The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-05-10
DECUIR vs.. THE GOV. ALLEN.
NO. III,

NO. III.
In my Last, we saw that the taking of pr-
vate property, even for public use, has
limits while depriving the owner Of it for
private purpose, is not within the scope
of public power. Rghtful power, and not
force, IS referred to. But let US come to
another point.
II. This legislation deprives person Of
his property (as well as liberty without
due process Of law"
The deprival of property in this case
consists in the use of superior authority,
backed by force, to cOnstrain me to yield to
another person, a use or enjoyment OF the
said property, incompatible with my own
and against my wish, and this is precisely
what the laws in question do.
In the proper conception of ownership is
included use, enjoyment, and right OF dis
pOsal, and these are unlimited, except as to
regulations which concern public order,
health and safety.
Let us look at some rudmental principles
to be found in the Civil Code, which con-
tans many truths, eternal and Interchangeable,
while, as an enactment, it Is under the
Constitution. 1t defines Ownership!
as follows: Ownership is the right by
which thing belongs to some one in par
ticuar, to the exclusion of all other PERSONS
fart. 4oO, and +" gives the right to enjoy and
dispose OF ones property, in the most un-
limited manner, provided it is not used in
way prohibited by laws and ordinances"
[4S3.
In Mackeldey's Civil Law, ! 285, the prin-
cple is more amply stated as follows
'Property is in it's nature an unrestricted
and exclusive right.
"A. "By virtue Of it's unrestrictedness,
the owner of thing is entitled to
dispose at will of the substance of the same,
and even to destroy it. Moreover, he can
transfer to another his property in it, either
wholly OF in part, or single rights contained
in the property, both inter rir0s and morris
causa. He has the right to possess the thing,
to enjoy it, to reap every kind Of fruit from
it, and to make every unforbidden use OF it
he chooses, even though another should
suffer injury in consequence.
"B. BY virtue Of the exclusiveness of his
right, he is entitled to prevent every other
person from using and enjoying the thing,
even though he himself should receive no
injury therefrom. He has also the right of
seif-defense, and is entitled even to destroy
the things of others when he has reason to
fear that they will cause the loss of his own,
or endanger his use of the same. Th5>ple-
sumption, therefore, is always in favor Of
this unrestrictedness and exClusiveness, or
freedom Of property" See also Blackstone
and Kent to the same effect.]
If then property, in its nature, is an un
restricted and exclusive right" the laws in
question are vain, migratory, and unworthy
of respect and obedience.
When am using my property or trade, in
business, if l am deprived, by legislation, Of
choice as to whom shall entertain, accom-
modate, allow in my premises, deal with, or
be patronized by, am necessarily deprived
pro tdntO of my property, without dIe pro-
cess Of law" Besides, if am not free to do
as will with my own, l am deprived, pro
tanto, of my liberty. Hence we see herein
a double violation of the great institute Of
freedom, found in the Federal Constitution
"No person shall b. deprived of life, liberty
or property, without due process Of law"
Nay, more; instead Of society having the
right to force upon me those when | regard
as intruders, one great motive in forming
society was protection of property against
them, SO that the member could have this
great means Of comfort and happiness all
to himself and family. Says Lieber (Pol.
Eth, sec. 16): property must be pro-
tected against intruders, as well as inva-
.ders; this leads men to live socially uni
ted"
Before concluding this article will hint
at cognate point, fundamental in its char
acter which strikes me as of great import
.ance, but which l must defer to the next
paper. 1t is that this legislation deter
mines class of questions, judicial in
nature, and is consequently usurpatory.
Where one attemps a private transaction
with another, involving pre-existent right
of the latter, or the use and enjoyment of
his property, and the latter refuses it, if
tho parties persist in their claims an
issue is made, which the courts must hear
and determine, and which the Legislature
has no right to anticipate and prevent by
enactment.
l have not concluded the point began
with, but, as prefer short articles, trust
the bar, whom hope to aid in their efforts
to defend sacred rights, and the people,
whose liberties are jeopardized, will Keep
hold of the thread
Respectfully, B. J. SAGE.