San Andreas independent., 1857-04-11
Important Decision.

preme Court, in the case of Billings u.s.
Hall. They are laid down by Justice
Burnett, in concurring with the able opin-
ion of Chief Justice Murray:
Billings u.s. HaH.-I concur with the
Chief Justice in the judgment rendered,
and in the general views expressed in the
opinion delivered. Asothe subject is one
of SO much interest and Importance, | had
intended giving a separate opinion but
the very full examination of my associate
renders this unnecessary. will, however,
submit the following positions, which I take
to be true in themselves
/. That government, with no limit
but its own discretion, is not a constitu-
tional government in the true sense of the
term.
2. That the end and object of creating
constitution, is to limit, classify and di
rect the powers of the different depart
ments
8. That constitution is solemn COM
pact, deliberately and freely entered into
by free people, as between themselves,
oy which they limit the powers of their
agents, the powers of majorities, and the
powers of themselves that this compact is
made IN odvonce, when men are more free
from passion or prejudice, when no one
can foresee whether he will fall with the
majority or with the minority, when there
is no interest to subserve but equal and
exact justice, and when the only object is
to lay down those fundamental and eternal
principles, under the practical application
of which every man may enjoy the rights
and privileges of human nature, and the
protection and happiness incident to soci-
city well regulated
4. That there are certain inherent and
inallenable rights of human nature that
no government can justly take away that
some OF these rights have been enumerated
IN our State Constitution and in the language
OF that instrument, this enumeration of
rights shall not be construed to impair or
deny others retained by the people,
3. That among the inalienable rights
declared by our Constitution as belonging
to each citizen, is the right of "acquirinq,
possessing and protecting property"
3. That this right of g protecting prop
erty" is not the simple right of protection
by individual physical force, but the right
toprotect 1t by the law of the land, and the
force of the body polite.
q That the question as to what consti-
tutes title to property must depend for
Its solution upon the lars as they cria at
the uery time achcn the right accrues.
8. That the citizen who obeys the laws
of to-day, and under their deliberate and
solemn sanction acquires a right to proper
ty, cannot be deprived of his property by
any retrospective act passed by the exist
ing law was already declared to be to-mor
row, reqniring him to pay for that which
is his own.
g. That if the Legislature could by such
retrospective Act divest rights already le-
gally and lawfully vested, there would be
no limit so far as this inalienable right is
concerned, but its own discretion.
10. That for the Constitution to odeclare
right inalienable, and at the same time
leave the Legislature unlimited power over
it, would be contradiction in terms, an
idle provision, proving that Constitution
was mere parchment barrier, insufficient
to protect the citizen, delusive and vision
airy, and the practical result of which would
be to destroy, not conserve, the rights it
vainly assumed to protect.
IL. That if the Legislature cannot di-
rectly take from the citizen that property
which the existing law declares to be his
and give 1T to another, then the law-mak-
ing power cannot accomplish the same
practical end by indirect means
II. That if this great right could be de-
feated simply by varying the form and
mere mode of arresting it, then our sys-
tenn would be idle and nugatory, impracti-
cable and unsafe, and wholly unworthy the
name of a statute system of Constitutional
law
13. That the right to regulate the mode
in which parties shall prosecute their rem
edies for redress of injuries Justly belongs
to the legislative department., but when
under the semblance'of change of rene
dy, substantial existing right is defeat
ed, impaired or abriged, the act is null and
void because it then ceases to regulate the
mere remedy, and impairs the real riqht.
IA. That if the law, as it exists today,
vests certain property in one citizen, and
the Legislature could tomorrow pass an
act depriving him of all remedy to " pro-
tect" that property, except by parting
with portion of the same then the Lee.
islature would have an equal right to say,
that party who is sued for his own prop
erty, shall not be allowed to plead his title
in defence of the action unless he will give
up a portion of his property to the plaintiff
for the legislature could equally deny the
right to the defendant as to the plaintiff in
such a case.
Is. That the Act of the LeoisIatnra re-