Wynehamer v People.pdf - The University of Texas at Austin

ALBANY, MARCH, 1856. 403Wynehamer against Thi People.And the precise and fatal difficulty in the argument is,that the only resemblance between the statutes referred to,and the one under consideration, is in the character of thepunishment. The prohibitions themselves are totally unlike,and relate mostly to different subjects. That the punishmentfor violating such prohibitions is similar, or even thesame, amounts to nothing, when the question is whetheithe prohibitions themselves, or any one of them, is constitutionalor valid. Take, for example, the instance of smuggling.No one doubts the power of congress to prohibitthe importation of goods without the payment of duties,nor, consequently, that the offender may be punished by aforfeiture of the goods, by pecuniary fine or by imprisonment.But whether the legislature of this state has the power toprohibit the keeping or sale of property in general, or anyparticular species, is the precise question now to be determined.When that is first established, then the owner whoviolates the prohibition may lose his property, or be fined,imprisoned, banished or put to death.It is certainly a simple proposition, that an admittedpublic offence against a constitutional statute may be punishedby loss of property, of money, of liberty or of life;but how this tends to show that another statute, prohibitingthings of a totally different character, and similar only inits sanction or penalty, is valid, and the offence itself constitutionallycreated, is what I have been unable to perceive.In a word, to trace an analogy between two statutesin the manner of enforcing them, or punishing the offender,does not advance a step toward proving that either the oneor the other is constitutional, or the contrary.The illustration from the statutes referred to, and allothers which can be referred to, fails for another reason ofgreat significance, which seems to have been overlooked bythose who assert the validity of the prohibitory law. It isan entire misconception of the law itself to say that thespecies of property to which it relates is forfeited hy a wola-