Page:The Green Bag (1889–1914), Volume 04.pdf/390

 John K. Porter. and the impression on me was as if this man had been a champion knight, challenging, in my interest, some abominable wrong-doer to mortal strife. The best argument of his earlier years is by some thought to have been made at the trial in Albany of William Landon, who was tried and acquitted July 21, 1855, on the charge of violating a prohibitory liquor law. "He dignified and elevated common dis putes, while never passing the boundary be tween pathos and bathos," says the "Albany Law Journal." The argument in Landon's case is a sample of this. He said, address ing the jury : — "The opinions just expressed by one of your number in the presence of the court, as well as the intimations of the bench during the progress of the trial, admonish me that I am entering on no ordinary task. Unless preconceived opinions can be removed by argument and authority, the defendant cannot expect the acquittal to which we believe him to be entitled. The fact is undis puted that on the 6th day of July he sold two glasses of brandy to Messrs. Johnson and Hast ings. Before he can be convicted, the question must be determined, either by you or by the court, whether this act was a crime. This is an inferior tribunal, in which the jury are the judges both of the law and of the fact. Two questions are in volved in the issue : First, whether the sale of imported liquor is prohibited by the Act. Second, Whether the prohibitory enactment is in conflict with the Constitution. Both are legal questions; one involving the construction and the other the validity of the law." The remarks immediately following indi cate that the trial was before a Justice of the Peace; that the jury were well-known tem perance men; and that Judge Porter relied upon their intelligence and sense of justice for a candid hearing. I select from a long argument the following : — "In the general view I am presenting of the scheme of legislation embodied in this law, and the practical effects it was designed to accom plish, it becomes necessary to allude to other considerations of a more public character. They 46

have an important bearing upon the rule of con struction to be applied, and a still more direct connection with the constitutional inquiry. It is never to be presumed that it was the design of the Legislature to inflict wanton injury upon large classes of citizens, and the language of statutes invading general rights is always to be restrained within the narrowest limits. And when a law is found to be subversive of the public interests at the same time that it injures the security and value of private property, it weakens the presumption in favor of its constitutionality. "The prohibitory act took effect on the 4th of July. It then first spoke the language of com mand. It found fifty millions of property in the form of spirituous liquor, in the hands of private citizens, purchased on the faith of pre-existing laws and constitutional guarantees, — property which had contributed to the taxes of the State and the national revenues, and which was bought, kept, and intended for sale as a bever age. According to the theory of the prosecution, all this the law intended to confiscate at a single blow and without compensation. It found a hun dred thousand citizens of the State engaged in various branches of business dependent on this department of commerce. All those who would not acquiesce in the destruction of their property it converted into criminals, and proposed to hunt down into the jails and penitentiaries. The Legis lature claimed for itself the omnipotence of par liament, and assumed to impose upon three mil lions of men an act of arbitrary, bold, and un limited dominion. It undertook to strike down in one day the business and the property of a hundred thousand citizens, not as a punishment for ante cedent crime, but on the pretext of private phi lanthropy and public necessity. But this was not a tithe of the mischief it contemplated. Like all despotic enactments, it anticipated resistance, and provided for subduing it by a systematic departure from the usual course of public justice, and by lopping away, one by one, the safeguards of the citizen. It invested inferior magistrates with un limited power over liberty and property. It cre ated a host of constructive crimes, and visited them with unheard-of penalties and confiscations. It reversed the rules of evidence, and made acts in themselves lawful presumptive evidence of crime. It deprived parties accused, in cases in volving alike their fortunes and their liberty, of