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law will give no remedy. This dread is born of experience.
The history of British investments in America is strewn with memories of swindles, for which the American Courts have been powerless to find redress. There are plenty of swindlers, in all truth, on this side the Atlantic, and an investor in a new company needs to be careful to whom he entrusts his money. But the investor on this side need be troubled with no apprehensions, that though the swindle be found out, the law will refuse to give him a remedy against it. The swindle may escape detection, the swindler may be unable to make good the loss; but it will not be the fault of the law if the wrong is not remedied. Now, why should it be otherwise in America? The Americans are of the same race, and their jurisprudence has the same traditions as our own.
One can well understand an old system, such as the Roman law was before Prætorean intervention, or such as our land system was forty years ago, being warped by restrictions and technicalities which often render it impossible for the Court to give a remedy against undoubted wrong. But it is astonishing that it should be so with a young jurisprudence like that of America, and that these cases of wrong, against which there is no legal remedy, should abound.—(Scottish Law Magazine.)
AMENDMENTS TO THE FEDERAL CONSTITUTION.
In former numbers of this magazine, [See Law Times for April and July], I have considered two of the amendments which were proposed in the 50th Congress; the Blair Amendment relating to public schools and to the teaching of the principles of the Christian religion, and the Springer Amendment relative to marriage and divorce. But these are not a tithe of the amendments which have been proposed. The adoption of them all would make a curious patch-quilt of the document framed by our fathers.
I will proceed to mention the other proposed amendments, briefly examining some of the more important. Their number will astonish those who have not kept themselves informed upon the subject.
PROHIBITION AMENDMENT PROPOSED BY SENATOR BLAIR OF NEW HAMPSHIRE. This is another of the schemes to change our form of government; and it requires not a very close scrutiny to see that it involves the most radical change of all.
In order to realize the radical character of the transformation in the frame-work of our government which would be effected by this amendment, it is only necessary to examine the decisions of the Supreme Court of the United States, and observe upon what ground the laws of the States prohibiting the manufacture and sale of intoxicating liquors, have been sustained by that high tribunal.
In Brown v. Maryland, 12 Wheaton 446, decided in 1827, Chief-Justice Marshall held that the importer of liquors upon which duties had been paid in accordance with an act of Congress, could not by a State law be subjected to a license for the privilege of selling them, so long as the liquors remained in the original casks or packages in which they had been imported; but after the package had been broken or after the first sale had been made, they became subject to tax or the owner subject to license under the State law.
Twenty years later, in 1847, the celebrated “License Cases" came before the Court. These were, Thurlow v. Massachusetts, Fletcher v. Rhode Island and Pierce v. New Hampshire; consisting of appeals taken by the first named parties respectively, who bad been convicted of selling without license, in their respective States. The cases were argued and decided together.
They were considered of great importance, and were argued exhaustively and with great ability. Chief-Justice Taney delivered the opinion, and the judgment was concurred in by all the judges, though they did not agree on all the points under discussion ; separate opinions being filed by Justices McLean, Catron, Daniel, Woodbury and Greer.
The State law was sustained in each case, on the broad ground that it was a legitimate exercise of the police power of the State.
“The license acts of Massachusetts,” said Justice McLean, “do not purport to be a regulation of commerce. They are essentially police laws. Enactments similar in principle are common to all the States.”—(5 Howard, U. S. Sup. Ct. Rep. p. 588.)
Again: “If the foreign article be injurious to the health and morals of the community, a State may, in the exercise of that great and conservative police power which lies at the foundation of its prosperity, prohibit the sale of it.”—(Ibid. p. 592.)
“I admit as inevitable,” said Justice Catron, in his separate opinion, “that if the State has the power of restraint by licenses to any extent, she has the discretionary power to judge of its limit, and may go to the length of prohibiting sales altogether, if such be her policy.”——(License Cases, 5 Howard, 610.)
See also opinion of Justice Woodbury in the same cases.
Speaking of the police powers of the States, he said: “The powers seem clearly to exist in the States, and ought to remain there.”—(Ibid. p. 630.)
The License cases had been so ably discussed, and so thoroughly considered by the Court, all the judges participating in the decision, that they were considered as settling the law upon the subject. It was not until 1873, that the question, in a somewhat different shape, came up again, in Bartemeyer v. Iowa, 18 Wallace, 132.
Justice Miller, giving the opinion of the Court in that case, said, that up to the time of the adoption of the 14th Amendment, the regulation, or even the total prohibition of the liquor traffic, had been considered as falling within the police regulations of the States, left to their judgment, and subject to no other limitations than such as were imposed by the State Constitution or by the general principles supposed to limit all legislative power.
“All rights are held subject to the police power of the State;" said Justice Bradley, in Beer Co. v. Massachusetts, 97 U. S. Sup. Ct. Rep. p. 32; (1887).
In the same case it was held, that “as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors, is not repugnant to any clause of the Constitution of the United States."-(97 U. S. 25, 33.):
We come now to the cases which have attracted so much attention of late years.
The first was Foster v. Kansas, decided in 1884. ChiefJustice Waite, giving the opinion of the Court, said:
"In Bartemeyer v, Iowa, 18 Wall. 129, it was decided that a State law prohibiting the manufacture and sale of intoxicating liquors, was not repugnant to the Constitution of the United States. This was re-affirmed in Beer Co. v. Massachusetts, 97 U. S. 25, and that question is now no longer open in this Court."-(112 U. S. Sup. Ct. Rep. 206.)
In this case, the Court affirmed the judgment of the State court, removing from office one Foster, who had neglected and
refused to prosecute persons who were guilty of selling intoxicating liquors in the county, in violation of a statute of the State known as the prohibitory liquor law.
In Mugler v. Kansas, 123 U. S. 666, decided in 1887, Justice Harlan, giving the decision of the Court, said: “The question now before us arises under what are, strictly, the police powers of the State, exerted for the protection of the bealth, morals and safety of the people. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated, in the other, unoffending property is taken away from an innocent man.”—(123 U. S. 668, 669.)
In Kidd y. Pearson, decided last year, the decision in Mugler v. Kansas was affirmed.-(128 U. S. 1.)
What is the police power of a State, which is so often referred to in these decisions?
“By public police and economy,” says Blackstone, “I mean the due regulation and domestic order of the kingdom, whereby the individuals of the State, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations."--(Black. Com. IV, p. 162.)
“The acknowledged police power of a State," said Justice McLean, in his opinion in the License Cases, "extends often to the destruction of property."-(5 How. 589.)
Justice Greer, in the same cases, speaking of the police
“Without attempting to define what are the peculiar subjects or limits of the power, it may safely be affirmed, that every law for the restraint or punishment of crime, for the preservation of the public peace, health and morals, must come within this category.”--(Ibid. p. 631.)
Such is the police power of a State. Now it is proposed that his power be surrendered and transferred to the general govern