HV 5089 
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 Copy 1 
 
HV 5089 
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 ^L 
 
 THE 
 
 EGAL ASPECT 
 
 OF 
 
 PROHIBITION 
 
 BY 
 
 JOHN C. BENTON 
 
 i 
 
 "Truth, like the sun, submits to be obscured: 
 but like the sun, only for a time." — 
 
 Bovee. 
 
 t\ 
 
 Price 50 Cents 
 
Class _il 
 
 Book. 
 
 __ 
 
 Copyright If. 
 
 COPYRIGHT DEPOSm ' 
 

THE 
 
 LEGAL ASPECT 4£ 
 
 OF 
 
 PROHIBITION 
 
 BY „/ 
 
 JOHN C} ] BENTON 
 
 "Truth, like the sun, submits to be obscured; 
 but like the sun, only for a time." — 
 
 Bovee. 
 
 Price 50 Cents 
 
 GEO. A. PIERCE PRINTING CO. 
 
 PUBLISHERS 
 
 LOUISVILLE, KY. 
 

 
 <h 
 
 
 Copyrighted by 
 
 JOHN C, BENTON 
 
 1909 
 
 oia. \, g 4 542 4 
 AUGJ4. f9Q9 
 
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THE LEGAL ASPECT OF PROHIBITION. 
 
 JOHN CLEMENS BENTON. 
 
 The prohibition movement grows apace. Indeed, it 
 may be said, at last, to have attained the dignity of a 
 national question. True, Congress has not as yet under- 
 taken to legislate on the subject; and in fact, it has no 
 power to do so (in so far as the general public is con- 
 cerned) if the provisions of a seemingly obsolescent Con- 
 stitution are of any force and effect whatever. True, 
 also, that both of the great political parties continue to 
 ignore the movement in their platforms. Nevertheless, 
 ir many sections of the country it constitutes the most 
 important local issue, and in all sections it is a more or 
 less engrossing topic of political discussion. 
 
 Already prohibitory liquor laws obtain in many 
 States and communities, and, if we can credit current 
 statistics, forty per cent, of the people of the United 
 States chafe under their iniquitous and exasperating re- 
 strictions. And, notwithstanding legal fictions to the con- 
 trary, these laws do, in fact, deprive persons of property 
 without due process of law; they do, in fact, impair the 
 obligations of contracts, and they do, in fact, deprive the 
 people of vested rights contrary to the letter and spirit 
 of the Constitution. Moreover, they impede the growth 
 and commerce of individual communities, thereby im- 
 pairing the general prosperity of the Nation; they se- 
 riously cripple the national revenue, and they tend to 
 revolutionize the accepted theory of constitutional gov- 
 ernment. 
 
 For these reasons the question may be considered 
 national, and, perhaps, the most important national ques- 
 tion at present confronting the American people; the 
 one of all others now pending most directly affecting the 
 rights and- liberties of the people, and one upon the 
 
' 
 
 proper solution of which largely depends the integrity of 
 the Constitution and the good repute of the Republic. 
 
 Our public men, who are usually looked upon as lead- 
 ers in political matters, that is to say, our statesmen and 
 politicians, doubtless have opinions on this subject, as 
 they are presumed to have on all matters of public im- 
 port, but for obvious reasons they are, with few excep- 
 tions, conspicuously averse to making them known. 
 
 vThere is another class of public men, however, who, 
 from their- education, their vocation and their general 
 experience and habit of thought, may well be supposed 
 to be the least qualified of all men to expound the question 
 fairly and correctly, namely, the preachers of certain re- 
 ligious sects, which make a fetichism of total abstinence. 
 They, as a class, are least likely to understand the ques- 
 tion, since an understanding of it implies not only a 
 knowledge of the fundamental principles of the common 
 law, a knowledge of the just relation that should be 
 maintained between necessary legal restrictions and the 
 fullest possible measure of individual liberty, and 
 a knowledge of the true function of the civil law in re- 
 spect to religion and morality ; but it also requires a com- 
 prehensive, first-hand knowledge of human nature, and a 
 due appreciation of the practical objections and difficul- 
 ties that hamper the enforcement of a law which a large 
 part of the people believe to be unjust and will not obey. 
 And these gentlemen are not so reticent as our politicians. 
 On the contrary, they freely proclaim their opinions, if 
 not from the house-tops, at least from pulpits and ros- 
 trums, in the magazines and daily press, at the fireside, 
 at the table, on the street corners, traveling and resting, 
 Sundays and week days, wherever and whenever, in 
 short, an opportunity offers ; and if it may be said that 
 they lack inclination or ability to treat the subject with 
 perfect fairness to those most concerned, it cannot be 
 denied that they exhibit the most untiring zeal and 
 persistency. As their opinions and advice, however, 
 
spring from prejudice and misconception, the conse- 
 quence is that in the United States today there exists a 
 curious befuddlement of public opinion concerning the 
 use of alcoholic liquors. 
 
 What is the prevailing opinion on the subject? Can 
 anyone say? Is it that such liquors should not be used at 
 all, as the out-and-out Prohibitionists maintain? Or that 
 they should be used strictly in private and denounced in 
 public, according to the way of the hypocrites who affil- 
 iate with the Prohibitionists? Or, finally,* that they should 
 be used like other fruits of the earth, which an all-wise 
 and bountiful Providence has supplied for man's pleas- 
 ure and benefit — openly, rationally and gratefully, as 
 the advocates of personal liberty contend? 
 
 At present the prevailing sentiment certainly is not 
 that of the Prohibitionists who, indeed, in point of num- 
 bers, are a negligible factor in national politics. As 
 f omenters of trouble and disseminators of pernicious doc- 
 trines, however, and especially as indefatigable vote- 
 getters for their cause, it is otherwise, and they consti- 
 tute a standing menace to constitutional liberty. If the 
 moulding and energizing of public opinion on the sub- 
 ject is to be permitted to devolve upon them by reason 
 of the apathy of those who have broader and truer con- 
 ceptions of the rights and responsibilities of American 
 citizenship, it requires no gift of prophecy to foretell the 
 result. 
 
 The antics of the Carrie Nation reformers, who would 
 Christianize the world with an axe, may be regarded with 
 amused toleration by easy-going Americans when the 
 performances occur in remote communities. "It is noth- 
 ing," they say; "the good sense of the American voter 
 will make all right in the end." But when the crusade is 
 directed against their own communities they will be un- 
 pleasantly surprised to find that the judgment of the 
 American voter has already been warped and under- 
 mined, and that his good sense is subject to occasional 
 
eclipse. It is a grave mistake, therefore, to defer the 
 "campaign of education" until a contest has been for- 
 mally inaugurated in a specific locality and then to con- 
 fine it to that locality; and it is a graver mistake to as- 
 sume, as many worthy citizens do assume, that the con- 
 test only concerns the "liquor interests." 
 4 It concerns every resident of the United States, and 
 every citizen of the United States who truly appreciates 
 the blessings of liberty, and especially the liberty to regu- 
 late his purely personal affairs and his individual con- 
 duct according to his own will and conscience, should 
 aid to the extent of his ability and opportunity in the 
 creation of a sane, sensible and dominating public senti- 
 ment against this vexatious, degrading and wholly un- 
 called for restriction. The proposition is so repugnant 
 to American traditions, American ideas and ideals, 
 American laws, customs and theories of government that 
 one finds it difficult to believe that a majority of voters 
 in any American community would support it — would 
 stultify themselves and defame their countrymen by 
 maintaining that prohibitory liquor laws are necessary 
 for the protection of the American people. Are the Amer- 
 ican people destitute of self-respect and commonsense, 
 and utterly incapable of self-government? Are their 
 habits and appetites so swinish and besotted that such 
 laws are necessary or desirable? And are they so de- 
 ficient in courage and intelligence that courts may safely 
 usurp the power to alter the Constitution and deprive 
 them of inalienable rights by,a process of forced con- 
 struction and interpretation? /Shall Government under- 
 take to prescribe what free/nd independent citizens of 
 the Eepublic shall or shall /not eat and drink? Is that 
 American liberty? 
 
 It is true that in local campaigns the "reformers" 
 usually disguise their real purpose by ostensibly warring 
 against saloons only. But this should deceive no one. 
 The various organizations enlisted in "the fight against 
 
alcohol" adopt such methods of achieving the desired re- 
 sult as to their respective leaders may appear most ex- 
 pedient, bnt with all the ultimate object is the same, 
 namely, the absolute prevention of the manufacture, sale 
 and use of all kinds of drinkable spirituous, vinous and 
 malt liquors. This is freely admitted by many of their 
 speakers and writers, it is exemplified by their tactics, 
 and it is expressly declared in the platform of the Pro- 
 hibition party. The attacks on licensed saloons are 
 merely preliminary skirmishes to be followed, when suc- 
 cessful, by a general attack on all makers, sellers and 
 users of the commodity in question; a commodity which 
 many of our citizens consider essential to their comfort 
 and health, but which our Prohibition friends look upon 
 with disfavor. 
 
 It is their opinion that the use of alcoholic liquors is 
 harmful and "wicked," and they are undoubtedly en- 
 titled to entertain that opinion and to conform their con- 
 duct in accordance with it. Furthermore, they possess 
 the right to undertake the conversion of others to their 
 views and practices by argument and persuasion, but 
 they have not the right to compel them by law. 
 
 It is the opinion of their fellow-citizens, on the other 
 hand, that the moderate use of alcoholic liquors is proper 
 and beneficial, and to be encouraged on social, hygienic 
 and economic grounds, and they are equally entitled to 
 their oxjinion, and possess the right to regulate their con- 
 duct accordingly. 
 
 .i The right of individual opinion and action, with in- 
 dividual responsibility, is the vital element of liberty. 
 Without it liberty cannot exist, and a country where the 
 law deprives the people of this essential and distinctive 
 right of liberty is not a free country. Such laws, and all 
 laws which unnecessarily abridge the natural rights of 
 man, are evidence of despotic government and merely re- 
 flect the arbitrary will of the ruler; and of all forms of 
 government despotism is the most hateful to liberty- 
 
loving men. And yet American citizens, presumably of 
 sufficient intelligence to understand and appreciate the 
 difference between freedom and tyranny, permit them- 
 selves to be cajoled into the support of a movement which 
 would convert a constitutional government into a despot- 
 ism of the most odious form, a despotism animated and 
 controlled by blind, senseless and unreasoning f anatisicm. 
 How are we to explain it? 
 
 The explanation generally advanced and apparently 
 accepted as satisfactory by many is usually condensed 
 into one word— fanaticism. But this summary method 
 of accounting for the surprising fact of a free people sur- 
 rendering important and cherished rights at the dictation 
 of insistent bigotry, and that, too, without benefit, but 
 rather with detriment to the State, is not convincing, be- 
 cause we know that the majority of American voters are 
 not fanatics. 
 
 Only a superficial observer of American character 
 and American affairs could be misled into ascribing Pro- 
 hibition victories in particular localities to the apparent 
 fact that in those localities fanatics outnumber the sane 
 citizens. But, nevertheless, it is true that fanaticism is 
 chiefly, if not wholly, responsible for the debauched pub- 
 lic opinion which makes such victories possible, and that 
 despite the fact that fanatics constitute an insignificant 
 minority of the legal voters. It is fanaticism that in- 
 itiates the warfare against liquor, recruits, inspires and 
 marshals the combatants, plans and directs the cam- 
 paigns, and, in the event of victory, assumes the credit 
 and prestige of success — such credit and prestige, that is 
 to say, as may rightfully attach to the responsibility for 
 unjust and vexatious laws. Indeed, the idea of institut- 
 ing and prosecuting such a war, and enacting such laws, 
 laws which ignore the elementary principles of justice 
 and wrongfully deprive free citizens of important prop- 
 erty and personal rights, would never occur to a sane 
 mind. And yet such laws are enacted (and systematically 
 
evaded) in many States of the Union, to the shame and 
 reproach of our boasted civilization. 
 
 ibid, more surprising still, such laws are upheld by 
 our courts and declared to be constitutional, although 
 they are laws which the Constitution expressly declares 
 the States shall not pass. 
 
 The enactment and enforcement, or attempted en- 
 forcement, of prohibitory liquor laws in various States of 
 the Union is an achievement which reflects no credit upon 
 the intelligence and patriotism of the American people. 
 
 It is a stigma upon the Republic, a violation of the 
 basic principles of constitutional government, a ruthless 
 trampling upon the sacred rights of the minority by a 
 factional majority. And whether these laws are to be 
 attributed to the persistent preaching of false doctrines 
 by fanatical religionists, or to the misdirected efforts of 
 well-meaning enthusiasts to reform the morals of the 
 world by legislative enactment, they are equally unjust 
 and in conflict with the provisions of the Federal Consti- 
 tution. 
 
 The right to eat and drink as one will is necessarily 
 included in the right of liberty, the same as the right to 
 come and go, or the right to labor, or to buy and sell. It 
 is something more than a mere privilege which the Legis- 
 lature may grant or take away at pleasure. It is not a 
 right conferred by the State ; it is a natural right, a right 
 inherent in free men and absolutely inalienable. 
 
 And while it is undoubtedly true that in organized 
 society the natural rights of individuals must be subordi- 
 nated to the superior rights of society, and they are there- 
 fore rightfully subject to modification and control by the 
 general government for the common good, it is also true 
 that governmental interference with, or abridgement of, 
 individual rights, should be, and in constitutional gov- 
 ernment is, limited by the covenant, express or implied, 
 between the government and the people, which constitutes 
 the fundamental law of the land. 
 
WHAT THE CONSTITUTION IS. 
 
 In our own country the law which authorizes and 
 limits the power of the State to abridge or prohibit the 
 enjoyment of natural rights is embodied in the Federal 
 Constitution. And the Constitution is not a charter or 
 grant from the Government conferring specified rights, 
 privileges and immunities upon the people, as some writ- 
 ers and speakers appear to believe. It is an institutional, 
 creative act of the people establishing the government. 
 
 It is the people who grant, and not the government, 
 and it is not the people of one or more States, but the 
 people of the United States. 
 
 " We, the people of these United States,. . . .do ordain 
 and establish this Constitution." 
 
 The people establish the government and define its 
 powers, and then they t expressly declare that: (1) ''The 
 enumeration in the Constitution of certain rights shall 
 not be construed to deny or disparage others retained by 
 the people;" and (2) "The powers not granted to the 
 United States by the Constitution, nor prohibited by it 
 to the States, are reserved to the States respectively or 
 to the people." 
 
 That is to say, for instance, that unless the right to 
 use and traffic in alcoholic liquors has been surrendered 
 by the people, they still retain it (assuming that they ever 
 possessed it), and neither the United States nor the indi- 
 vidual States have power "to deny or disparage" it. It 
 is not a question of the importance of the right, nor of the 
 wisdom or expediency of permitting the people to exer- 
 cise it, though it might puzzle one to name a reserved 
 right of greater importance than the right of a free man 
 to determine for himself what he shall or shall not eat or 
 drink; nor is it a question of what the Legislatures or 
 courts have declared, for neither Legislatures nor courts 
 have power either to confer the right or take it away. 
 That power rests solely with the sovereign people. 
 
 It is merely a question as to the existence of the right. 
 
If the right exists, no State has the power, under the Con- 
 stitution, "to deny or disparage" it. And if it ever ex- 
 isted it exists today, for the people have never sur- 
 rendered it nor empowered either Federal or State gov- 
 ernment to divest them of it. 
 
 The right, if it be a right, is one of the "retained" 
 rights, since it is not an enumerated right, and being a 
 retained right it is protected from governmental repu- 
 diation or abridgment by the terms of the Constitution. 
 To differentiate it from other retained or reserved rights 
 and hold that it may be abridged or absolutely abolished 
 by the Legislature, as some of our courts have done, be- 
 cause in their opinion public policy, or the Christian re- 
 ligion, or the welfare of certain individuals, would seem 
 to require it, or to so hold for any other reason, is not in- 
 terpreting the Constitution, but altering it. If the courts 
 may so hold in respect to the right to use and traffic in al- 
 coholic liquors, there is no logical reason why they may 
 not so hold in respect to the right to use and traffic in 
 tea or coffee, or in respect to any right, privilege or im- 
 munity which the people, when they established the Con- 
 stitution, plainly intended to safeguard from the hazards 
 of legislative interference or judicial construction. If 
 the courts may by interpretation and construction em- 
 power legislators to do that which the Constitution in 
 plain terms expressly forbids them to do they may by the 
 same process construe away the Constitution altogether. 
 
 Both the letter and the spirit of the Constitution indi- 
 cate clearly that it was the intention of the people to re- 
 tain all the rights, privileges and immunities of perfect 
 individual liberty except in so far as it might be necessary 
 to abridge them for the general good; and power to 
 abridge them only to that extent and for that purpose, 
 was accordingly granted to the Federal government or 
 to the States. The rights, privileges and immunities thus 
 brought within the "sphere of legislative control" and 
 subject to abridgment are expressly enumerated in the 
 
Constitution, or plainly implied, and all other rights are 
 "retained by the people," and all other powers are "re- 
 served to the States respectively or to the people." Such 
 being the case one would suppose that there could be no 
 doubt about the unconstitutionality of an act which de- 
 prives the people of any "retained" right, an act which 
 the legislature had no express, or necessarily implied, 
 power to pass ; or that, if a doubt should exist, the rule of 
 construction would be to resolve it in favor of the people 
 rather than against them— in support of their ancient 
 rights and customs, rather than in defiance of them. 
 
 By the Constitution, these "retained" or "reserved" 
 rights of the people are made secure from impairment by 
 legislatures or courts, and nothing short of an amend- 
 ment to the Constitution can empower a State to nullify 
 them. The assumption that a majority of its citizens can 
 so empower a State is clearly untenable, since it implies 
 that a State can change the Constitution. The argument 
 is, that the people are supreme and may, therefore, in the 
 exercise of their sovereign power, prohibit the sale of 
 liquor or any other commodity. Very true, the people 
 are supreme, and they may authorize the prohibition of 
 traffic in any commodity. But who constitute "the peo- 
 ple®" Not the people of Maine, nor the people of Kan- 
 sas, nor the people of Oklahoma, nor the people of any 
 particular State, but "the people of these United States." 
 Whence people of the United States by amendment to 
 the Constitution choose to grant authority to the States, 
 or to the Federal government, to enact prohibitory liquor 
 laws then such laws will be Constitutional, but not until 
 then. In point of fact, however, States do now enact such 
 laws and courts of last resort uphold them, and whatever 
 our individual opinions may be as to the soundness of 
 such decisions, we are bound to accept them as the law. 
 If they are right, they will be respected and followed be- 
 cause of that fact. If they are wrong, they will be fol- 
 lowed just the same — for a time at least, by virtue of that 
 
 10 
 
maximized device for perpetuating erroneous interpreta- 
 tions of the law which lawyers call stare decisis. So, 
 whether the decisions are right or wrong the result is the 
 same to the people so far as the invasion of their rights 
 is concerned. 
 
 Therefore, if the people would retain their rights and 
 escape the affliction of obnoxious and oppressive laws, 
 they must rely on the ballot and an enlightened public 
 opinion rather than trust in the delusive declarations of 
 the Constitution or the assumed infallibility of the courts. 
 But, it is contended, the so-called right to drink or 
 traffic in alcoholic liquors is not a right at all. It is a 
 mere privilege or license graciously permitted by the sov- 
 ereign government to the subject people ,and revocable 
 at will; therefore, it is argued, a State may prohibit the 
 traffic. Tlds conclusion follows, of course, if the premises 
 are granted, but the premises are not granted. They are 
 not true. Our government is one of limited and defined 
 powers, and the people are sovereign. Every American 
 has been taught this and believes it, except, perhaps, 
 those whose sense of right may have been corrupted by 
 the virus of Prohibition. 
 
 THE BIGHT TO USE LIQUOR UNDER THE COMMON LAW. 
 
 The right has always been respected by government 
 and protected by the common law. It is not possible, of 
 course, to cite any special grant of the right for the suf 
 ficient reason that it never was granted. It is, as I say, 
 a natural right and has always existed, like the right to 
 provide and eat food. Nor can early decisions affirming 
 the right be cited because it never was questioned prior 
 to the advent of the Prohibitionist in recent times. But 
 the continuous existence of the right is an established 
 historical fact of which the courts are bound to take ju- 
 dicial notice. 
 
 In Magna Charta (A. D., 1215) for instance, we find 
 these words: "There shall be one measure of wine 
 
 11 
 
throughout our whole kingdom, and one measure of ale, 
 that is the London quart, and one width of dyed cloth 
 and of russets and of halbergets, that is two ells within 
 the selvages ; of weights, moreover, it shall be as of meas- 
 ures. ' ' 
 
 Here we see that the right to traffic in alcoholic 
 liquors, like the right to traffic in cloth and grain, was 
 deemed of sufficient importance to be specially mentioned 
 in the Great Charter, and protected by the adoption; of a 
 legal standard of measure. , > , : 
 
 The right is referred to again in the New Ordinances 
 (A. D., 1311) which established the "new" and -^en- 
 hanced" customs on wools, cloths, wiues and other 
 things. : • . : • i .... 
 
 IN COLONIAL DAYS. ..: ».- ; '.. 
 
 In colonial days 'the traffic in liquor was also 
 regarded as a right; and not as a special privilege, bestow- 
 able and revocable at ,\]ie pleasure of the government. 
 
 In the "First Code, of : Laws" of Connecticut (May, 
 1650) we read: "Fqr^smucji as there is a necessary use 
 of houses of common entertainment in every Common- 
 wealth, and of such as retail wine, beer and victuals, yet 
 because there are so many abuses. of that lawful liberty, 
 both by persons entertaining and persons entertained, 
 there is also need of strict laws and rules to regulate such 
 an employment : 
 
 "It is therefore ordered," etc. 
 
 Here Ave have not only a recognition of the fact that 
 there is a necessary use "of such, as .retail wine, beer and 
 victuals;" and that the conducting of such business is a 
 "lawful liberty;" but we have also a sound exposition of 
 the true function of government in respect to the liquor 
 traffic, namely, to restrain or punish, not the use, but only 
 the abuse, of that "lawful liberty." 
 
 Our puritanical ancestors seem to have had a pro- 
 founder knowledge of constitutional government, and a 
 
 12 
 
greater respect for the rights of individual citizens than 
 some of their descendants. 
 
 Witness the declarations in the preamble and first 
 paragraph : 
 
 ' ' Forasmuch as the free fruition of such liberties, im- 
 munities and privileges, as humanity, civility and Chris- 
 tianity call for, as due to every man in his place and pro- 
 portion, without impeachment and infringement, hath 
 ever been and ever will be the tranquility and stability of 
 churches and Commonwealths, and the denial or deprival 
 thereof the disturbance, if not ruin, of both: 
 
 "It is therefore ordered by the Court and the author- 
 ity thereof, that no man's life shall be taken away, n© 
 man's honor or good name shall be stained, no man's 
 person' shall be arrested, restrained, banished, dismem- 
 bered, nor anyway punished, no man shall be deprived of 
 his r wife or children, no man's goods or estate shall be 
 taken away fr-Oin him, or in any ways endangered, under 
 color of law, or countenance of authority, unless it be by 
 the Virtue or equity of some express law of the country 
 warranting the'sadne, established by a General Court and 
 sufficiently published 1 ,' or, in case of the defect of a law 
 in any particular case by the word of God." 
 
 (The preamble and the paragraph which follows it are 
 copied from 1 the Massachusetts Body of Liberties.) 
 
 ii I commend the careful consideration of the princi- 
 ples set forth' in this brief extract to Prohibitionists and 
 others who believe in restrictive and coercive legislation, 
 and in stretching the Constitution by construction and 
 interpretation be'yOnd its normal limits. If they grasp its 
 full significance they will understand: (1) that the prime 
 object of government is the stability and tranquility of 
 the Commonwealth: (2) that this object is more surely 
 attained by securing to all citizens 'the free fruition' of 
 their customary and lawful liberties, immunities and 
 privileges without impeachment or infringement, since 
 the ' denial or deprival thereof invites 'disturbance 
 
 13 
 
and ruin;" and (3) that simple justice demands that 'no 
 man's goods or estate shall be taken away from him, nor 
 anyways endangered, under color of law or countenance 
 of authority, unless it be by the virtue or equity of some 
 express law of the country warranting the same.' " 
 
 Now, prohibitory liquor laws violate these elementary 
 principles of sound legislation, so essential to good gov- 
 ernment, and menace the stability and tranquility of the 
 Commonwealth. They deny to citizens their customary 
 and lawful rights, and they take from them their goods 
 and estate, without compensation, under mere color of 
 law, that is to say, by virtue of an act passed by the Leg- 
 islature of a State, which the supreme law of the land 
 expressly declares no State shall pass. 
 
 I have cited the ancient laws of Connecticut because 
 of the popular (though erroneous) belief that the laws 
 of that colony were distinguished by their special sever- 
 ity and their disregard of individual rights, as compared 
 with the laws of other colonies and other countries of that 
 day; and, therefore, if precedent for prohibitory liquor 
 laws existed anywhere that it probably would be found 
 in the records of that particular colony. 
 
 But such is not the case. We find that the conscien- 
 tious and God-fearing men who established the Con- 
 stitution and the First Code of Laws of that colony re- 
 spected ''the lawful liberty" and individual responsibil- 
 ity of their fellow citizens as free men and co-equals, and 
 permitted every man to decide for himself, according to 
 bis own reason and conscience, whether or not he should 
 abstain altogether from the use of wine and other intoxi- 
 cants. Fully recognizing the evils of "excessive tip- 
 pling" and avowedly striving to establish "an orderly 
 and decent government according to G-od's ordinances, 
 and to maintain and preserve the liberty and purity of the 
 Gospel of our Lord Jesus," they could see no occasion, 
 reason or pretext for prohibiting the use of liquor, but 
 
 14 
 
 
wisely directed tiieir efforts, as law-makers, to the cor- 
 rection of those who wrongfully abused their lawful lib- 
 erty to use it. And they sanctioned the use of liquor, 
 not for policy's sake, for the majority of the people were 
 
 crate, and used liquor sparingly, if at all, but they 
 did so because in their judgment it was right. It was 
 not only in conformity with the law and the immemorial 
 custom of Christian nations, but it was approved by the 
 revealed word of God, and by the precept and example 
 
 eir Lord Jesus Christ. They looked upon it as a 
 right which they had no authority to question and no 
 power to abolish. And so it was regarded by all the col- 
 onies, and by all the people, Puritan and Cavalier alike — 
 as a right, a natural, inherent, inalienable right. 
 
 THE RIGHT UKUEB THE CONSTITUTION. 
 
 When the people came to establish the Constitution 
 they knew what rights they possessed and how they 
 would be, or might be, affected by the powers granted to 
 the Government. And seeing that they granted no power 
 to either Federal or State government to deprive them 
 of right in question, and expressly declared that all rights 
 and powers not enumerated or granted were retained by 
 or reserved to the people, the logical conclusion follows 
 that the right was in fact reserved to the people. If that 
 is the case, the people still retain the right and cannot 
 lawfully be deprived of it, except by amendment of the 
 Constitution. 
 
 The process of reasoning by which the right to drink 
 what one will is differentiated from any other retained 
 right, in respect to its inviolability, has never been dis- 
 closed and I confess nry inability to divine it. Those who 
 maintain that they do differ in that respect, content them- 
 selves with an ex cathedra statement that such is the case 
 and let it go at that. Their contention is that, while the 
 right to drink wine and spirituous liquor is undoubtedly 
 
 15 
 
a "retained" right, it is a right of such peculiar nature 
 that neither Congress, nor the Legislatures, nor the 
 Courts are obliged to respect it. Truly, a queer sort of 
 right. If this right may be legislated or construed away 
 one is led to suspect that all "retained" rights are sub- 
 ject to the same contingency. 
 
 While there may be a difference between the various 
 "retained" rights, in respect to their relative importance, 
 as, for instance, between the right to trade and labor, and 
 the right to drink ale or wine, there is no difference be- 
 tween them in respect to their inviolability, and the man- 
 ner in which they are assured to the people. They are 
 simply rights which the people possessed under the com- 
 mon law and which, when they established the Consti- 
 tution, they expressed therein their purpose to retain. 
 
 Upon the score of inviolability they stand upon pre- 
 cisely the same footing, and if one may be denied or dis- 
 paraged so may the others, and the constitutional pro- 
 vision to protect rights not enumerated, and to prohibit 
 powers not granted, is meaningless. 
 
 But the Constitution further provides that: "No State 
 shall make or enforce any law which shall abridge the 
 priviliges or immunities of citizens of the United States." 
 
 What priviliges and immunities are here referred to ? 
 Why, evidently all privileges and immunities which the 
 citizens had theretofore enjoyed and which were not 
 abridged by the Constitution, and among them, as we 
 have seen, were those of manufacturing, buying, selling 
 and using spirituous, vinous and malt liquors. There 
 is nothing in the Constitution which indicates that the 
 people intended to surrender these privileges, or to 
 authorize either the Federal or State government to 
 abridge them. It is therefore manifest, if we take the 
 Constitution to mean what it says, that no State may 
 "make or enforce any law which shall abridge" these 
 privileges. But, it is argued, we are not to take the Con- 
 stitution to mean what it says, but to mean what the 
 
 16 
 
Court, in its superior wisdom, may determine it ought to 
 have said. 
 
 When the Constitution positively prohibits a State 
 from exercising certain powers or making and enforcing 
 certain laws, we are to assume that the prohibition is 
 subject always to a convenient proviso, unexpressed, but 
 necessarily implied and amply adequate to the exigencies 
 of the case. 
 
 If, for instance, a State is forbidden to make or en- 
 force a law which would abridge the privileges or im- 
 munities of the people, it would seem that the legal pre- 
 sumption is, not that all immunities and privileges are 
 thus protected from abridgment by the States, as the 
 actual words imply, but only some of them, the various 
 States to determine each for itself which may be abridged, 
 as if the section with the implied proviso, duly expressed, 
 read as follows : 
 
 "No State shall make or enforce any laws which shall 
 abridge the privileges or immunities of tEe citizens of the 
 United States, except ivhen a State may deem it expedient 
 to make and enforce such laws as a police regulation, or 
 to regulate commerce, or to promote the general tvelfare, 
 er in the interest of public policy, or for some other 
 reason which to the Legislature may appea-r good and 
 sufficient." 
 
 True, this is rather straining the accepted rule of con- 
 struction, but — well, it is necessary. Otherwise, in order 
 to validate such laws, recourse must be had to the pre- 
 scribed remedy of constitutional amendment, which, as 
 everyone knows, is a cumbersome process, tedious, trou- 
 blesome and uncertain. The method in vogue of avoiding 
 or removing constitutional obstacles by supplying omitted 
 but necessary qualifying clauses as occasion may re- 
 quire, on the near principle that a Court may assume 
 that to have been done or intended which ought to have 
 been doue, is more expeditious, quite as effective, and 
 therefore to be preferred. 
 
 IT 
 
And, so long as the people do not seriously protest 
 against the usurpation of their special prerogative by 
 the courts, it will doubtless continue to be the approved 
 method of altering and amending the Constitution, and 
 adapting it to the requirements of changed conditions or 
 new theories of government. 
 
 The same clause of the Constitution further provides : 
 "Nor shall any State deprive any person of life, liberty 
 or property without due process of law." 
 
 "Due process of law" has been defined by the courts 
 to mean "a course of legal proceedings according to 
 those rules and principles which have been established 
 by our jurisprudence for the protection and enforcement 
 of private rights;" or, in other words, a trial before a 
 court of competent jurisdiction according to law. In 
 other cases, however, it has been held that the words "do 
 not necessarily imply a regular proceeding in a court of 
 justice." (Davidson vs. New Orleans, 96 U. S., 97.) 
 
 But whether they imply a regular trial or not, they do 
 imply a hearing of some sort according to the pre- 
 scribed rules of law, with a view of administering justice, 
 call it what you will. "By 'due process' is meant a pro- 
 ceeding following the forms of law, appropriate to the 
 case, and just to the parties affected. It must be pursued 
 in the ordinary mode prescribed by the law; it must be 
 adapted to the end to be attained; and whenever it is 
 necessary for the protection of the parties it must give 
 them an opportunity to be heard respecting the justice 
 of judgment sought. '' ' (T.urpin vs. Leman, 187 IT. S., 51.) 
 
 "Due process," then, as used in this section, cannot 
 be construed to embrace a popular election nor an act of 
 the Legislature. Therefore, according to the Constitu- 
 tion, no person can be deprived of his liberty or property 
 by either of these methods. And yet it is done, and our 
 courts justify such violation of the Constitution on the 
 ground that it is a legitimate exercise of the police power 
 of the States. Consider what this means. 
 
It means, in the first place, in the opinion of the 
 courts, that the police power of the States is superior to 
 the Constitution, since by virtue of that power a State 
 may do that which the Constitution distinctly prohibits 
 it from doing. Is this law I Let it be admitted that 
 among the reserved powers of the States is that of duly 
 safeguarding the person, the health and the property of 
 the citizens, and maintaining the public peace and order 
 (and this is the true function and the normal limit of the 
 so-called police power) ; and let it be admitted further 
 that in determining the constitutionality of laws, alleged 
 to be an exercise of this power, all doubts should be re- 
 solved in favor of the laws, still no warrant exists for up- 
 holding a particular law, -which the Constitution ex- 
 pressly declares no State shall pass, for in such a case 
 there are no doubts to resolve. 
 
 When the Constitution says that no State shall de- 
 prive any person of life, liberty or property without due 
 process of law, how can doubt exist as to the unconstitu- 
 tionality of an act which deprives persons of liberty and 
 property by an election, or a city ordinance, or an act of 
 the Legislature, or in any other way than the one way 
 prescribed — by "due process of law," which, as we have 
 seen, implies, if not a regular trial, at least some kind of 
 legal proceeding with the essential features of a trial. 
 
 Even in the absence of an express inhibition in the 
 Constitution, a law which deprives persons of life, liberty 
 or property without trial should be declared void, since 
 it is contrary to the whole spirit and tenor of that instru- 
 ment, and "defeats the controlling purpose of the people 
 in founding the government, namely, to establish justice 
 and to secure to themselves and their posterity the bless- 
 ings of liberty. 
 
 But to uphold a law of the kind in defiance of express 
 constitutional inhibitions, for the sole reason that the law 
 per se may be considered to come within the purview of 
 the implied police power of a State, is to bold, in effect, 
 
 19 
 
that a State is superior to the Constitution and may dis- 
 regard the checks and limitations which the people of the 
 United States, in establishing the Constitution, deliber- 
 ately imposed upon the specified and the reserved 
 powers of the several States. The doctrine is so antag- 
 onistic to the fundamental principles of the Constitution, 
 so contrary to traditional and ingrained belief in its su- 
 premacy and the absolute authority of its mandates, that 
 one is amazed to find it approved by any American court 
 of general jurisdiction. 
 
 That a State, by virtue of a reserved power, may do 
 that which the Constitution expressly declares it shall 
 not do! It is a most extraordinary proposition. It is 
 subversive of the special object of a written Constitution 
 — -to limit and define the powers of government clearly 
 and exactly and thereby prevent or lessen the liability 
 of error or usurpation. It is fraught with potentialities 
 of disaster to the Constitution. If, by judicial construc- 
 tion, a peremptory mandate of the Constitution may be 
 obliterated to permit the exercise of some implied, extra- 
 constitutional power, the Constitution is doomed, for im- 
 plied powers and occasion for their exercise will then 
 arise as political exigencies may demand. But it may 
 be argued, it does not obliterate, or ignore, or contra- 
 vene the Constitution at all. The "liberty" of those who 
 use or traffic in alcoholic liquors is not the kind of liberty 
 the Constitution designs to protect. So be it. The courts 
 have so decided, and until some future Marshal shall 
 appear and clarify our muddled fountains of justice, we 
 must, perforce, accept as the law of the land the strange 
 dictum that the liberty of those who drink wine differs so 
 essentially from the liberty of those who drink Peruna, 
 that a Legislature, or a city council, or a board of super- 
 visors, or any old board may suppress it at will. 
 
 But the property? Is not alcoholic liquor property? 
 And breweries? And distilleries? And all sorts of lna- 
 
 30 
 J 
 
ehinery.and apparatus adapted exclusively to the manu- 
 facture of liquors? And the various materials and sup- 
 plies? Are not all these things property? 
 
 The Supreme Court of the United States has said that 
 "the word 'property,' in the 14th amendment, embraces 
 all valuable interests which a man may possess outside of 
 himself — outside of his life and liberty. ' ' 
 
 How, then, may a State deprive persons of the prop- 
 erty mentioned without a trial, and not violate the Con- 
 stitution? It will hardly be contended that the trial 
 which may occur after the enactment of a prohibitory 
 law, a trial to test its validity, or to inflict penalties for 
 its infraction, is the trial or due process of law to which 
 the Constitution refers. The damage has then been done, 
 the persons already deprived of their lawful liberty and 
 property by the legislative act, which certainly is not the 
 "due process of law" contemplated by the Constitution. 
 But the liberty and property of such persons are appar- 
 ently of no moment. It would seem that those who use or 
 deal in alcoholic liquors are excluded from that equal 
 protection of the laws which the Constitution assures to 
 all persons, and that their rights may be ignored, their 
 liberties denied, and their property confiscated with im- 
 punity. 
 
 "Nor shall any State deprive any person of life, lib- 
 erty or property without due process of law." If these 
 words mean anything at all, they mean that the Consti- 
 tution protects from spoliation the property of a saloon- 
 keeper the same as it protects the property of a preacher ; 
 the product of a distillery or brewery the same as the 
 product of a mill or factory. The State shall not deprive 
 any person of ami property without a legal trial is what 
 the Constitution says. "Pooh!" reply Prohibitionists, 
 with the calm assurance of those who have something up 
 their sleeve, "what's the Constitution? Under the police 
 power, a State may do anything, and that settles it." So 
 the courts say, also. And yet it is not — well, if it is the 
 
law, it is not like the laws of the Medes and Persians, and 
 we may still hope that some day it will be changed to 
 conform with the principles of right and justice, and the 
 plain requirements of the Constitution. 
 
 Consider the proposition. Citizens engage in the busir 
 ness of manufacturing and selling a commodity in gen- 
 eral use, a business known to all men, since it has existed 
 always and everywhere, and moreover a business ex- 
 pressly sanctioned by our laws, both State and Federal. 
 By the expenditure of labor and capital, and relying on 
 the good faith of the government, these citizens in time 
 build up a great industry representing in the aggregate 
 billions of dollars, giving employment to millions of per- 
 sons, and like all great industries, increasing the business 
 of other industries and persons. Their business extends 
 from State to State throughout the Union, to foreign 
 countries, to all parts of the world. Now comes a State, 
 and for a good reason or a bad reason, or for no reason 
 at all, passes an act prohibiting the business within its 
 boundaries and closing the brewery, or distillery, or 
 winery, as the case may be. Is this due process of law"? 
 We know it is not. And is not the closing of breweries, 
 distilleries and wineries, and preventing the sale of their 
 products depriving persons of their property? Assur- 
 edly. Then the act is clearly invalid. 
 
 Our State Legislatures are not supreme, like the Eng- 
 lish Parliament. They are subject to a written Constitu- 
 tion, as everyone knows. 
 
 ''This Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties 
 made, or which shall be made under the authority of the 
 United States, shall be the supreme law of the land, and 
 the judges in every State shall be bound thereby, any- 
 thing in the Constitution or laws of any State to the con- 
 trary, notwithstanding." It is the Constitution, then, 
 and the laws made "in pursuance thereof," and not the 
 police power, and laws made by virtue thereof, that con- 
 
 22 
 
slitute "the supreme law of the land by which all judges 
 .shall be bound, anything in the Constitution or laivs of 
 any State to the contrary notwithstanding." 
 
 If, therefore, the Federal Constitution had expressly 
 granted power to the States to make necessary police 
 regulations, which is all that can be claimed under the 
 implied power, and the Constitution of a State expressly 
 authorized the enactment of a statute to deprive persons 
 of life, liberty or property without a trial, or "due pro- 
 cess of law," it would be in conflict with the provisions 
 of the Federal Constitution and of no force and effect, 
 and a statute in pursuance thereof would be absolutely 
 void. It is not enough that an act be a reasonable police 
 regulation. It must also be an act not prohibited by the 
 Constitution. So, even if it be admitted that a prohibitory 
 liquor law is per se a proper police regulation, yet if it is 
 one 'prohibited by the Constitution, as depriving persons 
 of liberty and property without due process of law, it is 
 invalid. 
 
 The Constitution further provides that : 
 
 "No State shall .... pass any bill of attainder, ex post 
 facto law, or law impairing the obligation of contracts." 
 (Sec. X., clause 1.) 
 
 We are not concerned with bills of attainder ; they are 
 not pertinent to the matter under discussion. We are 
 concerned with the inhibition chiefly in so far as it relates 
 to laws impairing the obligation of contracts; though 
 laws prohibiting and penalizing the carrying on of any 
 established business, which the law permitted to be car- 
 ried on at the time it was established, partake of the 
 nature of ex post facto laws, since they impose a punish- 
 ment for an act which was not punishable, or declared 
 to be an offence, by any previous law. The right to 
 carry on a business is implied in the right to establish it 
 and constitutes, in fact, its essential element of value, 
 the special inducement which led to its establishment, 
 it is, indeed, an extraordinary sense of justice that would 
 
deny the right to carry on a lawfully established busi- 
 ness, whether the business be that of milling- and selling 
 flour, or brewing and selling beer. Consider the glaring 
 injustice of the proposition. A brewer, or a brewing 
 company, for the outlay requires large capital, purchases 
 land, erects suitable buildings, instals the necessary ma- 
 chinery and apparatus, provides the requisite materials 
 and supplies, engages employes and finally, after the ex- 
 penditure of time, labor and money, the plant is equipped 
 and ready for business. Then comes more expense in 
 advertising and introducing the product to the trade. At 
 first, as with all business concerns, it is all outgo and no 
 income, and probably the promoters of the enterprise, in 
 order to obtain the capital required, have sold, mort- 
 gaged and hypothecated property and securities, and it 
 may take the net earnings of many years to reimburse 
 them. But they look to the future, believing that event- 
 ually their investment will be profitable. It is the per- 
 manency of the business, the right to continue it, the be- 
 lief that ultimately it will prove remunerative, that com- 
 mends and justifies the venture. And the business, being- 
 lawful and having always been lawful, why should they 
 not count on the right to continue it! Why, in addition 
 to the ordinary hazards of all business ventures, should 
 they be required to incur the hazard of confiscation by the 
 government? It is neither law nor justice, and an act 
 which purports to prohibit — not to regulate, but prohibit 
 --a business which was lawful when established, is to 
 all intents and purposes ex post facto and void. 
 
 AS TO IMPAIRING THE OBLIGATION OF CONTBACTS. 
 
 "No State shall pass any law impairing the ob 
 
 ligation of contracts." 
 
 The contracts here referred to are not contracts of 
 any special kind or importance, as, for instance, con- 
 tracts between States, or between a State and an individ- 
 
 24 
 
ual or individuals. The provision applies to all lawful 
 contracts. It is immaterial who the contracting parties 
 may be, or what may be the subject matter of the con- 
 tract, provided only that the contract was lawful when 
 made. Contracts made by a brewing company with the 
 owners of buildings, for the rent of warehouses, stables 
 and salesrooms, or with farmers for barley, oats, hay and 
 other supplies, or with the proprietors of newspapers and 
 magazines for advertising, or with banks and other finan- 
 cial institutions for money borrowed or loaned, or with 
 manufacturers of casks, barrels, boxes, bottles and other 
 materials, or with any of the numerous corporations, com- 
 panies and individuals with whom they have business 
 dealings, are entitled to the benefit of this constitutional 
 provision the same as the Governor of a State in respect 
 to his salary. And these contracts are entered into solely 
 on account of the ability, or presumed ability, of the brew- 
 ing company to suppty beer. But how can it supply beer 
 and fulfill its various contractual obligations if the State 
 prohibits the manufacture, and sale of beer? The pro- 
 hibition not only impairs, it virtually abrogates these 
 contracts. That being the case, the prohibition is for- 
 bidden by the Constitution and therefore void, and no 
 court is empowered to declare it valid, notwithstanding 
 the political, religious, moral or social exigencies of the 
 case may seem to demand it. To hold otherwise and per- 
 mit a State to violate a positive constitutional injunc- 
 tion is to nullify the Constitution protanto. Are contracts 
 made by and with persons engaged in the liquor traffic 
 excepted from the protection of the constitutional pro- 
 vision? It is not so stated in the Constitution. But, per- 
 haps, this is another case of suppressed proviso, and we 
 should construe the section as if it read as follows : 
 
 "No State shall pass a law impairing the obligation 
 of contracts, provided always, however, that a State may 
 impair or abrogate contracts based on or relating to 
 traffic in any commodity , the manufacture, importation 
 
or sale of which the State may hereafter determine to 
 prohibit." As thus amended the Constitution would, 
 of course, authorize a State to prohibit the liquor traffic 
 and impair contracts in reference to it, but the question 
 is, may a court so amend it by construction and interpre- 
 tation? That is the crucial question. But is it true that 
 a court does, in fact, ever venture to alter or amend the 
 Constitution by construction ? Let us see. 
 
 THE BAETEMEYER CASE. 
 
 In the case of Bartenieyer vs. Iowa (18 Wallace, 129), 
 the Supreme Court of the United States, Justice Miller 
 delivering the opinion, affirmed the judgment of the Su- 
 preme Court of Iowa, maintaining the constitutionality 
 of an act prohibiting the sale of liquor and sustaining a 
 conviction thereunder. The judgment was affirmed, how- 
 ever, on technical grounds, the court holding that the alle- 
 gation of ownership of the liquor, in the defendant's 
 p]ea (which "was all the evidence given") was insuffi- 
 cient. 
 
 In the course of the opinion the court goes on to say : 
 "But if it were true, and it was fairly presented to us, 
 that the defendant was the owner of the glass of intoxi- 
 cating liquor which he sold to Hickey, at the time that the 
 State of Iowa first imposed an absolute prohibition on the 
 sale of such liquors, then we concede that two very grave 
 questions would arise, namely: First, whether this would 
 be a statute depriving him of his property without due 
 process of law; and, secondly, whether, if it were so, it 
 would be so far a violation of the fourteenth amendment 
 in that regard as would call for judicial action 
 by this court." Here the court intimates that an 
 act prohibiting the sale of intoxicating liquors 
 might be inoperative as to sales made by per- 
 sons who were bona fide owners of the liquor 
 at the time the act was passed. In any event the court 
 "conceded" that, as to such persons, "two very grave 
 
 26 
 
questions would arise," questions which are referred to 
 elsewhere in the opinion as "of an importance to require 
 the most careful and serious consideration." But in point 
 of fact are there two questions] Does not the first question 
 cover the case? If the court finds that a statute deprives 
 persons of property without due process of law, is not 
 the court then bound by the supreme law of the land to 
 declare it unconstitutional"? Does the nature or value of 
 the property, or the occupation of the person, or the de- 
 sirability of the statute in question matter at all? Does 
 anything matter except the requirements of the Consti- 
 tution? Suppose the property be merely a glass of 
 whisky, or the person a saloon-keeper, what then? May 
 the court discriminate in respect to persons or property ? 
 Has it any discretionary power in the premises whatever? 
 If not, what does the second question really mean? Is 
 not the simple fact that a statute deprives persons of 
 property without due process of law sufficient in itself to 
 call for specific action— not judicial action in accordance 
 with the opinion the court may entertain respecting the 
 purpose or policy of the statute, but judicial action in ac- 
 cordance with the requirements of the Constitution ? 
 
 It is apparently assumed by the court that something 
 more than a violation of the constitutional requirement 
 is necessary to authorize, or at least to oblige, the court 
 io declare the statute unconstitutional. It is not chough., 
 in the opinion of the court, that a statute merely deprives 
 •a person of property without due process of law, though 
 by the express terms of the Constitution that is all- 
 sufficient. It must, in addition, it would seem, "be so far 
 a violation of the fourteenth amendment in that regard 
 as iuquM call for judicial action by tins court." Pre- 
 cisely what this means I cannot conceive; whether that it 
 is necessary that the statute should also be obnoxious in 
 other respects, or that extrinsic facts and circumstances 
 •may justify a departure from the plainly expressed mean- 
 ing of the Constitution. But whatever it mav mean, it 
 
clearly implies that, in the opinion of the court, 
 the statute would not "be so far a violation of the 
 fourteenth amendment" as to be declared unconstitu- 
 tional, solely for the reason that it deprives persons of 
 property without due process of law. But the Constitu- 
 tion assigns that circumstance as a sole and sufficient rea- 
 son for prohibiting such laws ; and independent of such 
 prohibition a statute which is so far a violation of com- 
 mon justice as to deprive persons of rights and property 
 without a lawful trial ought to be declared void as con- 
 travening the expressed purpose and fundamental princi- 
 ples of the Constitution. 
 
 But, as we see, the court is of the opinion that some- 
 thing more than a violation of the one requirement of 
 the Constitution — to observe due process of law in de- 
 priving persons of rights and property — is necessary to 
 constitute a peremptory call for judicial intervention. 
 What this something may be does not appear; but it is 
 evidently something not contemplated by the makers of 
 the Constitution, since it is neither expressly mentioned 
 nor necessarily implied. It is, however, probably nothing 
 more than the customary proviso which the courts, by 
 virtue of their power to construe and interpret the Con- 
 stitution, assume authority to append to all constitu- 
 tional restrictions on the legislative powers of the 
 States, thereby excepting from such restrictions all 
 statutes which may be deemed in the nature of police 
 regulations. 
 
 By this process of construction and by interpreting 
 "necessary police regulation" to embrace all legislation 
 which affects, directly or indirectly, the rights, property 
 or health of the people, constitutional limitations and re- 
 strictions are done away with, and the special purpose of 
 the people in placing checks upon the ill-considered or 
 arbitrary exercise of legislative power is defeated. And 
 so legislative grants of monopolies are upheld, as in the 
 Slaughter House cases; and laws abridging the rights, 
 
 28 
 
privileges and immunities of citizens of the United States, 
 laws depriving persons of liberty and property without 
 trial, and laws impairing the obligation of contracts, all 
 positively prohibited by the Constitution, are sustained 
 by reason of the paramount authority of the police power. 
 Mighty, indeed, is the police power, as evolved and con- 
 tinuously amplified by judicial construction ! 
 
 In the case under consideration the court says, in 
 reference to the alleged abridgment by the statute of the 
 privileges and immunities of citizens: "If, however, 
 such a proposition is seriously urged, we think that the 
 right to sell intoxicating liquors, so far as a right exists, 
 is not one of the rights growing out of citizenship of the 
 United States, and in this regard falls within the prin- 
 ciples laid down in the Slaughter House cases." That's 
 all. No intimation of the mental process by which the 
 court arrives at the conclusion that the right to sell liquor 
 is not a right incident to citizenship and which the States 
 are forbidden to abridge; no legal reason, or reason of 
 any kind, for distinguishing this right in that respect 
 from the right to sell other commodities; no fact or cir- 
 stance stated to show why this right is not, or should not 
 be, safeguarded by the Constitution and the laws the 
 same as other retained rights; nothing of the kind. 
 Merely the arbitrary assumption of the court that such 
 is the case. Stat pro ratione voluntas. And yet it is a 
 right which has been enjoyed by the American people and 
 their European ancestors from time immemorial, since 
 the memory of man runneth not to the contrary, and it, 
 is only reasonable to infer that, if they had intended that 
 the States should have the power to prohibit its enjoy- 
 ment, or to abridge in any way their ancient customs in 
 respect to it, they would have expressly granted and de- 
 fined that power in the Constitution. In the absence of 
 any express grant, or of any grant from which it may be 
 reasonably implied, the logical as well as the legal pre- 
 sumption is that they did not intend that the States should 
 possess the power. From our knowledge of the social 
 
customs which prevailed when the Constitution was es- 
 tablished we may safely assume that it would not have 
 been adopted by the Convention nor ratified by the people 
 if it had contained a clause vesting power in either the 
 State or the Federal Government to deprive the people of 
 "their lawful liberty" to use and traffic in alcoholic 
 liquor. From Washington down to the most obscure citi- 
 zen the people were in the habit of drinking wine or other 
 alcoholic liquor at their pleasure, and they would have 
 vigorously resented any attempted governmental inter- 
 ference with their time-honored custom in that respect as 
 a tyrannical invasion of their natural and inalienable 
 rights. No man, and especially no lawyer, of that day, 
 would have ventured to contend that government pos- 
 sessed, or ought to possess, the power to deny or abridge 
 the ordinary rights, privileges and immunities which the 
 people had freely enjoyed under the common law and 
 which were regarded as the usual and necessary attrib- 
 utes of liberty. The people, indeed, had just waged a 
 long and successful war "to establish justice and to se- 
 cure to themselves and their posterity the blessings of 
 liberty," and it is not to be supposed that they would 
 have tolerated a proposition to vest in any branch of 
 the government they were then founding absolute power, 
 or power to deprive citizens of life, liberty and property 
 in any way except by due "process of law and a verdict 
 of their peers in accordance with ancient customs. They 
 did not believe that government ought to possess such 
 potter, and they did not intend to grant it. 
 
 But if any doubt could have existed on this point pri >r 
 to the adoption of the Fourteenth Amendment, that 
 amendment removes it and makes it perfectly, clear that 
 no such power is lodged anywhere, even among the re- 
 served powers of the States, as those who contend for the 
 constitutionality of prohibitory liquor laws are obliged to 
 1 ;! nine. 
 
 That amendment, reaffirming the principle;? laid ^ ! 
 
 mm rMWRMBI 
 
in the original Constitution and in earlier amendments 
 and, perhaps, already sufficiently discussed, declares 
 
 that, " no State shall make or enforce any law 
 
 which shall abridge the privileges or immunities of citi- 
 zens of the United States; nor shall any State deprive 
 persons of life, liberty or property, without due process 
 of law, nor deny to any person within its jurisdiction 
 the equal protection of the laws." To the ordinary 
 American citizen, who is neither infected by the mania 
 for enforced total abstinence nor inspired by a passion 
 for unexpected and hair-splitting decisions, this is suffi- 
 ciently explicit. But, nevertheless, a court may hold that 
 the drinking, or buying, or selling of alcoholic liquors 
 is not one of the "privileges or immunities of citizens of 
 the United States ;" or that wine, or beer, or whisky, or a 
 brewery, or a distillery, or what you will, is not property; 
 or that "due process of law" does not mean due process 
 of law, but something entirely different; or that a liquor 
 dealer or any person who uses liquor, or is directly or in- 
 directly interested in its manufacture or sale, is not a 
 person entitled to "the equal protection of the laws," 
 and if the court happens to be the court of last resort, 
 Avhat are we going to do about it? That is the question. 
 AY hat does good citizenship require of us! To accept the 
 law as given by the court and obey it? That, of course — 
 so long as it continues to be the law. But are we to ab- 
 stain from criticism and agitation and abandon effort 
 and hope that it shall not continue to be the law? Does 
 good citizenship demand that a man shall hold his peace 
 when his reason, his conscience, his sense of right and 
 justice and his love of country urge him to protest? Does 
 a proper respect for the august tribunal, whose high pre- 
 rogative it is to construe the Constitution and the laws, 
 require the total abnegation of individual reason and 
 conviction? Are all its decisions inevitably right, and 
 dissenting opinions necessarily wrong? 
 
 31 
 
THE SLAUGHTER HOUSE CASES. 
 
 In the case cited the court refers us, for instance, to 
 "the principles laid down in the Slaughter House cases" 
 (16 Wallace, 36), as sufficient reason for excluding from 
 "the equal protection of the laws" the right to sell liquor 
 — ' ' so fas as such a right exists. ' ' 
 
 Well, those principles are such that Chief Justice 
 Chase, Justice Field, Justice Swayne and Justice Brad- 
 ley, all emphaticaly disavowed them and delivered, or 
 concurred in, radically dissenting opinions. The opinion 
 of the court was. .delivered by Justice Miller, with whom 
 concurred, Justices Clifford, Davis, Strong and Hunt, a 
 bare [majority of one. It is, perhaps, the most remark- 
 able opinio© ever delivered iby the court, i ■ '*•>'. 
 ' \v The. facts of the case, or rather, cases, for there were 
 several, are thus stated : 1 The Legislature of Louisiana 
 passed an act March 8., '1869',- granting to a corporation; 
 created ; by ify-thie' 'exclusive right f 04' twenty-five years to 
 have rand maintain' slaughter hou*se3, landings for", cattle 
 ahdymrds !foV> enclosing cattle, in the'parishes of Orleans,. 
 Jefferson arid'St^Benaatd^iirtlrat State, a'territdry 1 - safd 
 to contain 4 /ISfl fsqujiiare miles, including the" city of New 
 Orleans, and>a population pf b^tw^en -200,000 and 1 300,000 
 people.. The^ct prohibited all' other persons : fro!M builds 
 ing, keepingt or having slaughter 'ho uses, landings for cat- 
 tle and yfei'ds for cattle' intended for sale or slaughter 
 within those limits, and required -that all cattle' and other- 
 animals' intended for sad e 6r slaughter in: that i district 
 should be brougfet to : the- yarids and slaughter hduses> of 
 th»e 'oor^oration, and authorized the''corpora!tion to 'exact 
 certain. prescribed fees ;f or the use of its wharves and for 
 each -animal .landed, and certain prescribed fees for each 
 animal slaughtered, besides the head, feet, gore and en- 
 trails, except of swine!' 
 
 ' " One may- readily' imagine that 1 the granting' of 1 this 
 monopoly aroused- intense excitement and indignation 
 
among the cattle dealers, farmers, butchers and the peo- 
 ple generally, and that to them it must have appeared as 
 an unlawful and outrageous abuse of legislative power. 
 Imagine, then, their consternation and, for that matter, 
 the consternation of constitutional lawyers as well, when 
 the Supreme Court sustained the grant and declared it 
 to be a lawful exercise of the police power. Think of it. 
 That granting the exclusive privilege to carry on an ordi- 
 nary, business for profit is merely prescribing a reason-, 
 able and lawful police regulation ! Not lawful, it is true, 
 according to the . Constitution, for by granting to a 
 lavored individual or corporation the. exclusive privilege 
 to carry on a particular business the constitutional privil- 
 eges .and immunities of other citizens who are engaged in, 
 or may desire to engage in$ .that business are thereby 
 necessarily abridged ;,;but lawful because, in the opinion 
 of the court, the reSjer^ed powers - of the State arepara- 
 mpunt andjjin^re^pefititp those .powers, a, State,, like the 
 English, Parliament,, is supreme,- and therefore not sub- 
 ject to constitutional checks and limitations. 
 
 The; argument- of theocourt; it is perhaps superfluous 
 to state; is not -expressed in these, identical words, but 
 they reflect its true purport and effect. ■ It is impractica- 
 ble, with the space,. at my disposal, to present the argu- 
 ment in full, as in perfect fairness I should like to do. 
 Briefly, however, the whole argument in favor of prohib- 
 itory liquor laws may be adequately stated in syllogistic 
 form, as follows: 
 
 (1) A State has power to prescribe necessary police 
 regulations. 
 
 (2) The prohibition of the liquor traffic is a necessary 
 police regulation. 
 
 (3) A State has power to prohibit the liquor traffic. 
 Upon analysis it will be found that the argument in 
 
 support of the validity of these laws is completely ex- 
 pressed in the syllogism. And if the premises are true, 
 the conclusion logically follows. But the premises are not 
 
 33 
 
true. The major premise is defective because it does not 
 correctly affirm the power of a State. A State has power 
 only to prescribe such police regulations as do not conflict 
 with the provisions of the Constitution. 
 
 The minor premise begs the question and assumes, as 
 true, that which the experience of the civilized world 
 absolutely refutes, and reason declares is not true. 
 
 The premises, then, being false, it necessarily follows 
 that the conclusion deduced from them is also false. 
 Nevertheless the conclusion thus deduced is declared by 
 the Supreme Court of the United States to be the law of 
 the land. And, if "the principles laid down in the 
 Slaughter House cases" establish, or tend to establish, 
 anything, it is that no provision of the Federal Constitu- 
 tion can be construed to deny or disparage the absolute 
 supremacy of the police power ; and, further, that all laws 
 of a State which affect in any manner the comfort, health 
 or safety of the people, or their property, or their rights, 
 privileges and immunities are to be construed as legiti- 
 mate police regulations. 
 
 By such construction the rights, liberties, privileges 
 and immunities of the people are denied or abridged at 
 the will of Legislatures and city councils, in defiance of 
 constitutional guarantees that they are, and ever shall be, 
 inviolate. And so it comes about, to the bewilderment of 
 those who regard the Constitution as the supreme law 
 and believe that the people are of right entitled to all the 
 liberty it accords them, that laws or ordinances arbi- 
 trarily deny or abridge their rights and privileges, not 
 only in respect to their sports and pastimes, their feasts 
 and merry-makings, but even in respect to their custom- 
 ary vocations and their right to labor. For, if a State 
 may prohibit the people from engaging in the business of 
 slaughtering cattle and compel those who are engaged in 
 it to quit, it may also deny their right to engage in other 
 kinds of business. But even so, in equity and justice, and 
 
 34 
 
in accordance with the letter and spirit of the Constitu- 
 tion as well, the prohibition should be general and apply 
 to all persons alike, since it is the character of the busi- 
 ness and not the persons engaged in it that is supposed 
 to authorize and justify the State in declaring it unlaw- 
 ful. What kind of justice or law is that which permits a 
 privileged few to carry on a business, but denies the right 
 to all others, even though they are able and willing to 
 comply with the legally prescribed conditions and regula- 
 tions? Is the business more detrimental to the morals, 
 health or safety of the community when conducted by 
 Tweedledum than it is when conducted by Tweedledee, if 
 both conduct it in precisely the same manner and subject 
 to the same regulations? And, if the business is lawful 
 and permitted at all, is not the prescribing of regulations 
 applicable to both, and to all other persons who may en- 
 gage in it, the legitimate limit of the State's power to 
 regulate and control? If, under pretence of prescribing 
 police regulations, a State goes further than this and re- 
 stricts exclusively to certain individuals rights and privil- 
 eges which theretofore, by law and custom, had been 
 freely enjoyed by all the people, its action is not only 
 impolitic and unjust, but it is, or perhaps I should say, 
 since the court holds otherwise, it seems to be, a flagrant 
 violation of the constitutional provision that no State 
 shall "abridge the privileges or immunities of citizens of 
 the United States."' The court, however, holds that it is 
 not because the inhibition does not refer to the abridg- 
 ment by a State of the privileges and immunities of citi- 
 zens of that State, but only to the abridgment of the priv- 
 ileges and immunities of citizens of the United States. 
 
 CITIZENS OF THE SEVERAL STATES, AND CITIZENS OF THE 
 UNITED STATES. 
 
 In other words, the court holds that citizens of a par- 
 ticular State are not necessarily and for all purposes citi- 
 
 35 
 
1 
 
 zens of the United States and entitled to all the protec- 
 tion which the Constitution guarantees to "Citizens of 
 the United States." 
 
 This may appear startling, possibly incredible, to the 
 lay reader, and lest I be charged with misstating or evad- 
 ing the argument of the court, I give the exact words as 
 reported : 
 
 "The first section of the fourteenth article, to which 
 our attention is more specifically invited, opens with a 
 definition of citizenship — not only citizenship of the 
 United States, but citizenship of the States. 
 
 * ' No such definition was previously found in the Con- 
 stitution, nor held any attempt been made to define it by 
 Congress. 
 
 "It has been the occasion of much discussion in the 
 courts, by the executive department, and in the public- 
 journals. It has been said by eminent iudares that no 
 man was a citizen of the United States, except as he was 
 a citizen of one of the States composing the Union. 
 Those, therefore, who had been born and resided always 
 in the District of Columbia, and in the Territories, 
 though within the United States, were not citizens. 
 Whether this proposition was sound or not had never 
 been judicially decided. But it had been held by this 
 court, in the celebrated Dred Scott case, only a few 
 years before the outbreak of the Civil War, that a man 
 
 African descent, whether a slave or not, was not and 
 could not be a citizen of a State, or of the United States. 
 This decision, while it met the condemnation of some of 
 the ablest statesmen and constitutional lawyers of the 
 country, had never been overruled; and if it was to be 
 accepted as a constitutional limitation of the right of 
 citizenship, then all of the negro race who had been re- 
 cently made free men, were still not only not citizens, but 
 were incapable of becoming so by anything short of an 
 amendment to the Constitution. To remove this diffi- 
 culty primarily and to establish a clear and comprehen- 
 
 36 
 
 TT 
 
sive definition of citizenship which should declare what 
 should constitute citizenship of the United States, and 
 also citizenship of a State, the first clause of the section 
 was framed: 'All persons born or naturalized in the 
 United States and subject to the jurisdiction thereof, are 
 citizens of the United States and of the State wherein 
 they reside.' 
 
 "The first observation we have to make on this clause 
 is, that it puts to rest both the questions which we stated 
 to have been the subject of differences of opinion. It de- 
 clares that persons may be citizens of the United States 
 without regard to their citizenship of a particular State, 
 and it overturns the Dred Scott decision by making all- 
 persons born within the United States and subject to its 
 jurisdiction, citizens of the United States. That its main 
 purpose was to establish the citizenship of the negro can 
 admit of no doubt. The phrase, 'subject to its jurisdic- 
 tion' (sic) was intended to exclude from its operation 
 children of ministers, consuls and citizens or subjects of 
 foreign States, born within the United States. 
 
 "The next observation is more important in view of 
 the arguments of counsel in the present case. It is that 
 the distinction between citizenship of the United States 
 and citizenship of a State is clearly recognized and es- 
 tablished. Not only may a man be a citizen of the United 
 States without being a citizen of a State, but an important 
 element is necessary to convert the former into the latter. 
 He must reside within the State to make him a citizen of 
 it, but it is only necessary that he should be born or 
 naturalized in the United States to be a citizen of the 
 Union. 
 
 -'It is quite clear, then, that there is a citizenship of 
 the United States, and a citizenship of a State, which are 
 distinct from each other, and which depend on different 
 characteristics or circumstances in the individual. 
 
 "We think this distinction and its explicit recognition 
 IB this amendment of great weight in this argument, be- 
 
 37 
 
cause the next paragraph of this same section, which is 
 the one mainly relied on by the plaintiffs in error, speaks 
 only of privileges and immunities of citizens of the United 
 States, and does not speak of those of citizens of the sev- 
 eral States. The argument, however, in favor of the 
 plaintiffs rests wholly on the assumption that the citizen- 
 ship is the same, and the privileges and immunities guar- 
 anteed by the clause are the same. 
 
 "The language is, 'no State shall make or enforce any 
 laws which shall abridge the privileges and immunities 
 of citizens of the United States. ' It is a little remarkable, 
 if this clause was intended as a protection to the citizens 
 of a State against the legislative power of his own State, 
 that the word (words!) citizen of the State should be left 
 out when it is so carefully used, and used in contradis- 
 tinction to citizens of the United States, in the very sen- 
 tence which precedes it. It is too clear for argument 
 that the change in phraseology was adopted understand- 
 ing^ and with a purpose. 
 
 "Of the privileges and immunities of the citizen of 
 the United States, and of the privileges and immunities 
 of the citizen of the State, and what they respectively are, 
 we will presently consider; but we wish to state here that 
 it is only the former which are placed, by this clause, 
 under the protection of the Federal Constitution, and 
 that the latter, whatever they may be, are not intended to 
 have any additional protection by this paragraph of the 
 amendment. 
 
 "If, then, there is a difference between the privileges 
 and immunities belonging to a citizen of the United States 
 as such, and those belonging to a citizen of the State as 
 such, the latter must rest for their security and protec- 
 tion where they have heretofore rested ; for they are not 
 embraced by the paragraph of the amendment. ' ' 
 
 I give the argument in extenso for the reason stated, 
 and because the volume in which it is reported may not 
 be accessible to the general reader, who may be curious 
 
 38 
 
to know on what grounds the Supreme Court of the 
 United States holds that citizens of the several States are 
 not also and necessarily citizens of the United States, un- 
 der all circumstances and at all times. If the court is 
 right, then inhibition is absolutely meaningless, for if it 
 was not "intended as a protection to the citizen of a State 
 against the legislative power of his own State," for whose 
 protection was it intended? For the exclusive protection 
 of citizens of the Territories and other States? Their 
 privileges and immunities are sufficiently protected in the 
 several States by Clause 1, Section 2, Article IV., of the 
 Constitution: "The citizens of each State shall be en- 
 titled to all the privileges and immunities of citizens in 
 the several States. ' ' No reason is assigned, and none can 
 be imagined, for giving them additional protection, nor 
 for excluding from the protection guaranteed to all citi- 
 zens of the United States, the very citizens who would be 
 specially injured, by the inhibited act. 
 
 The conclusions drawn by the court from the wording 
 of the amendment in question and from the circumstances 
 which led to its adoption, not only do not logically fol- 
 low, but, if one may say so without disrespect, they ap- 
 pear to be irrelevant and inconsequential. 
 
 ' ' All persons born or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the 
 United States, and of the State wherein they reside." 
 The primary object of this declaration was, as all agree, 
 to define the status of the negro and prevent any State 
 from denying him citizenship. Not only was this the 
 primary object, but, I think, we are fully justified in as- 
 suming it was the only object, because, except for that 
 purpose, it was unnecessary. 
 
 To infer from the words used that a State may abridge 
 the privileges and immunities of its own citizens, but 
 may not abridge the privileges and immunities of citi- 
 zens of the United States, evinces a peculiar power or 
 process of deductive reasoning, or imputes to familiar 
 
words an esoteric significance strangely at variance with 
 their established meaning. Such an inference involves 
 ns in a maze of mystification and difficulties. What priv- 
 ileges and immunities and what citizens are referred to ? 
 What privileges and immunities appertain to citizens of 
 the United States that do not also appertain to citizens 
 of a State? No argument is necessary to prove "that 
 there is a citizenship of the United States and a citizen- 
 ship of a State." Every American knows that evident 
 fact, and he knows that all citizens of the United States 
 are not necessarily citizens of a State. Moreover, he also 
 knows, unless this decision has caused him to doubt, that 
 all citizens of a State are citizens of the United States, 
 and entitled to the privileges and immunities of citizens 
 of the United States. The conclusion to be drawn from 
 the language of the amendment, and the only conclusion 
 consistent with the accepted meaning of the words and 
 the usual rule of construction, is that the expression 
 ' ' citizens of the United States ' ' means all citizens of the 
 United States, including, of course, those of the State 
 which may have passed an inhibited act; and that the 
 phrase "privileges or immunities of citizens of the 
 United States" embraces all the privileges and immuni- 
 ties of such citizens and not merely those, whatever they 
 may be, which appertain to citizenship of the United 
 States in contradistinction to citizenship of the States. 
 And the reason that the amendment "speaks only of 
 privileges and immunities of citizens of the United States, 
 and does not speak of those of citizens of the several 
 States," is, apparently, because it was intended to apply 
 to the privileges and immunities common to all citizens 
 of the United States and not to the special privileges of 
 citizens of a States, such, for instance, as holding office 
 and voting at local elections. 
 
 If this is the case, and the amendment was intended 
 to, and does, in fact, forbid the abridgment of the cus- 
 tomary privileges and immunities of American citizens, 
 
 40 
 
 _* J» 
 
I i 
 
 as the language plainly indicates, the argument of the 
 court is unsound, the decision wrong and the principles 
 laid down inconsistent with the fundamental law of the 
 land. The legislative act which the court declared to be 
 in harmony with those principles, and therefore upheld, 
 is thus characterized by Justice Swayne in his dissent- 
 ing opinion: "A more flagrant and indefensible invasion 
 of the rights of many for the benefit of a few has not oc- 
 curred in the legislative history of the country." 
 
 And the true principles of law are recognized and fol- 
 lowed by Justice Field in his dissenting opinion: "The 
 State may prescribe such regulations for every pursuit 
 and calling of life as will promote the public health, se- 
 cure the good order and advance the general prosperity 
 of society, but when once prescribed, the pursuit or call- 
 ing must be free to be followed by every citizen who is 
 within the conditions designated, and will conform to the 
 regulations. This is the fundamental idea on which our 
 institutions rest, and unless adhered to in the legislation 
 of the country our government will be a Republic only 
 in name. 
 
 ' ' The Fourteenth Amendment, in my judgment, makes 
 it essential to the validity of the legislation of every State 
 that this equality of right should be respected. 
 
 "How widely this equality of right has been departed 
 from, how entirely rejected and trampled upon by the act 
 of Louisiana I have already shown. 
 
 ' ' And it is to me a matter of profound regret that its 
 validity is recognized by a majority of the court, for by it 
 the right of free labor, one of the most sacred and im- 
 prescriptible rights of man, is violated. 
 
 "As stated by the Supreme Court of Connecticut, in 
 the case cited, grants of exclusive privileges such as is 
 made by the act in question, are opposed to the whole 
 theory of free government, and it requires no aid from 
 any bill of rights to render them void. 
 
 "That only is a free government, in the American 
 
 41 
 
sense of the term, under which the inalienable right of 
 every citizen to pursue his happiness is unrestrained, 
 except by just, equal and impartial laws." 
 
 Verily these are the words of wisdom, and they em- 
 body the law of the case. Unhappily the majority of the 
 court could not, or did not, so regard them, and the result 
 is that the several States are permitted to abridge the 
 privileges and immunities of their respective citizens at 
 will, the Constitution of the United States to the con- 
 trary notwithstanding. But the words of the great judge 
 who stood for liberty and the Constitution are true never- 
 theless, and because they are true, in the end they will 
 prevail. 
 
 In the meantime the ''lawful liberty" of the people to 
 traffic in alcoholic liquors will continue to be "trampled 
 upon" by Legislatures and city councils, and denied by 
 the courts in conformity with the principles laid down in 
 this case. 
 
 In reference to the application of those principles to 
 prohibitory liquor laws the same distinguished jurist 
 thus expresses himself — I quote from his opinion in the 
 Bartemeyer case : "I accept the statement made, in the 
 opinion of the court, that the act of Iowa of 1860, to 
 which the plea of the defendant refers, was only a re- 
 vision of the act of 1851, and agree that, for this reason, 
 the averment of the ownership of the liquor sold prior to 
 the passage of the act of 1860, did not answer the charge 
 for which the defendant was prosecuted. I have no doubt 
 of the power of the State to regulate the sale of intoxi- 
 cating liquors when such, regulation does not amount to 
 the destruction of the right of property in them. The 
 right of property in an article involves the power to sell 
 and dispose of such article as ivell as to use and enjoy it. 
 Any act which declares that the owner shall neither sell 
 it nor dispose of it, nor use and enjoy it, confiscate it, 
 depriving him of his property ivithout due process 
 of law. Against such arbitrary legislation the Four- 
 
 42 
 
 W 
 
teenth Amendment affords protection. The prohibition 
 of sale in any way, or for any use, is quite a differ- 
 ent thing from a regulation of the sale or use so as to 
 protect the health and morals of the community. All 
 property, even the most harmless in its nature, is equally 
 subject to the power of the State in this respect with the 
 most noxious." 
 
 I have italicized these luminous words, pregnant with 
 reason and truth, because, in my judgment, they, rather 
 than the opinion of the court, lay down the true principle 
 of law, and the principle which the Constitution formally 
 declares shall control all legislation affecting the rights 
 or property of the people. 
 
 But is it not strange that any intelligent American 
 should doubt the intent or the power of the Constitution 
 to protect the property of American citizens from con- 
 fiiscation, or their rights and privileges from arbitrary 
 invasion? 
 
 If the American Constitution is powerless to protect 
 the people from such unjust and despotic abuse of gov- 
 ernmental authority, it is not a very wonderful or effect- 
 ive "Palladium of liberty" after all. We might as well 
 dispense with it altogether and vest absolute power in 
 State Legislatures. 
 
 But the intent of the Constitution to safeguard the 
 property of citizens from unlawful seizure and their 
 privileges and immunities from violation, such privileges 
 and immunities at least as citizens of all free govern- 
 ments are of right entitled to, is obvious. The power to 
 safeguard them, when the governmental agencies charged 
 with that responsibility disregard the expressed intent, 
 may not be so obvious. It is the power of public opinion, 
 always formidable, even when based on error or preju- 
 dice, and absolutely irresistible when consciously right 
 and just. It is not, I repeat, by virtue of any special 
 grant, or the tacit indulgence of government, that 
 American citizens are entitled to enjoy in peace and com- 
 
 43 
 
fort their glass of wine, or ale, or beer, or whisky, or 
 whatever their need or appetite may require; it is by 
 virtue of their inherent and inalienable right as free men 
 that distinctive right of liberty which permits free and 
 responsible men to regulate their conduct according to 
 their own will, so long as they do not thereby trespass 
 upon the equal rights of others, and as such right it is 
 protected and guaranteed to free American citizens by 
 the Constitution. 
 
 Let the people once know this, not suspect it or 
 merely believe it, but knoiv it, and they will soon cease to 
 be vexed and oppressed by these absurd and unjust laws. 
 For, after all is said, it is now rather the power of prece- 
 dent than the requirements of the Constitution that con- 
 strains our courts to uphold prohibitory liquor laws. The 
 court of last resort has decided that the States have con- 
 stitutional power to enact them, and though it may be 
 shown that the reasoning of the court is unsound, and the 
 decision wrong, still a decision is a decision, and must be 
 followed. The ethics of our jurisprudence, it seems, de- 
 mand it; the strict observance of established precedent, 
 being deemed of greater importance in the administra- 
 tion of justice, than the rectification of a wrong, or the 
 enforcement of a right. In other words, our courts seem 
 to think that it is better to be consistent, and uniformly 
 wrong, than to be inconsistent, and sometimes right. 
 
 Well, consistency as an abstract quality is all right, 
 perhaps, but as predictated of judicial decisions it is 
 good or bad as the decisions are right or wrong. And 
 respect for established precedents, and for juridical rules 
 and conventions is also well enough, but their authority 
 is subject always to the higher authority of the Consti- 
 tution and cannot be invoked to deprive the people of 
 rights and privileges which the Constitution declares 
 shall not be disparaged or denied. 
 
 Prohibitory liquor laws, as I think has Been clearly 
 shown, are of the nature of ex post facto laws; they im- 
 
 44' 
 
! ! 
 
 pair the obligation of contracts ; they abridge the privil- 
 eges and immunities of citizens, and they deprive persons 
 of rights and property without due process of law. 
 
 And being such laws, that is to say, of a kind which 
 the Constitution declares "no State shall pass," it was 
 error, in the first instance, to decide that a State has 
 power to pass and enforce them. The error is not recti- 
 fied, nor the evil resulting from it mitigated, by repeti- 
 tion. To adhere to the error and perpetuate the result- 
 ant evil, for any conceivable reason, is merely to magnify 
 the wrong. 
 
 To do so for the alleged reason that a decision once 
 rendered, though erroneous, settles the question involved 
 and definitely establishes the law is to ascribe to prece- 
 dent a grossly exaggerated power and importance. 
 
 No question is ever finally settled until it is settled 
 right, and no law which contravenes express provisions 
 of the Constitution and the fundamental principles of 
 justice can ultimately prevail as the established law of 
 this country. 
 
 If our courts, by reason of their subjection to prece- 
 dent, cannot, or will not, overrule a decision which con- 
 flicts with the Constitution and validates legislative acts 
 which are forbidden by the Constitution, the people are 
 indeed wronged, but they are not wholly without remedy, 
 for they elect the legislators. Let them elect as their 
 representatives in the Legislatures men of sufficient in- 
 formation to know the plain requirements of the Con- 
 stitution and of sufficient honesty to observe them, and 
 such laws will no longer travesty justice and shame our 
 pretensions to free and enlightened government. 
 
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