfere with, It was probably toserted before the last clause of the first section was added, and is at most oaly deciara- tory of s then existing right under the law of the United States regulating commerce J have ex! ls ques- tion with great knowing the deep interent felt by the community im the qu mn at issue. I bave con- Bulted the authorities bearing upon the question in- volved; and applying the principles of the Jaw, as to the cox struction of penal statutes to the act under conside- ration, I bave come to the following conclusion : that it is no offence to sell imported liquor withouc ing ob- teined the lcense mentioned in ths act of April. As thie care is pressnted, it is unnecessary to pars upon other questions arising under the act, a8 they are not necessarily involved in the merita of the case under con- sideration. ‘The defendant is discharged. Tn the other case tried before me, the People on com- plaint of denry Hill va Charles EK. Smith, the 4 prin- oiples are involved, snd the facts are substantially the seme. TheCefendant in that care is also eed, ba The statute in these cases allows costs to the prevailing party. Arrests from Intoxication Yesterday. ‘The number of arrests for intoxication increased nearly fifty per cent yesterday, which probably arose from the joy manifested by liquor dealers, aud those in the habit of patronising their saloms, at the decision made by Recorder Smith, giving a)l parties the right to soll imported liquors. Thirty-three persons were brought efore the magistrates in rather an unsteady condition. th 7. 8 to prison with the exception of three Juchy chaps, who happened to be possesssd ount of wash necessary (or ther release. The ere crammed iato # hot prison for ten long ¢1 eestern side of the city, as will be seen from the following table, is becoming quite intemperate — Magistrate. No. Committed. First District Court ......Justice Bogart Second District Court... -Juatice Brennan ‘Third Listriet Court.. Total number of cases.... Liquor Prosecutions—The Alitance Again in the Field. LETTER TO MESSBS. COLEMAN & STBTSON. Naw Yors, July 11, 1855. ‘Meesrs. Coreman & Sratson—Gents: According to our beat information and belief, the sale of liquor continues at the Astor House just as before the Prohivitory law went into effect. We are willing however, to aseume het you honestly believe such sale of liquor is not a violation of law; that you hold, with miny others, that the Prohibitory law is uncosstitutional and void, or that wported liquors are exempted from its operations. In be name, therefore, of the New York ity Temperance Alliance, I respectfully invite you to mest us im ths Supreme Court, to comtest the above points of lai or any others your coussel m: hy whole subject. We wish an smicable discussion, anda judicial decision of every poiot. If we enter compleint for » e‘ngle violatien, will you acknowledge the sale of a bottie of wine, « glass of brandy, or spy other intoxicating liquor? And will you wees BS waive e jury trial, and so direct your couvsel as to fevor ‘the ar — proseptavion of the cnse to the 3u- ‘oust We mako this offer in good faith, and with « high re- gard for your persons] obaracter #nd public standiag. ‘Ap scoeptance at your earlirst convenience wiil insure the immediate adoption of measures to bring the matter before the court without delay. In bebalf of the New Yors City lemperance Alliance, C. J. WARREN, Corres’ Secretary, MESSRS. COLEMAN AND STBTEON’S KEPLY. Aston Hovsz, New York, July 11, 1855. Mx. C. J. Wanran—BSir—In reply to your letter of this cate, we have only to say that we ars actiny un- der the opinion of eminent jurists, who believe the law which authorises the seizure and destruction of our pro- perty to be uncenatiturional. Confiding in the wisdom and justice of our judicial tribunals. ond prep+red as law abiving citizens wo con- form vo their decision of thta question, we do not fesi cajled upon to depert from the course we adopted when lying to your former itiun, Very reapectf A oa POPCOLEMAN © STECSON, The Law in Brooklyn. BEIZUBE OF LIQUOR. Yesterday, officer Matthews, of the Msyor’s office, made « seizure of several bottles of spiritous liquors at the salcon of Thomas Toynbee, Montague place, on a search and seizure warrant, issued by Judge Calver, of the City Court, It is understood by all the parties in- terested that no technical objections will be raised, but that the care will be brought before the General Term of the Supreme Court, now in session, for decisions as tothe conatitutionality of the prohibitory liquor law. The cefendant was brought before Jastice Smith, of the Court of Special Sessiers, and held to bail to rr this Creceente) morning to answer. The case will be carried to the Supreme Court ss soom as practicable, and a speedy decision may therefore be expocted. VETO OF A RESOLUTION OF INFORMATION BY THE MAYOR. At a regular meeting of the Brooklyn Common Coun- cilon Mondsy week it, a resvinton was offered by Aléerman Pel! and passed, cirecting the Counsellor of the city to give his opinfon. ‘As to the constita- tionslisty of the act for the prevention of intemperaace, re eee and crime. 2d. Whether the city will be ieble for mee ged by reason of the acte of its executive officers, abou'd they undertake to enforce the seme according to ita provisions, if atterwaros the law should be declared uncorstitutional. At the lae® meeting of the Board, Mayor Hall sent in the rerclution without his. signature, and gave his reasons as followa:— In the mont May Jast, I procured an opiaion from the ‘Counrellor of Te city, which was pubdiished, in whieh he states that no new power, by ity. A ita are now in 8 to take Se nnee ned “decision of the preme Court vpen all the questions WF ye | in the resolution, 4&1 qui ns will probably be argued before the Court amd « decision ti bot cuseg De eemnt week Ido not deem it nesessary or proger, ai preme' cecolngs of the eon the charter ‘of the c pa) pot pore, by cal tnder tbe set Tam ve that the pecessory Seite mere premete reas tert Oe WE Sree laid over ‘upder the Tale, page InTOxtwaTION. Yesterday morsing’s poliee returns show the tote; sumber of arrests for the preceeding twenty four hours boda og hagd Mateg: Soyo pee ee cts et sae te Lali tor lam Gage. “2 Ghe Liquer Question in Willlamsbarg. The eave of Thomas Berry and Wiliam Galabard, charged with selling liquor, was called up defore Justice Jocobs, yesterday; but the Justice not being ready to repder his decision #0 to his authority te act in crimtne) motters, the case wee agare edjourcec til Monday next. ‘Wiliiem Oofiee, George Baber apd Frovrict Rosman, wore brought before Justice Jecons, yorterdey, am the ghorge of beieg drunk, They were Gned $10 each, Our Washington Correspondence. Wanameton, July 16, 1855. The Court of Claims Again—:portant Decisions An- nounced To-day-—Common Sense Views of the Court Mr. Blair's Reason for Moving to Strike Out Surplus- age— Future Action of the Court Intimated—Mr. Rock- wells Suggestion—An Important Question Mooted—~ Question asto the House Calendar, de. ‘The Court of Claims met to-day pursuant to adjours- ment, but not until some miwutes after the regular hour. ‘The delay was occasioned by the reception of » commu- nication from the Secretary of the Interior, announcing the decision of the Attorney General, on the question of power of the Court over the public records, and stating that the officer did not desire tobe heard before the Court. Immediately after opening, the presiding Judge ‘announced the opinions of the Court om some of the va- rious points raised on Saturday leet. Samuel C. Reld, Jr., Eaq ,of your city, had addressed the Court in reference to the motion made by the solicl- tor to strike out letters and documents contained and referred to ip petitions as surplusege. Mr. Reid con- tended it was necessary to allude to and to mike certain documents a part of a petition, im order to make out the Gase properly before the Court, amd to sustain tho cause of action; and it was so held by the Court. The motion of -the solisitor was therefore overruled, Judge Gilobrist remarking that euch sur- lusege could co mo harm to soy One, as the claimaat faa to for his own: ting; 00 injury could result to the Paites States . Blair resisted this position of the Court, and thought “the surplusaze should be cken out in order to protect the government from the expense of re-prioting, in the report of the Court to Congress, any unnecessary or irrelevsnt matter.” This seemed particula:ly animous, after artitr: fore. ing upon the claimant the expebee of ete nis own cea tae report of ‘ion, The law, however, only requi Joe Court end not tne record to be Priated when sent dp to Cougrens, In metter of calls upon the executive departments for public papers on file, the Court adopted s rule to ‘this effect:—"‘When @ party desires to use tne records of one or more of the dep: ts im the preparation of bis petition he must first file a written petition ander cate, stating Die case as fully as be can, and setting forth what = pspers desires to obtai from the depsrtments. lf, upom an, examo tion of this written petition the Court coasider the pepers neorsssry to the ls of justice, call will be mace for them through the Clere of tl Court, After which the claimant shall amend his peti- tion, it sworm to and printed, and then substituted for the written one on fil,” In all cases where pro- per petitions bave been filed, orders will be granted for these recorda, if deemed necessary by the Uours. ‘The Court had a discretion in the macver, but it w sound, sensible, judicia) discretion which had been \« them. ‘ Mr. Rockwell the propriety of a rule, pro” viding that either judge separately could, during the re cess of the Court, examine written pet‘tioas and grant orcers for public records. Such # rave would prove emnently urvefal and convenient. Justice Gilchrist toon occesion to allude to the char- a:ter of the previous proceesings of the Court—of tne Gesuitory character of debate &c., and noped that it ‘would not be pointed to hereafter ag @ precedent Here- after, be sard, the docket would be called regalarly sad preliminary questions ¢ieposed of im their order; aad while they desired proceedings befere them to be intelli- gible, t intended to proceed with as much speed and as little wicality as possible, This annouacement was received with evident e.tis/action by the bar. ‘A very important question was m by the solict- tor, whether judgment of the Supreme or any other court would be conclusive of the facets upoa ich toe sate was rendered, or whether this Court would go be- bind the judgment and ine the original evidences aupporting the claim, powtis ove I umderstand, upon which turne several of the largest claims before the Court, and it was theretore held up for farther oconside- ration and discussion. . It is understood that the Court will consider no case referred to it by Congress unless the claimant present it with a printed potition under the rules. ‘bs re-olution of reference to the Court only fpr jarisdiction. The claimant must present his formal petition and have dosketed, before his case will be considered before the Court, Claimants shonld note this fact. gE Quarantine Regulations of Louisiana. Whe-eas, the act of the Legislature of this State, ap- proved on the 12th of March 1856, entitled ‘an act to establish quarantize for the protestion of the State,”’ imposes the cuty on the Governor to issue his procla- mation, upon the advice of the Board of Health, deeler. fog place or pieces where there shall be reason to belie: pestilential, conteg'ous, or infectious ase be an ipfectec piace, and stating the number f quarantine to be performed by the vessels, parrengers, officers, and crews coming from such place or places— 1 do, therefore, in virtue and pursuance of the provi, sions of the act aforesaid, issue this my proclamation- upon the advice of the Board of Health, and Ihereby de clare that there is reason to believe pestilential, contegions, or infections disrases exist in the places hereinafter pemed, and I any. declare ssid place hereinafter named and enumerated 10 be in‘ectea places, and that all vesse)s, together with their officers, crews, apd passengers arriv.og from raid places, or having touched or stopped at any one of them, ball desabject toe querentine of ten days The places which are hereby declared iafeative, sforesaid. are the following, viz :—Havana, Matenzt Trinidad, Cardenas apd St. 0, all oo the inland of Cuba: Kingston, Port Royal and Mon! Bay, on the island of Jamaica: Jacmel and Port athe inland of St. Domingo; the islands of St. Thomas, War- tinique and Gaudaloupe; Campeachy, in Yucstan; Be- lize, ta Honduras, Vera Cruz, alverado, Tampico and Tuepan, in Mexico Saa Juan de Nicaragua, Chi Aspinwall and Porto Bello, in Central Amerie cabo in Vevezurla; Lagusyre, Island of Trintiad; rs Ja ee ha diel Cayenne, in South America; and 1 olen Given upcer wy band and the seal of the State, at the city of Raton Rouge, this Oth day of July, A.D, 1885, apd in the year of the Indepemdence of the United States of America the cightieth. P. O HERBERI, Governor of Louisiana, By the Governor. Anprew 8 Herron, Secretary of State. Theatres and Exhibitions. Broapway Taratre —Mr. and Mes. Barney Willi sre to appear this eventpg ia three of ther most lar p'eces, being the last ni; gapement. The drama of ‘ Is eommence the amurements. 7 0 popu ar f the comodietts of “Yan- 1. Those wno haven’t excellent opporta- pity afforded them this Bowxay Tuxatrs.— Mr. W. R, Goodall is to take bis benedt this evening. The pisces selected are “ The Drupkerd,” “Tom apd Jerry.” and Widow's Victim,” tp all of which Mr, Goodall wil! appear. supported by the ep‘ ire strength of the company. Such an attractive bill cant ot fail sn ensuring a fall attes lance. Nrnr0’s GaRDaN.—The new comic opera entitled A a eae ”? into be repeated again to-nigh* by the nd Foglish Oprra Troupe. in which Misa ill introduce her celevrated of “Tae Sky- lerk.”’ Mr. Burton and bis com will appear in the “Serious Femily” and “ fhe ’? om Tharsday pany continue fall ses. To-night they are to repeat the new piece of * Dark Deeds,” together with the usual negro per- formances Pxeuax’s Concert Rooms.—The Alleghantens will give another of their pleasing concerts this evenivg Mr. ann Mus. ALLEN.—Thoge very talented artists are - tig after fulfilling « successtul engagement in the vest, ‘Tax Beraznt oy J M. Coox will come off on Wednes- day next, atthe Bowery theatre. Hoe is » very deser- ving actor, and me its a bumper. MARITIME INTELLIGENCE, a ¥ and letters intended for the Naw ¥« atta sould be vealed" Weagteners es Post of New Yorn, Jay 17, 1855, CLEARED, scent City, MoGowan, Havana and New Or- ert b Pratt, Liverpool— 1 TNordenbelet, yehe By cht Ship Jobs Hancock, Ford, 8: Joba, NB—Post, Smith Baik Copernicus (Ham), Meyer, Hamburg—W H Sohmidt bark, Nord Amorion (Ham), Peters, Hamburg—Book & ot K Gatriclie (B16); Collora, Bristol, Eng—Chamberlia & Bric Landscape (Br), Richards, Cork~J B Gager & Co. Brig Rederts, Malaga—J B Geger 2 Co. Lng Lucy’ Aus, Bryant, Philsdelphie—Yates & Porter. tebe W R Borabam, Crowell, Porto Piatto—Wadleigh & ney. ‘Sobr Gt! Biss Maxwell. Bleuthera—Jos Eneas, i Br), Innis, Halifax—Bolly & Smithay. ae aan Raver, ity FolutVoan Brest he. & Ce tye Maroh Nortel Leeman Behe Chate, Jones, Morrill. ARRIVE, Bteamsbip Lyk % mdse to , & Co, 74 PM, Bic Beiereer ames nea aes seme lasnes. 00 0 8 Bermeds,® days, with fetatece, forth Jegzia, NS, 10 dsye, with in, NB, 15 de7%, with tem Midget, Wi i Ron md ‘ashington, NC, 5 days, to at hs y 3, from Penang, whiny Deane oll came ber too near wey called the North do; 3, Woodruff Bims, Boston Strout, Btrowt, ¢o; Elizeveth, sr benaartvaais, iain; Undine, nell, Howes, do, Roach, Baleman, f ‘$8 000 fit te Wal- Suir Vecunticoox (before reported). Dolen, of New York, hi he ob it at a wi euineetn, Phish area ia ofa Ma the afternoon of ln, The hatches were immedia' A Sure was reported by steamer Gordon, at 1th, to have gone rently cotten loade for Key West. 7 Sur Li m— The tens wrecked on Pratas Shoal, hav Prices. ‘Whaiemen. Cid at N Bedford 16th, ship Jobn (1 hall (of Faichav Fi Pi yeoen; bark Thos Winslow (of Gertporn, De: in Feb, Planter, Pease, Ni to recruit tor home, Spoken June —. in Gulf of joo, oI it on board; had 250 ep. jpoken, dic. Springbok, oy yoda, a iJ ‘The 6 BS reported Olive Clark, ith 1,800 , Naw, wil French Rook till September, thea pro- af hee Benen April 27, for Cape Ton Mary, hence for Galveston. June 26. lat 24, ton 82 89. oud. Factor, hence for Charleston, June % Cape heok- nh Jur: Beauvupa—Arr at 8: y NYerk. at 8D n Yorn soly’ Lb, trom Barbadoes, srr 2th. for if Be to load for ‘25 bark Ana Sawyer Melbourne kon up for 10th, Albert riaiy > brigs Swas, . ia, Baltimore, "Sid Sth brig mop, Lorg, Ciesfu Fonca—1n port Baltimore. ¢; and otters before re: reported trom Pbileceiphit tro Pit 8th; barks Mery ne pail Mt phia pril 1 ‘arr 8th: edt 5, arr 8th, for ai April 3, & Battibore April 29. arr 8th, Dicbels, for NYork with cargo py Henry, Moves, Sor Rantes Bang, arr 2d—see ters. ALBAN Y—Arr July 16 sohrs Vint » o Albany, Hodges do; 9 We i" pide t's Set Wig acted J ‘tor Capito}, a Innell, Ly me : shed beig ‘Win Helbrock, Diz, ship Jackson, Last (of Mystte), ‘and baok te ported, Rio Jansino—tn port June 9 ships David Harrison F mesg os bavecpot 1 brig Lark (Be) ale 8 D eekton (sey Dos de barks Princes ey, jorra Nevada, Foster. Falmouth; tings Boeton, NYorks Spas Cousins, NYork; Ea- loqraphy, Tele onor prev to July 14 bark Mary Chap- 08. 1 Fury 2eobs Mohawk, Grahem, from May 30 ship Sybil, Jenkins, foe ‘Chinebs Ialani resdy. Pos~In port May7 ebip Wiserd, Slate, from Pe- Boston; an Bris Metals ”? from, Qe need mom }, Hell 5 BANGOR—Cld July 14 trig Wm Moore, Eaton. Mueti- nap_ Piledel Svan, Cid sobredase BY) Senge jae Br), Sa) H wer, see ae Qn Sami Bolton, Hogers, N’ Fala RIVER Are July 14 tohr Gra Gall, tmore ter Providence; s} the Thorne, sobre Wi r Corts. Pi 4D Vieree Phi and, do for do ‘ertiand; Superior, : Therese C. Young. Philadelphia pes, Norfolk for Ports até AM calm, bar rid coe hire, Blarkensbip, Borto bark Piymouth, Eng; echr A B Moore, B ry meld Sel FORK EW BEDFORD—Srr Jul; Baltimore; sobre Bisa (U eae tae Becher nie tae A del Boston; Glade, Paine. do Sn Salem s for Chelsea; O jne. Baira—arr July 14 brig Galveston, Flemag, Phitedel- BEVERLY Are July 14 brig Atalaye (of NYorky, Noo- Howlaed, Bal- Cuma Parker, Balti adel ptis On by 2 40: Dior ‘ab ObKET— sia Ha sey oe w Serdaer wet RYPORT—Arr Joly 5 sehrs Mary E Pleroe, Phi- ’ bs Wick. an July 12908» Ropnbile, Sowle, New Bed- any. ipl rr Jaly 15 sobre KJ Munsell, arr July 16 seop a oy Ab er suly 16 ot New Yor, July ony ot wroriiars (Br), Boa A Pr Te Srrowt, Non, Wore: oer og WPOEt—arr daly 1S okey tom r a, NO ear, AF sean # Rar Rang eee? WNT og hn a5 and Phile- : ork 14 bert Catharine, A’