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    Supreme Court of California, Ex-Parte Newman

    By special request we reprint here the decision of the California Supreme Court, from which we have several times quoted in this review. It is well worthy of universal circulation and acceptance, as it is the only judicial decision ever rendered upon the question of Sunday observance that accords with the common principles of right or justice, with American principles as announced in the Declaration of Independence and the national and State Constitutions, or with Christian principles. Would that the principles of this masterly decision might become ingrained in the intellectual make-up of every person in the United States:—DPL 95.3

    Terry, C. J.—The petitioner was tried and convicted before a justice of the peace for a violation of the Act of April, 1858, entitled, “An Act for the Better Observance of the Sabbath,” and upon his failure to pay the fine imposed, was imprisoned.DPL 95.4

    The counsel for petitioner moves his discharge, on the ground that the Act under which these proceedings were had is in conflict with the first and fourth sections of the first Article of the State Constitution, and therefore void.DPL 95.5

    The first section declares, “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.”DPL 95.6

    The fourth section declares, “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State.”DPL 95.7

    The questions which arise in the consideration of the case, are:—DPL 95.8

    1. Does the act of the Legislature make a discrimination or preference favorable to one religious profession? or is it a mere civil rule of conduct?DPL 95.9

    [97]DPL 95.10

    2. Has the Legislature the power to enact a municipal regulation which enforces upon the citizen a compulsory abstinence from his ordinary lawful and peaceable avocations for one day in the week?DPL 98.1

    There is no expression in the Act under consideration which can lead to the conclusion that it was intended as a civil rule, as contradistinguished from a law for the benefit of religion. It is entitled, “An Act for the Better Observance of the Sabbath,” and the prohibitions in the body of the Act are confined to the “Christian Sabbath.”DPL 98.2

    It is, however, contended, on the authority of some of the decisions of other States, that notwithstanding the pointed language of the Act, it may be construed into a civil rule of action, and that the result would be the same, even if the language were essentially different.DPL 98.3

    The fault of this argument is that it is opposed to the universally admitted rule which requires a law to be construed according to the intention of the law-maker, and this intention to be gathered from the language of the law, according to its plain and common acceptation.DPL 98.4

    It is contended that a civil rule requiring the devotion of one seventh of the time to repose is an absolute necessity, and the want of it has been dilated upon as a great evil to society. But have the Legislature so considered it? Such an assumption is not warranted by anything contained in the Sunday law. On the contrary, the intention which pervades the whole Act is to enforce, as a religious institution, the observance of a day held sacred by the followers of one faith, and entirely disregarded by all the other denominations within the State. The whole scope of the Act is expressive of an intention on the part of the Legislature to require a periodical cessation from ordinary pursuits, not as a civil duty necessary for the repression of any existing evil, but in furtherance of the interests, and in aid of the devotions, of those who profess the Christian religion.DPL 98.5

    Several authorities, affirming the validity of similar statutes, have been cited from the reports of other States. While we entertain a profound respect for the courts of our sister States, we do not feel called upon to yield our convictions of right to a blind adherence to precedent; especially when they are, in our opinion, opposed to principle; and the reasoning by which they are endeavored to be supported is by no means satisfactory or convincing. In Bryan vs. Berry (6 Cal. 398), in reference to the decisions of other States, we said: “Decided cases are, in some sense, evidence of what the law is. We say in some sense, because it is not so much the decision as it is the reasoning upon which the decision is based, which makes it authority, and requires it to be respected.”DPL 98.6

    It will be unnecessary to examine all the cases cited by the district attorney. The leading cases in which the question is more elaborately discussed than in the others, are the cases of Specht vs. the Commonwealth (8 Barr, 313), and the City Council vs. Benjamin (2 Strob. 508), decided respectively by the Supreme Courts of Pennsylvania and South Carolina. These decisions are based upon the ground that the statutes requiring the observance of the Christian Sabbath established merely a civil rule, and make no discrimination or preference in favor of any religion. By an examination of these cases, it will be seen that the position taken rests in mere assertion, and that not a single argument is adduced to prove that a preference in favor of the Christian religion is not given by the law. In the case in 8 Barr, the Court said: “It [the law] intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; it pretends not to control or interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship.”DPL 98.7

    This is the substance of the arguments to show that these laws establish no preference. The last clause in the extract asserts the proposition broadly; but it is surely no legitimate conclusion from what precedes it, and must be taken as the plainest example of petitio principii. That which precedes it establishes that the law does not destroy religious toleration, but that is all.DPL 99.1

    Now, does our Constitution, when it forbids discrimination or preference in religion, mean merely to guarantee toleration? For that, in effect, is all which the cases cited seem to award, as the right of a citizen. In a community composed of persons of various religious denominations, having different days of worship, each considering his own as sacred from secular employment, all being equally considered and protected under the Constitution, a law is passed which in effect recognizes the sacred character of one of these days, by compelling all others to abstain from secular employment, which is precisely one of the modes in which its observance is manifested and required by the creed of that sect to which it belongs as a Sabbath. Is not this a discrimination in favor of the one? Does it require more than an appeal to one’s common sense to decide that this is a preference? And when the Jew or seventh-day Christian complains of this, is it any answer to say, Your conscience is not constrained, you are not compelled to worship or to perform religious rites on that day, nor forbidden to keep holy the day which you esteem as a Sabbath? We think not, however high the authority which decides otherwise.DPL 99.2

    When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense,-a complete separation between Church and State, and a perfect equality without distinction between all religious sects. “Our Government,” says Mr. Johnson, in his celebrated Sunday-mail report, “is a civil and not a religious institution; whatever may be the religious sentiments of citizens, and however variant, they are alike entitled to protection from the Government, so long as they do not invade the rights of others.” And again, dwelling upon the danger of applying the powers of government to the furtherance and support of sectarian objects, he remarks, in language which should not be forgotten, but which ought to be deeply impressed on the minds of all who desire to maintain the supremacy of our republican system: “Extensive religious combinations to effect a political object, are, in the opinion of the committee, always dangerous. The first effort of the kind calls for the establishment of a principle which would lay the foundation for dangerous innovation upon the spirit of the Constitution, and upon the religious rights of the citizen. If admitted, it may be justly apprehended that the future measures of the Government will be strangely marked, if not eventually controlled, by the same influence. All religious despotism commences by combination and influence; and when that influence begins to operate upon the political institutions of a country, the civil power soon bends under it, and the catastrophe of other nations furnishes an awful warning of the consequences.... What other nations call religious toleration, we call religious rights; they were not exercised in virtue of governmental indulgence, but as rights of which the Government cannot deprive any portion of her citizens, however small. Despotic power may invade those rights, but justice still confirms them. Let the national Legislature once perform an act which involves the decision of a religious controversy, and it will have passed its legitimate bounds. The precedent will then be established, and the foundation laid for that usurpation of the divine prerogative in this country, which has been the desolating scourge of the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion for enforcing religious observances.”DPL 99.3

    We come next to the question whether, considering the Sunday law as a civil regulation, it is in the power of the Legislature to enforce a compulsory abstinence from lawful and ordinary occupation for a given period of time, without some apparent civil necessity for such action; whether a pursuit, which is not only peaceable and lawful, but also praiseworthy and commendable for six days in the week, can be arbitrarily converted into a penal offense or misdemeanor on the seventh. As a general rule, it will be admitted that men have a natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others. When societies are formed, each individual surrenders certain rights, and as an equivalent for that surrender has secured to him the enjoyment of certain others, appertaining to his person and property, without the protection of which society cannot exist. All legislation is a restraint on individuals, but it is a restraint which must be submitted to by all who would enjoy the benefits derived from the institutions of society.DPL 100.1

    It is necessary, for the preservation of free institutions, that there should be some general and easily recognized rule, to determine the extent of governmental power, and establish a proper line of demarkation between such as are strictly legitimate and such as are usurpations which invade the reserved rights of the citizen, and infringe upon his constitutional liberty. The true rule of distinction would seem to be that which allows to the Legislature the right so to restrain each one in his freedom of conduct, as to secure perfect protection to all others from every species of danger to person, health, and property; that each individual shall be required so to use his own as not to inflict injury upon his neighbor; and these, we think, are all the immunities which can be justly claimed by one portion of society from another, under a government of constitutional limitation. For these reasons the law restrains the establishment of tanneries, slaughter-houses, gunpowder depots, the discharge of fire-arms, etc., in a city, the sale of drugs and poisons, and the practice of physic by incompetent persons, and makes a variety of other prohibitions, the reason and sense of which are obvious to the most common understanding.DPL 100.2

    Now, when we come to inquire what reason can be given for the claim of power to enact a Sunday law, we are told, looking at it in its purely civil aspect, that it is absolutely necessary for the benefit of his health and the restoration of his powers; and in aid of this great social necessity, the Legislature may, for the general convenience, set apart a particular day of rest, and require its observance by all.DPL 101.1

    This argument is founded on the assumption that mankind are in the habit of working too much, and thereby entailing evil upon society; and that, without compulsion, they will not seek the necessary repose which their exhausted natures demand. This is to us a new theory, and is contradicted by the history of the past and the observations of the present. We have heard, in all ages, of declamations and reproaches against the vice of indolence; but we have yet to learn that there has ever been any general complaint of an intemperate, vicious, unhealthy, or morbid industry. On the contrary, we know that mankind seek cessation from toil from the natural influences of self-preservation, in the same manner and as certainly as they seek slumber, relief from pain, or food to appease their hunger.DPL 101.2

    Again, it may be well considered that the amount of rest which would be required by one half of society may be widely disproportionate to that required by the other. It is a matter of which each individual must be permitted to judge for himself, according to his own instincts and necessities. As well might the Legislature fix the days and hours for work, and enforce their observance by an unbending rule which shall be visited alike upon the weak and strong. Whenever such attempts are made, the law-making power leaves its legitimate sphere, and makes an incursion into the realms of physiology; and its enactments, like the sumptuary laws of the ancients, which prescribe the mode and texture of people’s clothing, or similar laws which might prescribe and limit our food and drink, must be regarded as an invasion, without reason or necessity, of the natural rights of the citizen, which are guaranteed by the fundamental law.DPL 101.3

    The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers beyond the power of eradication; and in most of the States of our Confederacy, the aid of the law to enforce its observance has been given, under the pretense of a civil, municipal, or police regulation.DPL 102.1

    But it has been argued that this is a question exclusively for the Legislature; that the law-making power alone has the right to judge of the necessity and character of all police rules, and that there is no power in the judiciary to interfere with the exercise of this right.DPL 102.2

    One of the objects for which the judicial department is established is the protection of the constitutional rights of the citizen. The question presented in this case is not merely one of expediency or abuse of power; it is n question of usurpation of power. If the Legislature have the authority to appoint a time of compulsory rest, we would have no right to interfere with it, even if they required a cessation from toil for six days in the week instead of one. If they possess this power, it is without limit, and may extend to the prohibition of all occupations at all times.DPL 102.3

    While we concede to the Legislature all the supremacy to which it is entitled, we cannot yield to it the omnipotence which has been ascribed to the British Parliament, so long as we have a Constitution which limits its powers, and places certain innate rights of the citizen beyond its control.DPL 102.4

    It is said that the first section of Article first of the Constitution is a commonplace assertion of a general principle, and was not intended as a restriction upon the power of the Legislature. This court has not so considered it.DPL 102.5

    In Billings vs. Hall (7 Cal. 1), Chief Justice Murray says, in reference to this section of the Constitution: “This principle is as old as the Magna Charta. It lies at the foundation of every constitutional government, and is necessary to the existence of civil liberty and free institutions. It was not lightly incorporated into the Constitution of this State, as one of those political dogmas designed to tickle the popular ear, and conveying no substantial meaning or idea, but as one of those fundamental principles of enlightened government, without a rigorous observance of which there could be neither liberty nor safety to the citizen.”DPL 102.6

    In the same case, Mr. Justice Burnett asserted the following principles, which bear directly upon the question:—DPL 102.7

    “That among the inalienable rights declared by our Constitution as belonging to each citizen, is a right of ‘acquiring, possessing, and protecting property.’ ... ‘That for the Constitution to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, insufficient to protect the citizen, delusive, and visionary, and the practical result of which would be to destroy, not conserve, the rights it vainly assumed to protect.’”DPL 102.8

    Upon this point I dissent from the opinion of the court in Billings vs. Hall, and if I considered the question an open one, I might yet doubt its correctness, but the doctrine announced in that opinion having received the sanction of the majority of the court, has become the rule of decision, and it is the duty of the court to see it is uniformly enforced, and that its application is not confined to a particular class of cases.DPL 103.1

    It is the settled doctrine of this court to enforce every provision of the Constitution in favor of the rights reserved to the citizens against a usurpation of power in any question whatsoever; and although in a doubtful case we would yield to the authority of the Legislature, yet upon the question before us we are constrained to declare that, in our opinion, the Act in question is in conflict with the first section of Article first of the Constitution, because, without necessity, it infringes upon the liberty of the citizen, by restraining his right to acquire property.DPL 103.2

    And that it is in conflict with the fourth section of the same article because it was intended as, and is in effect, a discrimination in favor of one religious profession, and gives it a preference over all others.DPL 103.3

    It follows that the petitioner was improperly convicted, and it is ordered that he be discharged from custody.DPL 103.4

    Burnett, J.—The great importance of the constitutional principle involved, and the different view I take of some points, make it proper for me to submit a separate opinion. The question is one of no ordinary magnitude, and of great intrinsic difficulty. The embarrassment we might otherwise experience in deciding a question of such interest to the community, and in reference to which there exists so great a difference of opinion, is increased by the consideration that the weight of the adjudged cases is against the conclusion at which we have been compelled to arrive.DPL 103.5

    In considering this constitutional question it must be conceded that there are some great leading principles of justice, eternal and unchangeable, that are applicable at all times and under all circumstances. It is upon this basis that all Constitutions of free government must rest. A Constitution that admits that there are any inalienable rights of human nature reserved to the individual, and not ceded to society, must, of logical necessity, concede the truth of this position. But it is equally true that there are other principles, the application of which may be justly modified by circumstances.DPL 103.6

    It would seem to be true that exact justice is only an exact conformity to some law. Without law there could be neither merit nor demerit, justice nor injustice; and when we come to decide the question whether a given act be just or unjust, we must keep in our view that system of law by which we judge it. As judged by one code of law, the act may be innocent; while as judged by another, it may be criminal. As judged by the system of abstract justice (which is only that code of law which springs from the natural relation and fitness of things), there must be certain inherent and inalienable rights of human nature that no government can rightfully take away. These rights are retained by the individual because their surrender is not required by the good of the whole. The just and legitimate ends of civil government can be practically and efficiently accomplished whilst these rights are retained by the individual. Every person, upon entering into a state of society, only surrenders so much of his individual rights as may be necessary to secure the substantial happiness of the community. Whatever is not necessary to attain this end is reserved to himself.DPL 103.7

    But, conceding the entire correctness of these views, it must be equally clear that the original and primary jurisdiction to determine the question what are these inalienable rights, must exist somewhere; and wherever placed, its exercise must be conclusive, in the contemplation of the theory, upon all.DPL 104.1

    The power to decide what individual right must be conceded to society, originally existed in the sovereign people who made the Constitution. As they possessed this primary and original jurisdiction, their action must be final. If they exercised this power, in whole or in part, in the formation of the Constitution, their action, so far, is conclusive.DPL 104.2

    It must also be conceded that this power, from its very nature, must be legislative and not judicial. The question is simply one of necessity-of abstract justice. It is a question that naturally enters into the mind of the law-maker, not into that of the law-expounder. The judicial power, from the nature of its functions, cannot determine such a question. Judicial justice is but conformity to the law as already made.DPL 104.3

    If these views be correct, the judicial department cannot, in any case, go behind the Constitution, and by any original standard judge the justice or legality of any single one or more of its provisions. The judiciary is but the creature of the Constitution, and cannot judge its creator. It cannot rise above the source of its own existence. If it could do this, it could annul the Constitution, instead of simply declaring what it means. And the same may be said of any act of the Legislature, if within the limits of its discretion as defined by the Constitution. Such an act of the Legislature is as much beyond the reach of the judiciary as is the Constitution itself. (1 Bald. 74; 1 Brock. 203; 10 Pet. 478; 5 Geo. 194.)DPL 104.4

    But it is the right and imperative duty of this court to construe the Constitution and statutes in the last resort, and from that construction, to ascertain the will of the law-maker. And the only legitimate purpose for which a court can resort to the principles of abstract justice, is to ascertain the proper construction of the law in cases of doubt. When, in the opinion of the court, a given construction is clearly contrary to the manifest principles of justice, then it will be presumed, is a case not free from doubt that the Legislature never intended such a consequence. (Varick vs. Briggs, 6 Paige, 330; Flint River Steamboat Company vs. Foster. 5 Geo. 194.) But when the intention is clear, however unjust and absurd the consequences may be, it must prevail, unless it contravenes a constitutional provision.DPL 104.5

    If these views be correct, it follows that there can be for this court no higher law than the Constitution; and in determining this question of constitutional construction, we must forget, as far as in us lies, that we are religious or irreligious men. It is solely a matter of construction, with which our individual feelings, prejudices, or opinions upon abstract questions of justice can have nothing to do. The Constitution may have been unwisely framed. It may have given too much or too little power to the Legislature. But these are questions for the statesman, not for the jurist. Courts are bound by the law as it is.DPL 105.1

    The British Constitution differs from our American Constitution in one great leading feature. It only classifies and distributes, but does not limit the powers of government; while our Constitutions do both. It is believed that this difference has been sometimes overlooked by our courts in considering constitutional questions; and English authorities followed in cases to which they could not be properly applied. We often meet with the expression that Christianity is a part of the common law. Conceding that this is true, it is not perceived how it can influence the decision of a constitutional question. The Constitution of this State will not tolerate any discrimination or preference in favor of any religion; and so far as the common law conflicts with this provision, it must yield to the Constitution. Our constitutional theory regards all religions, as such, equally entitled to protection, and all equally unentitled to any preference. Before the Constitution they are all equal. In so far as the principles found in all, or in any one or more of the different religious systems, are considered applicable to the ends legitimately contemplated by civil constitutional government, they can be embodied in our laws and enforced. But when there is no ground or necessity upon which a principle can rest, but a religious one, then the Constitution steps in, and says that you shall not enforce it by authority of law.DPL 105.2

    The Constitution says that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State.”DPL 105.3

    If we give this language a mere literal construction, we must conclude that the protection given is only intended for the professor, and not for him who does not worship. “The free exercise and enjoyment of religious profession and worship,” is the thing expressly protected by the Constitution. But taking the whole section together, it is clear that the scope and purpose of the Constitution was to assert the great, broad principle of religious freedom for all-for the believer and the unbeliever. The Government has no more power to punish a citizen when he professes no religion, than it has to punish him when he professes any particular religion.DPL 105.4

    The Act of the Legislature under consideration violates this section of the Constitution, because it establishes a compulsory religious observance; and not, as I conceive, because it makes a discrimination between different systems of religion. If it be true that the Constitution intended to secure entire religious freedom to all, without regard to the fact whether they were believers or unbelievers, then it follows that the Legislature could not create and enforce any merely religious observance whatever. It was the purpose of the Constitution to establish a permanent principle, applicable at all times, under all circumstances, and to all persons. If all the people of the State had been unbelievers, the Act would have been subject to the same objection. So, if they had been all Christians, the power of the Legislature to pass the Act would equally have been wanting. The will of the whole people has been expressed through the Constitution; and until his expression of their will has been changed in some authoritative form, it must prevail with all the departments of the State Government. The Constitution, from its very nature as a permanent, organic Act, could not shape its provisions so as to meet the changing views of individuals. Had the Act made Monday, instead of Sunday, a day of compulsory rest, the constitutional question would have been the same. The fact that the Christian voluntarily keeps holy the first day of the week, does not authorize the Legislature to make that observance compulsory. The Legislature cannot compel the citizen to do that which the Constitution leaves him free to do or omit, at his election. The Act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object, when the Legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the Act of the Legislature compels us to do that which we wish to do or not to do.DPL 106.1

    The compulsory power does not exist in either case. If the Legislature has power over the subject, this power exists without regard to the particular views of the individuals. The sole inquiry with us is whether the Legislature can create a day of compulsory rest. If the Legislature has the power, then it has the right to select the particular day. It could not well do otherwise.DPL 106.2

    The protection of the Constitution extends to every individual, or to none. It is the individual that is intended to be protected. The principle is the same, whether the many or the few are concerned. The Constitution did not mean to inquire how many or how few would profess or not profess this or that particular religion. If there be but a single individual in the State who professes a particular faith, he is as much within the sacred protection of the Constitution as if he agreed with the great majority of his fellow-citizens. We cannot, therefore, inquire into the particular views of the petitioner, or of any other individual. We are not bound to take judicial notice of such matters, and they are not matters of proof. There may be individuals in the State that hold Monday as a Sabbath. If there be none such now, there may be in the future. And if the unconstitutionality of an Act of this character depended, in any manner, upon the fact that a particular day of the week was selected, then it follows that any individual could defeat the Act by professing to hold the day specified as his Sabbath. The Constitution protects the freedom of religious profession and worship, without regard to the sincerity or insincerity of the worshiper. We could not inquire into the fact whether the individual professing to hold a particular day as his Sabbath was sincere or otherwise. He has the right to profess and worship as he pleases, without having his motives inquired into. His motives in exercising a constitutional privilege are matters too sacred to be submitted to judicial scrutiny. Every citizen has the undoubted right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State.DPL 106.3

    Under the Constitution of this State, the Legislature cannot pass any Act, the legitimate effect of which is, forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance, the Act is unconstitutional.DPL 107.1

    In considering the question whether the Act can be sustained upon the ground that it is a mere municipal regulation, the inquiry as to the reasons which operated upon the minds of members in voting for the measure is, as I conceive, wholly immaterial. The constitutional question is a naked question of legislative power. Had the Legislature the power to do the particular thing done? What was that particular thing? It was the prohibition of labor on Sunday. Had the Act been so framed as to show that it was intended by those who voted for it, as simply a municipal regulation; yet, if, in fact, it contravened the provision of the Constitution securing religious freedom to all, we should have been compelled to declare it unconstitutional for that reason. So, the fact that the Act is so framed as to show that a different reason operated upon the minds of those who voted for it, will not prevent us from sustaining the Act, if any portion of the Constitution conferred the power to pass it upon the Legislature.DPL 107.2

    Where the power exists to do a particular thing, and the thing is done, the reason which induced the act is not to be inquired into by the courts. The power may be abused; but the abuse of the power cannot be avoided by the judiciary. A court may give a wrong reason for a proper judgment; still the judgment must stand. The members of the Legislature may vote for a particular measure from erroneous or improper motives. The only question with the courts is, whether that body had the power to command the particular Act to be done or omitted. The view here advanced, is sustained substantially by the decision in the case of Fletcher vs. Peck (6 Cranch, 131).DPL 107.3

    It was urged, in argument, that the provision of the first section of the first Article of the Constitution, asserting the “inalienable right of acquiring, possessing, and protecting property,” was only the statement in general terms, on a general principle, not capable in its nature of being judicially enforced.DPL 108.1

    It will be observed that the first Article contains a declaration of rights, and if the first section of that Article asserts a principle not susceptible of practical application, then it may admit of a question whether any principle asserted in this declaration of rights can be the subject of judicial enforcement. But that at least a portion of the general principles asserted in that Article can be enforced by judicial determination, must be conceded. This has been held at all times, by all the courts, so far as I am informed.DPL 108.2

    The provisions of the sixteenth section of the first Article, which prohibits the Legislature from passing any law impairing the obligation of contracts, is based essentially upon the same ground as the first section, which asserts the right to acquire, possess, and defend property. The right substantially secured by both sections is the right of property. This right of property is the substantial basis upon which the provisions of both sections must rest. The reason of, and the end to be accomplished by, each section, are the same. The debtor has received property or other valuable consideration for the sum he owes the creditor, and the sum, when collected by the creditor, becomes his property. The right of the creditor to collect from the debtor that which is due, is essentially a right of property. It is the right to obtain from the debtor property which is unjustly detained from the creditor.DPL 108.3

    If we take the position to be true, for the sake of the argument, that the right of property cannot be enforced by the courts against an Act of the Legislature, we then concede a power that renders the restrictions of other sections inoperative. For example, if the Legislature has the power to take the property of one citizen and give it to another without compensation, the prohibition to pass any law impairing the obligation of contracts could readily be avoided. All the Legislature would have to do to accomplish this purpose, would be to allow the creditor first to collect his debt, and afterward take the property of the creditor and give it to the debtor. For if we once concede the power of the Legislature to take the property of A and give it to B, without compensation, we must concede to that body the exclusive right to judge when, and in what instances, this conceded right should be exercised.DPL 108.4

    It was also insisted, in argument, that the judicial enforcement of the right of property, as asserted in the first section, is inconsistent with the power of compulsory process, to enforce the collection of debts by the seizure and sale of the property of the debtor. But is this true? On the contrary, is not the power to seize and sell the property of the debtor expressly given by the Constitution for the very purpose of protecting and enforcing this right of property? When the Constitution says that you shall not impair the obligation of the contract, it says in direct effect that you shall enforce it; and the only means to do this efficiently is by a seizure and sale. The seizure and sale of the property of the debtor was contemplated by the Constitution, as being a part of the contract itself. The debtor stipulates in the contract, that, in case he fails to pay, the creditor may seize and sell his property by legal process. Such is the legal effect of the contract, because the existing law enters into and forms a part of it.DPL 108.5

    The different provisions of the Constitution will be found, when fairly and justly considered, to be harmonious and mutually dependent one upon the other. A general principle may be asserted in one section without any specification of the exceptions in that place. But it must be evident that practical convenience and logical arrangement will not always permit the exceptions to be stated in the same section. It is a matter of no importance in what part of the Constitution the exception may be found. Wherever found, it must be taken from the general rule, leaving the remainder of the rule to stand. The general right of enjoying and defending life and liberty is asserted in the first section of the first Article; while the exceptions are stated in the eighth, ninth, fifteenth, and eighteenth sections of the same Article. A party may, by express provisions of the Constitution, forfeit his liberty. The same remark in reference to exceptions to general principles, will apply to other provisions.DPL 109.1

    The right to protect and possess property is not more clearly protected by the Constitution than the right to acquire. The right to acquire must include the right to use the proper means to attain the end. The right itself would be impotent without the power to use its necessary incidents. The Legislature, therefore, cannot prohibit the proper use of the means of acquiring property, except the peace and safety of the State require it. And in reference to this point, I adopt the reasons given by the Chief Justice, and concur in the views expressed by him.DPL 109.2

    There are certain classes of subjects over which the Legislature possesses a wide discretion; but still this discretion is confined within certain limits; and although, from the complex nature of the subject, these limits cannot always be definitely settled in advance, they do and must exist. It was long held, in general terms, that the Legislature had the power to regulate the remedy; but cases soon arose where the courts were compelled to interpose. In the case of Bronson vs. Kenzie (1 How. 311), Chief Justice Taney uses this clear language:—DPL 109.3

    “It is difficult, perhaps, to draw a line that would be applicable in all cases, between legitimate alterations of the remedy and provisions which in the form of remedy impair the right; but it is manifest that the obligation of the contract may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by hampering the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing.”DPL 109.4

    So, the power of the Legislature to pass Recording Acts and Statutes of Limitations is conceded, in general terms, and a wide discretion given. Yet, in reference to these powers, Mr. Justice Baldwin, in delivering the opinion of the Supreme Court of the United States, in the case of Jackson vs. Lamphine (3 Pet. 289), uses this language:—DPL 110.1

    “Cases may occur where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of the right and call for the interposition of the court.”DPL 110.2

    The Legislature is vested by the Constitution with a wide discretion in determining what is necessary to the peace and safety of the State; yet this discretion has some limits. It may be difficult, in many cases, to define these limits with exact precision; but this difficulty cannot show that there are no limits. Such difficulties must arise under every system of limited government.DPL 110.3

    The question arising under this Act is quite distinguishable from the case where the Legislature of a State in which slavery is tolerated, passes an Act for the protection of the slave against the inhumanity of the master in not allowing sufficient rest. In this State, every man is a free agent, competent and able to protect himself, and no one is bound by law to labor for any particular person. Free agents must be left free, as to themselves. Had the Act under consideration been confined to infants or persons bound by law to obey others, then the question presented would have been very different. But if we cannot trust agents to regulate their own labor, its times and quantity, it is difficult to trust them to make their own contracts. If the Legislature could prescribe the days of rest for them, then it would seem that the same power could prescribe the hours to work, rest, and eat.DPL 110.4

    For these reasons, I concur with the Chief Justice in discharging the petitioner.DPL 110.5

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