The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1874-05-17
DECUIR vs., THE GOV. ALLEN.


NO. w.
We have seen that where legislation in
any degree prevents the use, enjoyment, OF
disposal Of what a person owns, it deprlves
him, in so far, of his property Gas well as
liberty, without due process of law"
We have seen also that the right of prop
erty ranks with life and liberty as the gift
of Heaven to man, and is original, inherent,
inalienable, and indefeasible, while it is pre-
existant to society, and above its power.
But no matter if the right be as slight in
consequence as it is really Indispensable to
to mau's existence and happiness, the owners
exclusive use, enjoyment, and disposal OF it,
are beyond legislative power, except as to
the eminent domain given to society by its
members. Many authorities could be here
cited, but the following will suffice:
The Legislature of New York thought pro-
per to provide for establishing private roads
on other mems land. In deciding a case
arising under the law, the Supreme Court
of New York said of the phrase: "No men,
Der of this State shall be deprived of any of
tina rights or privileges of a citizen OF this
State, unless by the law Of the land" that
this " does not mean statute passed for the
purpose of working the wrong" That would
make the constitution mere nonsense" as
any of the rights or privileges Of a citizen,
unless you pass statute for that purpose.
In other words, you shall not de a wrong
unless you choose to do it. The meaning OF
the section is, that no member of the State
shall be deprived of any of his rights or
privileges unless the matter shall be adj
judged against him upon trial 1t must be
ascertained judicially that he has forfeited
his privileges, or that some one else has a
superior title to the property he possesses
before either of them can be taken from him.
IAcannot be done by mere legislation"
In the same case it was said as to the
phrase educ process of law" ut cannot
mean less than prosecution or suit, insti-
tuted and conducted according to the pre-
scribed forms and solemnities for ascertain
ing guilt or determining the title to property
The same measure Ofprotection against legis-
tive encroachmentis extended to life, liberty
and property and if the latter can be taken
without forensic trial and Judgment, there
is no security for the others. If the Legis-
lature can take the propertyof A and transfer
it to B, they can take A himself, and either
shut him up in prison or put him to death.
But noue of these things can be done by
mere legislation. There must be due pro-
cess of law."--Taylor VS.. Porter, Hill, 140.
We here see that the right of property
10 lCCOSI DIS VI IHACACHt3 CHudI W
life and liberty, and beyond the touch OF
legislative power, except as to eminent do
main.
To make more apparent the enOrmity of
the crime these innovating usurpers have
attempted, let us see what the great pub
licists and philosophers of the world say as
to the essential character and preciousness
of this right. Says Blackstone: "There is
nothing which SO generally strikes the
imagination and engages the affections OF
mankind as the right of preperty.or that
sole and despotic dominion which one man
claims and exercises over the external
things of the world, in total exclusion of
the right of any other individual in the
universe" cit consists in the
free use, enjoyment and disposal of all a
PERSONS acquisitions, without any control
or diminution, save only by the laws Of the
land" 2 Black. Com. 9; Id. 1870; see
also Kent, 1863; Vattel, us; Ruth. Inst.
Says Sir James Macintosh " Property
is the nourisher of mankind, incentive of
industry, and cement of human society,"
Dr. Lieber says: 6" 1t is natural to man,
connected with the inmost principles of his
soul. and necessary for him as a social be-
ing"
Before this attempted usurpation, all own
ers were free to order persons--no matter
how they looked-from their houses and
lands; forbid their using, enjoying, handling
or even touching any of their property, OF
decline to do any business with, or even
speak to them. Aud the unquestionabie
principle even now is, that the slightest
touch Of my property, or footstep on my
premises, if against my will, is an invasion
of my rights, an intrusion, trespass, or
pro tanto, deprival of my property; and if
the laws do not protect me, IL is wrong
without remedy.
And this brings us to the point hereto
fore alluded to as cognate to the one under
discussion, viz: that this legislation not only
deprives the owner of the use, enjoyment
and disposal of his property, without due
process of law" but it actually prohibits his
being heard in court on his opposition to
the Negroes use and enjoyment of the said
property.
In the legislative determination of these
judicial questions, we find one of the first
principles Of institutional government
violated. Legislative, executive and ju-
dicial authority are distinct, and entirely
independent. Not only are they recognized
to be so in all our constitutions, including
the Federal one, but we find, either in the
frames Of government, or the bills of
rights, such declarations by original SOW
ereign power, as the following: That these
three organs, through which sovereign au-
thority is to be manifested, "s shall DE dis
tinct, and shall be confded," each "to a
separate body Of magistracy; and no person,
or collection of persons, being one of those
shall exercise any power
properly attached to either of the Others"
See constitutions of Massachusetts, Georgia,
and old Constitution of Louisiana.
These departments are coordinate, entire
ly separate, and absolutely independent
They balance one another and are intended
to be potent checks to save from usurpation
the rights and liberties of the people. Being
coordinate, they cannot control or use the
powers of one another. This is, in large
part, our "system of checks and balances"
that SO many talk of, without seeming to
appreciate.
And the function of society's judiciary is
not only to pass upon issues, presented by
of society, (for that is the oblga
ton of the social compact but it is to deter
mine when either of the other departments
usurps, and, virtually, to apply the Veto