Newspaper Page Text
J. P. SAWTELL,] IH. H. JONES,
Proprio tor«.
TERMS OF SUBSCRIPTION!
Three nioetlis $1 00
Six nonlhs »8 00
On.year ..$3 00
Inr.ri.bly In aovxxcb.
Vol. I,
Oul hbort, Georgia, Friday, A-Ugust 2, .1867.
No. 40.
DECISION OF JUDGE CLARKE,!
STAY TL.-A.'W.
At.KZlNPKU IL UgMUtT,
VS.
the promisor is unitor tiipnil, ho in nut under It
gal obligation to lulfllh that clu* of undertak
ings. litre tlic djhUUclim between the legal and
mural old (gift inn oficontrurta is mnnll'cM. The
true ilfffi’raJgafl^Sveeti them th tlmt iht tthe nadt
the funner, and not villi the lath r.
4fl|j ho^Wfinthi' lows exact, however, they exact,
'’ through enforcing iiuminiciilalitlrs, whereby
|M'i>alti(‘H orb arimlnfetorrd for dlwrisdictier. or
at May Term, 1mI7» j tlmt ia done*, through force, by the officers of the
of Randolph Suport- j (’oremmeut. which the party contracting was
j or Court, lietore the bound, but telti*©* to do. 8m?lt instrumental!-
Treepass.
Argmnl .ml deter
mined on Demurrer,
Joux McK. Ginn.
i Hon. John T. Ulnrke,
j Judge of the Patuttlu
] District.
ties const ituto what we call legal rimed it a. It
la obvious, that wjthout Mteh remedies, tnandntre
or prohibition, by the Lreirioture? Would only
operate aa advice, and could not cowry/, or oruri,
,, n tr.. , ,, „ or o/be.: I. •. could create no/«y<i/ci/v<'A»n. It
AuTiini lltmn, wiUiAM I). Ktnnoo and K. R. |. „nt mUtM.incd, tlmt any certain degree or
Harukv. Counael for the Demurer.
llRHHKKr Fhuj»«u and Kuiesicb I.. DW'tiUfc
Contra.
t;
opinion of the court.
The alatve atatid aellon la (or the recovery or
tbednumgr., which the 4th Section of the’ Act
( MMil by the General Amctnb'y of (bntgia,
larch 6th, lbdfi, ^Commonly called tlio " Htuy
Law,") allow., against nny'pcmm violating tic
prohibition by mkl Act, laid upon tbe levying of
execution)!. Tint Demurrer ibeti'to Is on tin*
ground, that the »ald •• Stay taw ” la uneonrii-
tetional. and therefore tbe I’laintiir eau havu no
right of action under H.
Il.fore emlwiking upon the Investigation or
the grave question at hand, let ns distinctly state
the general principles by which thu Court should
be guided iu this Bpd similar cum*. Tbe llnv-
erument of this State, tike that of our Federal
Union, being divided Into the Legislative. Exec
utive and Judicial departnu nts, to each ha.been
omigned, by the Constitution, its nppioprintc
sjdic.-e. Every department Is bound to presume,
In behalf of the others, the utmost good faith in
the discharge of their respective functions, and
that each has confined its action within Its ap
pointed bound*.
To t'tu Judiciary, however, is assigned Ihc du
ty of ascertaining and declaring, in disputed
eases, what is law. The Constitutions sre blit
fundamental laws, ond are to b* construed by
the Courts. Such being Mic province of the Ju
diciary, Acts of the Lrgl*lntu;e emtio liefore tills
Hepurtnieni for construction, and for determina
tion, when such a question arises, whether tlioso
Acts are binding, or. through repugnnnrs to the
Constitution of the state, ot of tlu Union,
void.
The courts, however, from solemn respect to
the wisdom of the Legislature, will not declare
any Act of that department umeoii.litutional,
unless driven to that course by trrcsistable con
victions of duty. Na.v, they will not enter upon
tho investigation of tbo constitutionally of a
legislative enactment, unto* a legal case pre
sents itself, wherein there i* uo other alternative,
but them must either be a refusal to adjudicate
the rights of parties, directly involved, or n de
cision on such constitutional miration. Does
such an emergency niise hero ? Is this a case,
whereby no two ways ore opened for tlm Court,
but in which, In determining tbe rights of par
ties, wc must decide whether the Act of March
fith, I860, is consistent with, or repugnant to,
the Ccnstlttllou of this8tale, or of the Unlou ?
I ait the facts solve this inquiry.
On the 1st of January, IMS, Hendry execu
ted to (iunn his promissory note, due one day
afterdate. Oil this debt Omni obtained judg
ment in May, 18(56, ami has since procured s tl
fa. to be levied on Hendry's property. The lat
ter lias brought to Ih'i Term bis suit for dam
ages, specially allowed by said Act, on tho
ground lImt the levy was h<i illegal seizure of
bis properly, in express violatiou of tho Act
alnnwnM. Gunn demurs trt tho declaration, on
ground that ih# Art authorizing this suit Is un
constitutional. At the date of said undertaking
a slay law existed, prohibiting the levy of nny II
fa. beforcUm 1st of January. 1864. Defendant
does not deny tlmt Ills contract, made thereunder,
was subject to that restriction. lint tlmt law
bad expired by its own limitation. 1 lie Act now
before tia orders him lo alwlalu from a levy still
longer, and provides the penalty, now sued for,
agnh»t its violation. The dclWlint, haring
proceeded In defiance of tills law, is cleatly lia
ble. It Ihe Act Is valid. tVhetl er It Is valid, ot
void, then, is Involved in Ibe m-cstion of bis lia
bility. Tim weighty inquiry is thrust upon the
I'ourt, There is no evasion of It, without a
wilful denial of justice, by refusing to adjudi
cate Ibc rights of parties title ant.
It is coiitemlcd, Umt this Act falls under tlm
prohibition coiilainod In the Knleial Coiwtltu*
lion. (Art. I. Sec. 10, and I*. 1st,] agnlnst Htata
•* laws Impairing thu obligation of contracts.-'*
The oamc inhibition is embodied iu tbe Consti
tution of Georgia. It is necessary, in llm first
place, to ascertain what is mount by “ the olili-
gation of contracts,'' as (hut phrase is used in
these instruments.
The term obligation, in ita largest sense,menus
that power binding to do, nr retrain from doing
anything, which constitutes such doing, or re-
frsi nmg a duly. Fuclt binding |x.wer may emu
nsle from different sources. In its very nature,
it always |s-esitines some means to enforce it.
F«r (■•(•new. God having couitunidul some
things, which He undertakes to enforce on the
dutiful consideration of men by appropriate
dealings, thence arises an obligation to do what
is so enjoined. Tbit is called a moral obligation.
Of this class are the giving of alms, and many
outsold act*, as well as all spiritual duties.—
There ere moral obligations in a contract. Thus,
it there were no civil government, nnd two nun
should make mutual promises, neither immoral
nor imposaible to lie pcrfotmcd, Ibe moral duty
of veracity would bind the parlies to fulfillment.
The Almighty having created obligations of this
sort, and assuming, by liis own immutable laws,
lo enforce them, they are independant of human
!•-gtal.it Ion. Man can neither destroy nor impair
them.
Surely Ibe Convention did not twain to pro
hibit tiie Stales from doing no lmprn»ibilily. The
(.oiMitutionalrtilc under review must L* held to
he seneinle aud practical, and therefore to refer
lo (best obllgaUone, which are creatures of hu
man law. ami can be annulled, or impaired, yb
human legislation. Jt is (lie legal obligation,
then, which is to lie protected.
Again, tbe term '• obligation of contracts ” is
applied to international engagements, ruch oh
treaties. The bindlng power here isdcri red from
those rubw, which enlightened nations have as
sented to, as legitimate statements of the moral
duties which ,Slides owe to each other. These
duties are nof, lo general, capable of adequate
enforcement by civil remedied, but are usually
exacted by anno. Ho far os they ore incapable
of leing enforced by such civil means, nr are not
made the subject of such remedies, they must lie
considered rather as moral, than legal, ob ligations;
r if we will cal! them legal ones, it must be with
kind of means of enforcement is ucccssaty to the
mere existence of a legal obligation. IVbils the
taw providew any dlsadvaiiiago to the defaulter
for failure to compiy with a rule, or any means
Wbm-by the |«rty Whose jurt claims are witlil cld
call havo justice exacted, the legal obligation
exacts. What we maintain Is. Umt wlthont nny
legal moans of enforcement. there can bo no le-
8 *1 oblig.diou. That one party 4 bound to ful-
II a promise, Implies tlmt ll.e j;ri inlsee has n
right to demand nqd exact Its fulflllmont. Tiie
nUH'iico ot the legal right in the latter argues
Ihe absence of the legal duty oil tin 1 former.
Hence, the Common Law Maxim, *• Where there
is a rigid there is u remedy," is n truiuii; since
Uie total want of legal remedy sliows, that the
C re tended right, however uior.tl, is not banclioned
y Hie law, i. e. is not a legal rigid.
Fmn this foregoing leneouing is deduced tlm
true relation between the “ obligation of con-
li iicta,’' and the remedies for their enfom meiit;
The obligation and tin* remedy are not identical.
In 8tuiRea va.Crowninahlfld,the learned Chid
Justice jciunik?, " tho distinction between the
ebligatloii of a contract, nnd Uie remedy given
by (Tie Legislature to enforce that obligation,baa
l«-en taken at the bar, and exi-ls in the nature of
things." [4 Wheal, 122.1 Vet the former is
auiiported by ami aUolutely dependant for its
existence cn the remedial part of tho law. llm
latter,i* devised solely fur ihe support of the
tyrmer. A simple illustration will present tills
relation, almost visibly, to every one. The arch
nnd the pillnrs, which support it, lire (lifie-mil.
Yet the fonmr is slisoliite'.y dependant upon
the latter, and! uusnppOTbu, will full into in
stant destruction. Tlm latter are erected onlv
for Uie mip|Kirt of the foruur. Wc prefer tins
inode of expression concerning thu connection
between the remedy ami tho obligation of a con
tract, to one often used, by high authority in
■ucli discussions. It Is sometimes sold, that “the
remedy Is the obligation sometimes the reme
dial laws ill force at the data ot thu contract
are said to be ''a part of the obligation." If
those* statemeujH were literally true, any change
iu the remedy, however small, and whether fu-
VoraM'j or unfavorable, to the enforcement of the
particular thing promised, would bo distinctive
to Ihc Idcnlltv or the contract, and therefore un
constitutional. The iuri-ts, w ho have used such
expression!*, have, inured, not given them so ex
tended an application. Yet such expressions,
Med in stipimrt of decisions against certain Icgia-
ijtive* changes in remodies, have nfltmled occa
sion for the claimauta of unlimited legislative
control over the remedy, to sot up a delusive de
fence by attacking such modes of speech. Hence
arise** an apparent cimtliol Iwlwccn th>«e adjudi
cations wherein particular changes iu the* nnicdy
hare fieen hold tlolalire of “ tlic ohligatlon ot
contracts,'' nnd others in which some alterations
of renirdieH have* been sanctioned. A correct
statement of tho rela'ion between the obUeation
nnd the* remedy will go (ar to harmonize all tiie*
leading decisions on this subjict. If, in this
opinion, wc shall have occasion to cito jiBMnges,
in which such Ulodca of exprusion occur, lit it
be borna in mind, that tro sanction nub etprir-
sions only as practically true in ihe easts where
they haiqien, amt as implying, w lien goni-ralizul,
the qualifications already suggtwttd.
To follow this plain Illustration above given,
there* are lour class** of changes possible to tlm
pillars, each having its appropriate effect on the
superstructure: 1st, indilfireiit chuiigcs, which
make the arch neither weaker nor stronger, but
leave it iqually vuluub o for all tho puipt HS of
Its erection ; 2d, improving changes, when by the
nreli is strengthened and nmdu more* available ;
.'Id. dvstriictivo clianges, which bring tlu* arch, in
total ruin, to thu ground ; red 4tli, impairing
charges, whereby, though etlll h tt lu < si*Uiu«
os an arch, It Is weakened, or mr.de Ufa valuable
for ita purpose*. As an (xomph* of the first class
suppose an Immediate substitution of onu nillnr
by niiolbu equally strung and weU-disp<*ca. blit
of a dlfTi'renl mat*rial, us a large wmalen one by
u fiiialler iron one. Under lids dam. too, might
be mentioned vnilousoriuimeutnl cluingCH in the
buse, the shaft ami tbe capital*. Hu, too, simii d
Ihe um-killful builder erect a supernumerary pil
lar, on which no juirt of the arch can rest, nr
which, (hough once sharing Ihe burden, lias,
through fettling or decay, erased to give nny sup
port, it may bo removed, and tho siijicislnicltire
will be neither betlci, nor worse, for tho change.
The 2d clou* will lltid suitable illustrations in the
addition of needful pillurs, the siilstitiilion of
Weak by strong ones, etc. The nmoral of all
the supports would present tl e ?»• class nf chang
es, while tbe displacement one whichUweiul
the substitution or * weak for a strong one, nr
of an lll-dispusd for a well situated one, would
exemplify the* 4lh rlasa.
Now a law torbidding tlm impairment of the
superstructure, dixw nut sar *•» (main*, prnhlliit
changes in the pi)lni>. Huch an iniunctieu may
Ik? violated by a direct attack on the arch, tear
ing out the keystone, plucking aw oy the inortar
or similar nets. Rut no one will contend, be
cause some change* can be made in Uie pillars
without damage lo the arch, that one may t<nr
away the supports, to the utter overthrow of tlic
entire building, and be Innocent, merely because
he applied Irs fire** only to ihc pillars. As well
might ono forhidden to kill, maintain bis iuuo-,
ccuov hecouM ho only pulled the trigger of n >
gun. whose leaden eburgs, hurled |m 0 tlu* body
of his antagonist, prednerd death, rrohibiticu '
<>f an end, prohibits all effectual mean**. Inoa-
much ns the supposed law loioins uot only ihe j
deal riuiion, but even tlic impuirim ut of the arch*!
it is iqually obvious, tlmt such s law will be vio
lated by any change in the pillars which impairs, I
i. e. weakens, or renders lets available, tbe super
structure.
In Ibis figure, the arch is Uie legal ‘ i bllgntion j
the contract.'' The pillars nr* the n-medii s
by which the law, in undertaking to enforce* the
contract, gives jt its obligatory quality, whence
It becomes n legal obligation. The Constitu
tion*! prohibit, not the destruction only, but tlic
impairment of each an obligation. Those w ho
framed the fundamental law. contemplated the
legal obligation of a contract as something ca
pable of existing with different degre
reference to the resort, which.--under the so-called strength, advantage, availability or value wbieb
* | '* ” * i foe their degree* were susceptible of being varied by
legislation. Now to make tbut, which yesterday
was a legal duty, to day coon* to be one, Is not
to impair nn obligation stilt allowed to exist, but
is to utterly destroy one. That doc* not present
the case ill an obligation poasming different de
grees of strength at different linns. 1 lie only
sense in which legal obligation can, in the nature
of things, be stronger or weaker, ot one time, or
under one law. than another, is with reference
to the comparative efficiency of the different
remedies which arc allowed lo enforce compli
ance with it, o*- to give to the promisee the ben
ilita dnp Wm for the no.i compliance. 1\ litn tin
rcmedicf are made more efficient in enforcing
pirformance, or furnishing ihc due redin-fl. thi
obligation of llta contract is strong!Inmd, or hi- ,
bniicet*. Rut when ihe cnmpulrory process h
made IdT (flicucimis in predneing thu requires
•• laws of nation?,’’ may be had to
exaction.
Again, tbe term “ obligation of contracts " is
used w ith reference to the rngogi menta of pri
vate individuals, ■* of public iMKlie* considend
os subject to inun]pipsl law. What lbs* law n-
neU of oik* to do. that It© is under legal Ulujahon
to do. The Ui/il “ obligation of contrncta" is
that duly of fulfilling the engagement, vhieh the lav
rutrU. Chief Justice Marshall has thus defined
the phrase, which we arc considering : “ A con
tract is an agreement in which a party uinhr-
Ukestodn, or not to do, a narticnlsr thing.
The Inc binut him to perforin his undertaking,
and thu is. of course, the obl’gatlon of Li* con
tract'"—[Sturgis vs. Crowui'i*Lield, 4 Wheat.
122.] The Divine will requires! that a man shall
•bide l>y every fair contract, though It rests in
parol; bat tls« lair does not enforce the perform-
coinplinnce, or ringing to the iiroinluce tlic
dumiiges or other ndvantagi*. which are* Ills due,
then tho legnl oldigntion of the promise, though
still surviving. Is weakened, made In servicea
ble, Ires valuable, i. e. Is •‘impaired,' 1 Inasmuch,
then, as thu constitutional veto is not put unoii
legislative changes ill the nmidlcs, thtreforu
null changi** may be made, if they are not
menus ifleclive of tho prohibited end. If such
im-d'licntions make (lie obligation ot (lie con
tract to bo less efficaciously enforced, they are
iueluiUd in thu prohibition.
On the Hue of tills distinction may bo harmon
ized all the lending authorities. Ill some, tho
vigor a il extent of the constitutional prohihibi-
lioti, Is the view immediately presented. In oili
er*. certain acta ol legislative control orer the
remedy are functioned, nnd the precise limit to
nidi nghtfal control is not stated. Upon careful
inquiiy, it will bo lound that the former doctrine
stands, everywhere, an unfailing limitation on
the latter. In some of the losimd opinions of
great Judges, gouiu periods aud stages of the dis
cussions have nol been attended by Hist accura-
cv of language--that constant carrying along of
all the quiklrflcalioiis of every general truth,
which would have excluded tue pofvibility of
niisundi rlandiiig.
For in»lane-;, t hief Jiiattco Mnislmll, in (lie
sentence Immediately tallowing Ihc lust one
utiove quoted lYom him. says, •* Without Impair
ing (lie the oblloition of tlu* contract, tiie reme
dy may certainly Ikj modified as the wisdom ot
Ihe nation shall direct." [Bturgcs va. Crownlii-
rhicld.] Iliis Inugiingc is certainly loose, and
(hr exceeds nn accurate statement of Ihe point
decided in the case. That noint wna the cnnstl-
tulioimlity of a law, wlicfcby an liisolveiil debt
or V I ody might be dischai-gcd from imprison;
nWitt. on delivering up his effects and complying
with other conditions. Tliis dictum bus often
been quell'd, ns authorizing Hie unlimited con
trol of the remedy by the legislature. Tiie
learned Judge was unfortunate iu tin* manner,
in which heIntroduced, Into this sentence, the
qualification upnn the.Uglriutlve rialit lo modify
nnudiis. Rut it is unjust to Ids ubcrinllnntiug
mind, to suppose, that no Intended to say, tlmt
iio change in the remedy coOld Impair tho old I-
gulion. It Is alike unjust to Ids character, us on
able defender of the Constitution, to suppose Hint
he would regard nn Indirect uttack on the obli*
gallon, through tl e remedy, ns leM obnoxious,
than o more dimi ono' That lie recognized the
|H»sibility and the uiiciiustltiitloimlity of Impnir-
ing “ ihc oldigntion of contracts," by lnwsmwli-
fytng the remedy, is nluiiiduiilly shown by the
argilment, at huge, in tho very Opinion from
width Ihe sentmci* under criticism is drawn.
“Statutes of Limitations," says lie, " relato to
tin* remedies which are furnished in tho Coyit*.
Tilly ratlicr cwtutilIhIi, tbut pertain circunmlnnccM
shall amount to evidence that tho contract has
btcii pel formed, than-dlspousc with its perform-
mice. If, In a State Vhere six yearn may lie
jdendid ill bar to nn action of asfumpsit, a law
should pass, declaring that conlrucls already in
existence, not barred l*y Hie stainle, should be
const rind to be within It, there could In? buhlit-
tlu doubt of ita uiicoiistitutlonality." Tlmt be
considered a law, providing tlmt judgments
should bo curried into execution only by instal
ments, violative of the constitutional rule under
review, Is evident from the following pnwsgo
quoted from tho mine decision : "It teems
scarcely |K*dbli* to suppose, Dial the (Varner* of
tlm Constitution, if intending to prohibit only
laws authorizing tlu* payment of debts by In
stalment, would have expressed that intention by
raying " no State shall paw nny law impairing
tin* obligation of contracts. • • • • pj ( ,
men w ould use lei ms embracing n whole class
of laws, for tho pur nose of designating n single
individual of that claw. • • • • HUprems-
hly that laws sqcli as those which have been
hlatid in argument, produced the loudest com
plaint-were most iinimdinlely felt. The atti?n-
tion of Ihe Convention, tin refute, was purlieu-
hilly din cted to tliis noper money, nnd to ncta
which eiinl.li d the debtor to discharge Ills delds,
otherwise than wns stipuhitnl in tho coulrnet."
Wbkt w in. the nature of Ihc iti>*tnlineiit laws, litre
uiluded to, as iiMlnuhtcdly covered by the enn-
stllutlounl proliiliitlon, may he learned (Vohi tlu*
following sxoii nle. An Act wns pursed in
South Osrediim, Is'ov. 4th, 17s 8, providing, "that
all drills (with various exceptions) contracted
previous to the II»t of January, 1787, shall lie
rccoveiablu ill installments, i nly one fifth lo he
payable annually, Oil the 2/ith III Mprch lu each
sin cm ding year, until Hie whole Ih paid." ll
C'sri.llnn haw It* pusitory, f*fi. Jones vs. CriUeu-
den.] This was a law, ml dvetroylng Uie co«-
traet, hut mollifying tin* reim dy only so far, as
that suit could be brought and judgment obtain
ed fi r ofle lilth of tlic* d< lit only, i nch year. Yet
thu fact ll.nl it wiis a law tnodflying the remedy,
did not relievo li frcni tho condemnation oi the
Judge, wbt m luguagp nt w ui der rovtaw, tao(U*n
qiiDti d to mnciinii nny allemtions in rrniedlif,
which the I.culslnlure may choose. A fair con
struction of tlinl often in'.siisid language la (his ;
‘without impairing the cbllgatiMi of thernii-
tract,'' l. c. r<>'ong as it Is not Impaired, "tho
remedy may certainly be nu difiid as the w isdom
ol the nation shall direct." Aril such U our
doctrine.
Mr. Justice Laldwin, In dcllriring Ihc opinion
of lire BupreltiC Court of tlm United Stales, In
McCracken, vs. Hayward, 12 1100*. tiO!'] says:
••I lie obligation of a contract consiata in its bind
ing fern* hi the party who uakt* it. Till* de
pends on the laws in existence when Jt Is made ;
these arc nrcrrenrlly referred to in nil contiaets.
and foitn n purl of them as Ihe measure of the
obligation t<» |s ifiKin them hy one pnrly, nisi
the right acquired by the other. • • • • •
When it (i. t*. the contract) become* conrumninli il.
the laW defines thp duly nnd the right, compels
one party to perform the thing contracted (or,
and gives the other a right to enforce tho per-
firniuuce by the mm dii s then in force, ]| nny
nibseqent law affect to diminish the duly, Or to
impair the light, It necessarily bear* on the obli
gation of the contract, In favor of one party lo
the Injury of the oilier; hendt* any law, w bicli in
its operation ainounta to a denial or obstruction
of the right* accruing bv a contract, though pro
fessing to net only on the rminly, is directly ob
noxious to the proliiliitlon of the Constitution.
Tho law, which tlic Court bad under review in
(list case, was nn Act providing Hint, before
property should be rxpoecd to sale under com
pulsory legal process, it should Im gpprnised ;
and unless es much ns two-thirds of Its appraised
value should be bid for it, itsl.ould lie withdrawn
from Uie market. Tliis provision w as made in n
time of pecuniary stringency, and was orofemil
ly intendi d, to prevent the sacrifice of the prop
erly of defendants, under tho Sheriff'll hammer.
Much perhaps might be sold in behalf of the eq
uity and policy of such a law. It might bn said,
that surely tint property of n debtor might to
bring two-thirds of Its valuation by disinterested
appruiseie—Uiot one-third wns enough for the
pour debtor lo lose—that thu creditor, pressing
for hi* money by such harsh means , ought Iosco
to it. that the dilitor's property brings something
like its value- that iic ought to procure hidden*,
or bid himself, ot Icnst as high ns two-Uiinls of
its value. It might, likewise, Im suggested, that
if it did not coii'imu.d Ihe nqu'red bid on the*
first exposure of it in market, perhaps, It would
a little later, ond thus Hie debtor tx* raved u
great snciiftee, at the cost of only a little delay
- a slight stay of execution- to the creditor, in
deed it might r ven be said, Hint the defendant
might have other property, which would be'
more in demand,.and the creditor should proceed
upon It. AH this nnd more might he su'd, to
-bow, that tho law iu question did uot nceessuri-1
ly difi at (hr mdit-T'* light to collect Ills moil-1
y— did not impair the obligation of tho con-1
met—but wu»; only u modification of the win'- |
Jy, demanded hy private justice and tlte public
in* rgcncy. I ut ihe Hnnreiuc Court of the united
tabs jowly livid it to Lc* an impairmtut of • the
obligation of qpntrncls," nnd void, Tia V make
use of Ihe following cogent language : "The ol>
ligwtloa of tbo contract luiwin Uie (flirtin in
this care, was to iKTfnrm tho promises and unVct**
taking*, conlniiied therein ; tho right of tho
pluintilf wns to dutiingcs for the breach thereof,
to .tiring suit and oblulu judgment, to tnkp ont
and prcioeuU? au execution agnlnst tlic dtfoml
ant, till ihc judgment was satisfied, nurnuabt to
the existing laws of IIIIiioIh. 1 heso laws giving
these rights were nr neilictly binding on the du-
fendauC and nr nuicli a part of the contract, ns if
they had been ret forth in its rtipuInlioiiH, In the
very words of the law M inting to judgments aud
executions. • • • Any 6ubK*qut'tit law,
which denies, olislruchi, or luipaini this* right, by
Buperaddiug a condition tlmt tln ro shall be no
sale for any sum Im than the value of tlio prop
erty levied on. to be ascertained by apjtrulse-
meut, or any other mode of valuation wait a
public? sale, affects the obligation of the contract
as much ill Hie one case oh in tW other." Not
withstanding the foregoing language of Mr. Jus
tice linldw'ln rooms to give lo the remedy allowed
nt Hie date of Ihe contract all identity with the
obligation, yet in other parts of the mine opinion,
ho concede* to the legislature tlic Mime cxieut of
control over remnllCH which wo allow in tlio
doctrine or this opinion. Ho only incgpH to con
demn such modifications of the remedy, ns render
it less cffiuicnt in securing the righto, and" enforc
ing the obligation of the contract, [vid p.igc* 231
nnd 232.] • #
lu Rronron vr. Kliizle, [I Howard 317,] the
rnme Court held, tlmt "a H‘Mr law which pro*
fosHedlj pruvldetl n remedy lor enforcing tire eon-
tract of mortgage, iffcctuallv impnired the right
incident to, nnd attached to it hy tlio laws in
forco at its dale, and w as therefore! void." Chief
Justice Tauey thcroBays ; "Wo havetjuoted Uie
entire paragraph, boenuso it shows, iu a few
plain words, and illustrutes by a Inuiilior i*.tnm-
|)le, the connection of thu remedy with the right.
It ("Hie remedy") is tlio part of tho niunieliml
law. which protects the right, ami tlio obligation
by which it enforces hud maintains it; . it is the
protection which tlic clause in Ilia Constitution
now in question mainly Intended to secure i and
it would lie unjust to tlio memory of tho olstiii-
guikhed iimn,Who prasentcj it, to siippnso tlmt
It wnsdi signed to protect a mere* barren aud uh-
struet right, without any prnoltcai opernilon up
on the hiisiiu is of life. It wits undoubtedly
adopted ns n pav t of the Constitution, for a great
and usefol purpose, il was to maintain tlio In
tegrity of coutiiu ts, and to cure their follhful
execution (lire ughoiilthe Union, hy placing them
under tlio protection of Hie CoiiKiitullou of the
United States. And it would Ill-become lids
Court, to sanction n distinction between the
right nnd (lit* iv lUidy, which would render lids
provision illusive nnd nugatory; mere words of
foitn, affording no nrotection nnd producing no
practical remilta." Tho distinction which we
t.iko between tlio obligation and tho rerttody,
d<H*s not abandon tlm latter to the w ill of the
Legislature, In Qunckoubusli vs. Dunks, [1 i'enlo.
128] Chief Justice Rronron observes, Unit ‘ laws
which iu form go only to tlio remedy, why have
the practical tMeet ot nullifying tho contract."
In Hie learned note to Kent's Commentaries [vol.
1, p. 4ID, unto A,1 the writer remarks', "the hotter
doctrine Is, that all effectual reim-dlca affecting
tlm Interests and righto of the owner, existing
when the contract was made, become nu essen
tial Ingredient in It, and are parcel of tlic cred I-
tor's right, and ought not to lie diitiirlxd." Iu
commenting upon Green, yf. Riddle, Chancellor
Kent says, Hint "to deny nny remedy under a
contract, or hy burdening tlio remedy with
new conditions nnd ivsliictlous, to nmko It use
less, or hardly worth pursuing, Is equally n vio
lation of (ho Constitution." [1 Kent’s Com.
419.]
Thus it terms to the mind of this Court, Hist Ihe
principles, whioh wpelintaalrd Id Ilia foregoing pert
of Ihie dlscuseiov, stand vindicated, nol only by
that the I.egiilalnro shall not impair tin* obligation
of contracts; I,at : t dm*s not require,thnl the inter
est, which Society I on in peace sad quiet, and iu (hi*
security and stability of nvhls of property, should
bo jeopardized for an indefinite lime, out of nien-
dcriiers tq a osgligent'pprty, who will not proceed
to enforce ids contract. " rigilunlibus, non Hor-
m'onlilus, leges iiibveninnt," U a maxim ms appli
cable i« rights prelected hy ihc ekpiesa provraiuue
of iho CoiMtilntion, oa lo any olliers. An Ait uotl
fying parties,-dial they must prooi ei wtthin a limi
ted future limp, mil linreukoiiubly short ncooiding
to Hie cod se of the Courts, lo enforce their con
tracts, or bo held to have abandoned tbrir claims
under llu-m, does not take away, i or diin<nhh Iho
claimsufB menus el enforcing his contract. I
effect is rather to lender the enforcement ofengngi
incuts more prompt und oriteln, us will ns morn
complete. Huch s law impels the party to use, at
once, tlio legul remedies sol befbre ill ml wlnlo yet
iho contract, with Iho circnnistanns which sur
rounded it, (s frrkh in tbo minds of living witnesses
so that the low can more accurately ascertain nnd
more completely cn force the intention of the parlies,
Huch u low, tbers'oi e, in Ita general etWel, is luvnrs-
blo to tiie obligation ot coniiuets. II in sumo case,
u nrgllgent party loses his rights, it is only another
instance, in which nn individual sullen* a forfeiture
cf a private right to Hie public good, in roiiSMpienco
i.l disregarding n law made no less (or bia Welfare,
limn tor 'lint ol others.
During tlm I tie civil war, the South was, from an
osrly day, dtaiiliitu of any legal cummcy for Iho
ordinary business of the country. Tiie’place of
Midi currency wus filled bj pinor, commonl) culled
" Coo ederata Money," a uiediam, whii-ii from an
early period of its circulation, began 1" deprrristo
with tearful rspidiiy, booh uiisolllvd ail values, und
tomishtd fiv.m the popular mind all recurrent e lo
uaolhor standard of valuation: The words "dollars
nud cents" acquired, in common prsCtioe, a ntw
inesniug, hnrii g rtferefice lo Ilia parts ol Hiis so-
called " Coiifirii tale Mqnov.” TI.oiih mils of cmi-
Iructs were made, wherein men promised sums, ex
po sard ill dollurs slid cents, w hich bsitls panics to
llm coulrncl uiuierslood nt Hie time, to Impoil pay
ment In. the then onlv cutrcncy i f tbe country. -
The Muni promise t, if to be constiued to be paid,
in legal money, were ont ol all just proportion to
(tie coiihiduiuiioiis, in which tlio promises wire
ft utided. Hu.'h construcliou would give tu the con -
Inn In in question ihat c. lor or unconsoimmhVncrs,
which is a commonly recognised badge ol fraud,
nnd is often fe’d lo juslify Ihc ( uirts is refiifli'g n
s'ilet enforcement. In view c.f this state ol fuels,
existing at lit dose ol the war, iho Convention «*f
Georgia passed an otdinancJon the thh day of No-
vmiber, I8G.1, entillcd " An Oicllnanco lo niitku valid
prlva'o contrecls er-lcrcd into and exceulcd ilurtng
the wnr against Ibc Uuitcd .Stales, fold to authorize
the Ccln u of tbil Slate lo adiutt the equities he
tween pnnla* lo conlracti medo, but not exocultd,
and to uuthoiize Aetih'Uienls of such cbutiuota by
persons ucting lu u fiduciary abnructc.r," This law
authorizes in Inquiry Into tbo medium, In which
promise* wero intended hy tho purtirs lo ho poid,
udmils paiol evidence, for this purpose, iu t-xplunn-
imtioii of writtencoiifrscls, and directs thciiscur-
tulnlng und enforcing of tho equities between iho
pzitiof. The Supiiuie Court of this Hluiu has huld
this Onliuunue to ho conMilutional. This iscoin-
nientud on, Bs an authority for exorcising ii large
control over rontroelit, ihruugh Iho modilicaiion of
tho remedy. ’ Thin oh an go in the law, hmvovrr, was
designed lo f.cilltatu the ascertaining und enforcing
ol the v*ry obligation of Uu* contract, into wbiqli
the parties entered. U;hsr applications of it inny
bo made In s luoee practice, quite prevalent in the
Court*, for which tho members 'of tho lJar, cs '
iitterciiltd on all znU* of even- possiblo qttusli
under this Oidlnnitoo, ore mainly lesponslh'e. Rut
ihe Convention did not duslgu to change the L’oc-
tructa, wliloh lh« parlies inude, nor lo liiwuil their
ligul rlghia uuder their uoatniota, wlmn goricotlv
msuci lamed. The Ordinance is « rauirdnil one, fa
vorable lu ilia obligation of contracts, und It wns
In this view ol il, that it has reiolred judicial ssuo-
tfon,
A cl*ss nf Irglslalir* onnctinenls called "Iqaul*
vsnt luws," ‘ iloiiist I)i bnu's Aols," etc., Is com
mon in tho country. They provide in geucrul Hint
* debtor, Imprisoned uuder mesne, or litinl process
fay debt, may procure thu rclensa of* his 4>.idy, by
kltowlog himr.ull iusnivont, and delivering up Ins
clllota lor Ills benefit ol his creditors. Tlio validity
of tbin provision, irgnids dibls existing hetme its
in im* uiscuiwnin, sisna vinairsica, nol onty uy oi iuib jironoiun. n-gnius oiois estsuog uoiiiio nn
llieir own inti inrio iwironshlnnew, hut by the fact 1 onactmeiit, has been ri|un'cdly n ill mu ii hy the
that they fuinishe s lino on which nil the gru. t nu- j courts [Hiu'gcs vs. QfowjilDshiDId. 4 Wheal, 128 ;
Mason vs ll<.ile, 12 Vthcui, :i7«>.] Three inrusai
they fuinishe a line on which all iho giw
ihorilivs, when due allowance is mode for mure it
rrgulsrllics of expresflion, may meet in coni|ilels
harmony.
There 4r *. fcowoVer, severs! classes of cases,
which ire frequently brought loiwurd, ns Juinit-li-
lug inslancL-s, in whicli retroactive Icgislnliou upon
ibe remedy has seriously affected iij^orlsnt rlgfils
foundHl in conlrnct, and yel have received the high
est judicial snnciinn. 44e think that a candid in
quiry into tho principles of snch decisions will slmw,
iliut they are quite consistent with tbo doctrine
which wo maintain.
Tho right and duty of the Legislature to organize
and change, from l ino lo lima, soeoidlhg to public
e*peonies, (be dulzils ol tbe Oourle, their jueisdlc.
lion* and rnodis of procedure, has recoivoa univer
sal reengnilinn. Inginera', such modifivslions of
the foitn et.d form* ol proceeding as jmvn numlly
been approved, belong either lo Ihe clues shove
called •• in proving changes," or arc, at least, " In-
did* rent" in their v pci ui ion on Ihe cnutrzola of
pari tee. 1> any of ihesa should npi ear, ftoin rome
single aland point, lo uffeut The ilunls of any party
iujariotieir, It is lo be loins in mind, il ut six It re
sult is only sn ii'.iliVldUil, Incidental cllifoi ills
nol tlio object o' tho Ilw, which aim* ut general
utility, in iho advancement of justice. It in isllier
nn i lustration, tlmt laws "by icsron of their uni-
velinllly " ateol'en "deflc'enl.” In rhimringlhe
lime*and pistes ol hn'dirg C< nris ond llieir mode*
ol inoceiding, ropsideiuliims nf publio c nveniencu
undgincral subnrvhncy to the ends of justice,
miiii control Uniformity, loo, In such mallets, is
supposed to go a gru.it wav, in ivnctfoninj} the h g
islutivp light In uliiiliilsh vIraim huh fi r Ihe rnfoire
ment of eiistiug coutiuclfi. Mefoio deciding upon
llieir elleat in iliis dine loti, consider, lor n miuneiii,
in what manner and lo wiiai extant, tnijirisanaiwtiL
is a inruns of enforcing contracts. Tho dcbtoi's ob
ligation is to puy limner, A Fieri Fucins, or Vein
ditioni Exp' nan, (rubles the ofiiyvr lo seize his
propel ly, couveri il into cash, nnd pay to llieir cred
Itpi what the dzmot shovila iilvt psld him. This
orccding is osaenlially remediiil, becuuse it direct
E execut'S the ro.iliaol, fmiuieonment ol the
ibtor. howsver, does mil directly pul Uio conlrsot
Into execution. The poivetvwhich ii b.*s for fu
forcing p iyment, is tho constrsluing itfi*i*nce.
which it exercise* on tlio mind of one able, lull un
willing, to par. If the debtor be i liuble lo pay,
though he is luq risoned unlit dooms day, (lit* prom
ise will remain unehlnired—Hie oredltoi’s wrong,
in tte hiss efhls money, will remain imu-incdifd.
Imprisonment, ■ lieu, In'ilic nuluie if things, is pro-
moiire i f the lights of tho creditor, and i nf.-reing,
to the contract, only as applied lo one able lo pay. |
when Bppiiet' lo Hie poor wretch, who bus neither
money nor propel ly. It is he*rlleiis cruelly, no rise'
promr-livo ol ihe pecuniary interest of the cn d.tor, 1
nnd to which b* can, ihcrefore, niske no el.iim ss *
muann lor enforcing hie wmlucls. ilud tlmt
vvrrii'htd old J. vv bien pcrmllled to clU'ch the
qnivoting heart ot his vii tim, Antonio, it could Ot)
i r. jd_ * ju p, n( j nh malice. br‘
obis coffers the tin
iitcrsrsry. The Courts csuni t sit nt one Hum for i Ihomsnd dnciis’. Ho the coullnement of the debt
A's esse, prd st snoibei for il.'s, nor change llieir or, which does not put money Into the creditor'*
procedure (o fit erejy icul or imsgluaiy emergency pocket ut pro*cnl, Would, il perpetuated, iH'- ctiislly
of etch Indivlduwl sailor. It Is tin general nilsfor- prevent tbu forpier from ever acquiring Hie obility
tune, or lot, ut least, ol inuii, that bis work* are! lo pay. Il is not to bo naked in Ibie country,
■ui| erfect. Ho Inimsn governments lubor under where ptrinoul fioedom is so highly adeemed, that
Ibis unavoidable Imjo lection, Iliut (hey ennnof, at '* creditor ahull have tbe light ol perpetually im -
the tume tima, administer Justice according lo a j piisoLiug his dubtnr, for tho crime of Imnerl insol-
syslcin ol thogrea'est general tfBehncT, snd yet rency. The hrniso clamor of old Bhylodr, crying
piescrve to t-.itli Individual, (lie most advantageous In Ilia temples of justi.efor ids “pouiid of flesh,
iwsiiion desirable for tbo enj ijinent of his rights, ( will not be permitted lo drawn Hie voice. f Liberty,
Dm il il is impossible to rariy f.rward Improve- which is Hie music of the Constd'iifon, Recur for
meats in the groerni srolcib for administering lus- u moment, to thu figure of (lie urch. Under ti e
tier, without placing the rights ol some indiriJiml clurn of changes in tbo pillurs Indifferent to the Mi
lo s porlisl disadvantage, nod If, in each conllict, perstiuciuro, wo temurkrd (Let should a pillar
Hie claims ol iho individual ought Hi gtvo»wev lo "wlilcli once Nharcd Iho burden, tbrougli sell!log
tbe incompatible but rquilly obvious sml dignified 1 or decay, cess lo give any support, that pillar may
clsinusof the many, Il dors not Ihenrq follow Hint, be removed, and tue euperstre.cluru ho ntii'-cr bet-
ibe Lrgislataif aio Hi* leu bound by the UoMtitu- tor nor woiso for iho chHiige." Hero Impilmn-
tion, or by moral jostic**, nut lo «xuct, from tbe inenl, promi«ing to be useful in enforcing Hie < III
humblest individual, uny unuec*fiSury srorillce of gnliuu of iho routract, ban been used unlil the d-.bt-
Lis iial> s. Noinlereuio can bs drawn from the 1 or bns turned liter, In good foilli, all bis e-fl'te's, end
slli.wsiirs of such unavoidable mishaps to prlvnle j shown himself insolvent, Tills remedy has now
inltnil, iu .ttvor of the ligbts of the Lcg'ilmura to i done* all Hie good to the cro itoi’s ritnl, whlih it-
mukc changes in the remody lo Ihe Injuiy ol an In- ' was intended to do, or espsblo of doing. Il tins
dividual, where his rights n ivlil well Lu saved con- been legally atccrlainud lo be no longer enfoicing
aisieuilv will lii* duly of tho tegislsture to im- ' lo tte promise, or supporting lo Ihe superstructure*,
prove Hie syslsm for admiuiztoriiig juslico in g«ne- Mjd mor, st Ibis point, b* thrown as de, without
ml. Much less ctn any argument be furnished w oakcning the obligation of tlio contract. The in-
thereby, to justify Hie Legislature, in diminishing i.tancss, in which the Judiciary Isis sanctioned the
IhemiiDsof rvdrets ( f one parly to * contract, discharge of thu debtor's body, have been cases iu
for tlio sols puipnie ol conform g on Ilia rpposile wbicli it was supposed to be legally nrer-i tamed
part^ lb. advantage of total or partial reliof from, that imprisonmunf, as a mcitnan.' v IliC'ion, liml ex
ile lulbilmeiil ol bis undertaking. For a sound
and just expression on this pint wo refer to tbe
ci-uliineiiU ol Mr. .luslice Taylor of the Huprem
Dench of North Carolina. [Vid. 1 Carolina Lav
Repository 65, Ibe esse of Jones vs Crltlrndco.]
L«w» exist in must, jterbups all, tho Blaies, re
quiring ibe recording of lilies to land in some pub
lie office. As an inducement lo compliance, it ft I
oammoo provision, Hint a younger need, duly re
corded, shall take pioccdenoe ol un older one, made
by tho sauiu pnrty, but wbicli lisa uot been properly
registered. This provision Ims been suncliom d by
Ihe Hiqirtme Court of Hie United Hiatus, [8 fillers
•MSO,] 'as welt os by many other Courts. \Vo son in
this mulling to interfere will Ibe conducts of par
ties. A paity, who ncglocts to comply wi'h iho
Inw, for'ciia liis title to one who lias been more drill
gent snd law ubiding— in shint, bo suffers Ibu due
penally of rtfusing to comply with a general Isw.
intended for the goto! of himself in common with
olliers. Vet the outboriHea, which sanction such
taws, do not full to norite Hie necessity of ollowing
a reasonable time after (bs enactment of the law,
for recording existing deeds, and to say, Hud wilh-
fbt such allowance, lue provision would l.-o void.
Htaities of I,Imitation* aro sanctioned by all the
couit*. ilui lufoic they in- allowed to have any
cnstitnl onsl iqi raiiou ou couiruots mud--prior m
tbeir enaclmei.t, it ix uuiverza'ly conceded lo be
ntcuwury, ihat a tcusonab'e lime, In future, for the
bringing of suiis, mu»t ho allowod. [Htorgre vs.
Ciuwmusliit-lil;-l 4Vho4t 122. Jscksoni's.l.iiinp-
bbii* 8 l'*i. kilo, etc 1 The Coukliluti.u dcuutadr
crcistd ila full efficacy, nnd was funclua ( lliclo.
Thus have we succczsAiily liarmouized tl c lend
ing uutlivrities on Iho line of Htu doctrine maiiitniri-
cd in tbia case, to-wit: That "Ibe obligation ol con-
tracis" is supported by ibe remedies for their en
foroement, gml tlmt tbe strength and availability ol
lIio former drpuuds on tbe rllicncy of Iho laltei —
that tbd former mny he mod fied, if lb* change ia
•liber indifiereiit lo ih* obfigulinn, or Incilituu-s its
enforcement without enlarging Ibe liability of the
prrirn ssor—but that all clianges in Ihe remedy,
whereby it doc* less efficiently snstalo the t bliga
lion, or rrpnir (bewrong of Us violation, weakens
tiie obfig-ithm, diuiiitUhca its availability, aud,
Iberelore impairs it.
Apply there prmciplca, to the case at Rsr. Hen
dry, by conlrnut, became under legul obligation, to
tbe first iuslauce, to pay to Gunn a eeltaiu rum ol
money, on a day named Failing lo inretthc ap
pointment, the legal duly is still resting on liitii, er
try day, to pay Umt suut with the accruing inlet oat.
44 hen Hiis contract was made, on th* firat of Junu
ary Ih63, wliat mrsna did the law lurniah for ita en
forcement) 1 ifoi a Ibe Act under couaidoralioti lake
nway tlioiw means, or re-nde* them less efficient t
At tbo d..to in i|ucsttou, ibe general law ot tiie
Hlate authorized He creditor tu son ou. a ftori-fu
tins, and proofed, hy, levy and sale, to rsire from
tbo debtors ( fitels, tho amount rlwe; snbj c' only
to this metric ion impored by the Stay l aw of-N'ov
X9th, 1M2, that lie could not Nipr. cced oiiIiIhI
ler tbe first of January, l c «i In May, ist rl, v-ben
Ounn obtsius judgment, L* is iuct hy .(her r -
•Iraint, imposed March «ih, IHflil. forbidditqrbitn lo
levy before ibe first of January, IMJ7, then allowing
linn In proceed onlv for nnu lonrth of Ids t'obt, atul
l>r a like part only at tire tr.d of each ol the ibc*
(ollqvving year*. Nuw does this Act d m'nisii the
efficiency 11 the remedies for thu enforcement of ilia
obligations of Ibis snnlruct ? i o. fik compelling
llundiy to p.y this debt? 44' hen reduced to Hus
view, tho mutter Jbeoxmv* too p'ftin for argument
Yd, unw illing that anything sin uld seem assumed
ih tlio conclusion In w hich wo umy uriiru, let the
matter bo further illustrated.
Thestic'tgHi end vnlttu of the oblignlion of a con
tract depends on sovtrsl elements In ils enfuico
Diknt—the preimplness, 'ha certainly nnd Ihe cum-
pleteniss wilh which il is enforced 4Vhen com
pulsory process can bo applied immediately on full
uro nf a pnrly lo eoino up to bis engagement, the
inducements to non-coniplinoco *rc less/beenuse lit-
Ha time can bo gained by default. "No uulm|K>r-
tsnt part of tho obllgw'lon of every ronlrant," aay*
jusliee Tavlor, ["I Carolina I nw Rvpo-imry 65,
Jones vs. Crittenden,] urises from Hie inductno-nt
Ibe debtor is under to preserve bis faith." Tho
promise* alia will more rendilr part with ills Drop-
erty, or lights, lor * promise. In which ihu p*-.tn »
sor has so lilt'e |«iwer of dchiyihgfullilltn.nl bo-
yond tho apt oiitUtl day.
Aga'n, if tho uiennanf enforcement are attended
with vet v uncertain success. Hit obligation will be
less fell by tlio ptnmissor ami less ruRed on by tlio
ftlomlseo, ilmn where Hie means nre of u rlnintcler
more likely to succeed in carrying Hie uiuleilakiiig
into «fleet, llut, in iho nature ol thing*, die cer
tainly vvitli which Hie means will cl'ect Iho end iu
qiu-slinn, depends, in uo Mimll degree, on His
J'lttnq t ess with which they iiibj In* iipplietl. A,
being ■ibiindnijlly stdvenl, promises li 41 Ot 0 by Hie
Ul nf January nt xi. Tlmt day urrived, he refuse*
to pay. Iio still hits properly sulliciuut lo mike
out afaclfou. Rut delay in this spplicitlirvn of com*
pulsion, t-peuz Htu door f.r Uie itpcmuuhirion of Un-
cerlaiuths unon Ihe ultimata pufultwmetft of Hi*
pramlso. While the remedy Is lied up, the proms
isst.r ipzy, through fraud, rcckleazneiM, or inhf.r*
turn*, gel rid of Ihu effects, which might he ftucihlr
converted to Abe pntiiiont, and th *, a contract,
which lie might certainly have been forced to fulfill
by promptness ol pressure, may utterly full of en
forcement.
Cure uioio, Ihe compIo'cncM of tho cnfoioemtmt
lias reference to tlio extent, tu wbicli the rein rely
R ives, iu repairing Iho damage from iho breach of
laeontract J i. o. in giving to Ilia proinisseo tlm
benefits, which a fu tiil'ul coinplhinro by tlio olbor
purty would, have brought. Here, ngain. Hie
promptness, wi'h whith Hie compulsion is npplitd,
is an (jfiporianl ingrcditnl. Tho ohligaliini ta to
pay on a givou day. Thu llmo of ftto lii'flllmafit Is
tine of Ihu uxprets stipiilutions in thu engugument,
unit *n often, in tho minds of tlm eon'raetiog | urlios,
* must important consideration. Tlm most com
pletu remedy would be one, which should eompol
payment on ihe day appointed. Itut it would, on
ninny accounts, bo improper, to apply force before
nny default. Yet the enrlfoai day IheronRcr, at
whicli payment is enforced, tlio neater docs tho
remedy coin* to placing the parties where mutual
fajlhfulnees would havo pi,mod thorn ; nr, In other
words, the more completely is the contract extend
ed by llm luw.
An Act, then, dt laying Iho enforcement of exist*
lug Cent reels, which under tlio laws standing at
Ihvtr dale, might havo been executed chi tier im
puira llm obligation ofsuoli contracts In Hirveof tlio
elements -if its strength und rslur, Ihu promptness,
tlm ocrtsiuiy and ihe complotcucsi will vv Inch it is
eu forced.
One purpose of llm creation nf Hie legnl obligation
to p v money promised ia a nolo, is ilml tho right
or llm promisseu therein mny bo vulimblo ns proper
ly. M |a i in- subjict of rule, amt of taxation, liis
ii moil unpuitanl ulenn nl tn llm Commercial-Imn*-
r.dions < f tlm wo.Id. 44’Iio would givoannmcb for
Gunn's not* on Hendry, os If Iho Hiay Law did not
exist f It is far less uvuilublu to Gunn for any pur
peso of proyot ly, than it wfould huvo been uuder tbo
laws in foice, when tlm contract was made.
That such a Inw docs, in its very nature, impair
"Ihu obligation of con tracts," may be illustrated,
ton. hy considering, llist all, whirl! is tiecnaaarr to
nuke it totally destructive of such obligations,'is n
sufficient continuation of the vaine cflcct. Khauld
tho right of tbe legislature bo admitted to pdas a
law Maying executions on prior onntraots, for
Iwelvo Uionllii. il wi I be itnpoiaiblu lo find any sul*
licit nt grounds for tbo denial ol the right, lo add a
second year’s Mny upon tbe cxpiratlnu of th* first,
und yd another to ihst, and ao on ad infinitum.—
The nisloiy of such legislation in Georgia is illus
trative, not only of such u porsibilily, but of an si
most irrrsialiblu tendency in ibnt direction Tho
liret Hiay J.nw, passed Nov. 801b, I860, foilmde tlm
.levying ol executions for twelve months This pro-
vis.on wait rr-ennc'rd annuallv, for four sucreislVo
yeais. The Act nl March 61b, IMiA, rejecting iho
twelve month* limitation, extends tlio proliibillou
"During liis continuance of tlm war.’ 1 In Nov.
IHUA, tbe Convention, tho /list assembly of the pen
plo a Per the clnsn of the war, rei Ircd and continued
ihe restraint unlil tlm adjournment rt tho lollowin^
cerziun of llm General /.sssmbly. Ere that llmllu-
tion hud oxpiied, the Act ul Match 6ih, IHQ6 wus
pusHL-d, over Ihe KxrciiHvo Vito, foibidding levies
prior to Janttsivlat, 1837, providing that alter Hint
da'* (bey migbi prococd for oat-fumih only of iho
sum'dim on tilth fi la, and (but a like proceeding
might be had annually thereafter, until tlm entire
mimunl slu ti'd be raised In lour Coital Insia'inents.
And Lot the next Legislature enacts sgnin over tlm
Governot's Veto n law passed Dee. 18th, 1BGH, de
clare g that ,lhe first instalment shall not Im levied,
Leforu the lit of January 1608, when nne-thitd mny
be raised J th .t the acrrnd third aliull he staved
until January 1668, nnd ‘ho remnindor until 1 • Vo I
To day, uo tuau can see might, in Hie stale of
ptibliu sctitlmeiit. ta justify |lm belief, tlmt such
power, if odtiiifioJ, will not go od lo tlm utter c_
I iucliun of Mil itideLtedueai existing, prior to June
ihu lsl, lfcllfi, '1 lie runic aigumeula vvh cb might
huvo been used for ihe defense of' tho ccnalitulioa
ality nf Hie first in this series nf Aols, aro equally
available iu defence ol tbe lust, and would be in
tU) port of eucb ono of a Allure series running lb
the boundary of rime. To concedo inch a power lo
theHtales, ia to admit, that the constitutional pro
vision against "impairing the obligation of con
IroclK," solemnly ns it was considered, carefully
prepared, and highly prized by our wise loretalhera,
os one of the gru»i couseituiive «lrut«nta in our
Government, ia but ‘'suunding brass and a tiukliug
cymbal."
The obm xh.us effect of this Act is nol a msre
undesigned incident, IndirocHy comcqusnt uprn tho
cxeicisoo/ some plain and Diciasarjr c-ontU ulionnl
function. That il has no *ye to Ibc improvement of
Ihe guuernl system of rcimdinl justice, i* obvious
from Ibe fact, (but il is expressly applicable onlv lo
contracts arising before Htu first of Jim«r 130A. The
umoiiktilut onel features of it are not even veiled
by any indirectness iu proceeding or plutuibtlily in
pietist. TL* very title of the Act confirms tlio
condemrntion eg .lust It. pleuds "guilty* io fts be
half, and invukta upon it* bead Hie sentence of llm
violated Corsiiiulinn. • ll ia entitled nn "Aat for Hie
Relict of llm l’i-Dple," etc. Thut tho Legislature
wt re actuated, in its |«*Mge, by a spirit of (leueati-
Unco, is nut tl'spulcd. llut iliut bvnevolence w«s
nurttal. li ptomines "relief." Hut read ils provis.
ions. Docs it raise a fund by inxath.n, r flie
supimrt ol “the Ismo, tbe blind and tbe maimed ?
lor tlm inuitifruBi.ee and ediicutiou of poorcbihlrenf
lo foroirb fool, raiment and almlter for Ibe bolno*
lira and frimdlesa widow f 44’o find noHiing in if, to
strengthen Hie bcutt, or relievo tbe body, t f Hid
poor wretch, however miserably, who owes no
money. Thu creditor, who, too, may be poor, and
desliiut* of llm means ot subsirieuco, took* |n
ruin Una ugh all the sections of this law to find «ny
"relief" for him. Though inofcsredly for "the re
lief of tbe people," it is for the ''relief of debtors on
ly, and nit Uebtots, vv hut her poor or rich. 44'tmt
relief T From fcomo mental uiulHdyf From some
physical disorder T Nol Relief from the obligation
of iboir contracts ! They hud promised money. The
luw hud sunciioned ihc prutninos, hy devikiug in ad
vance, means for their enforcement. If the obliga-
lion 1.1 ilit-so contracts was enforced with the rigor
und 'rfilctar.Qr ol tlm favva exiating when the prom
iseii were miulu, Hiu»e dtbluis would Buffer the
tranafor of llieir propeity to those lo whom they 'o-
gully owed if. Tills was tiietlirault iled ev I, preci.vc-
Ijr staled. Frenti this the Lcgtaluturo propou-d
"relief," Ly delivering thorn for a time from tbe
oblikstiuii „| tbeir couirauls.
'Hit* precise quo tion lav never, that wa are
aware*, teen before the Hoprenie Court ol Iho Unitrd
Hlules. Hot open » rornpuriai.n oflbo fuclHof ibis
cuse ivDIi lbotto ot McGracki-n v*. Jfu.vwurd, il
reein t lo ns that llm i«se ni Durian Stronger one
for -ludiciai interfsiouc". The atlsB*d dltfrlinina-
tmg Jtislice there cundttui » all luws wbiib "ol*
■>rook" • Die right* octruir.g Lr * lontr ci, Inough
t* *>f sa ng to act inly on th'. r ui.dy." lie ex-
pr-rwly Buys, conroniit g the tight el c -lh-cti. u Lv
ii fi, "lire light of.fhe r-i»iui<fl w t* t« * • • *
wk out .ml prewkttte an eXecuheu ugRAist the de
ll ATLS OF ADVERTISING t
One dollar per square of ten lines for thu first [if
acrllon, tttvd Hovettly-live Cento par square for cock
ailbieqiiunt insertion, util exceetlitig throe,
Ouesqunro three months t A Off
One square on* year 20 00
Fotlrth of a column si* months 50 00
Half column six months to 00
T)ne column atx months 100 01
fondant till (i. e. nil tbo Unto until) Ihe judgment
was satisfied, putsnanl to the existing laws," i. Ktlnf
laws existing whon th* o intruct was made. "Anv
subwquent law, which * * * obsiuotaorim-
pairs this right" is declared void. Iu Kent's Com
mentaries, [Vol. 1. p. 419, note it] Iho writer justly
re ninths, 'all suspension by statute of remedtef. or
nny part thereof, expurg when tlio contract wm
vvuvtvi, is, move or lets impairing IU uhllmHau." lit
Mumgiirnor vs The OlrctiH Court 14 M rs iuri R.
60] Inti Supreme Ounit of MoBiuri held Htu pre
cise proposition maintained try us hero, that '•Stat
ute tllrtc i g a slay of execution on judgments vv *
Uncnn-l.tminnal, bo b s* it regards Hie Constitution
ol Missouri and ..I iho United Hlatot." In Jotio-t
v*. Crittenden, hefty c tlm Httprcine Court of Not Hi
Carolina [ro| orted rn l Car. Law Ktq mitory 65] ii
NUitote (or llm slay of cxecnliottl was pronounowf
void. Rut Ibis, ua wo think tifler c-tref.il cxuntiuB-
tlotf ul the feels, is n sirengor rase for judicial con-
demolition li nn that. All who desire to read it
learned, able amt conclusive discussion of this
quest on. are referred lo thu opinion of Mr. Justice
Taylor, in that case. Similar InwRonsctod during
the war have recently been declared void by tho
Supremo Courts ol North and South Curoliua amt
Mississippi.
Could s ttoubl linger over the question ol Iho va
lidity of ibis Act, ll Would atom treat nothing could
be needed to put ft prompt Bud perpeluut qua'us
upon it hut to cite that c'aui*o of llm Constitutkrtf
of Georgia, whloh nays "Relrouclivo laws IniurlnlP-
I/ affecting Ihe rights of Ibccititen, are prohibited."
Much may be said upon the provslt-nce of debt
and poverty, nnd Ihe common need of such "rcliof. 1
Tho only legitimate effect of snch arguments, is f v
make the Court avoid an unnecessary caAdtmflfltlmi
of llm law. In thu outset ol thltopinfon, this Couit
HtMted, that it would not cflleisllv investigate Hid
qurstlon until forced to do ho, iron tlm*. it would not
declare Iho Act void, unlu*» the Constilutlnnai ar
gument against it ahnultl seem irro-i6liblo. Alter a
lull and pullout hearing of argument ably proaepu
ed, and upon a'candid nud sorupnlous review of all
tlio authorities within our roach, we are brought, fttf
it wore, bound hand and fool, to Ihu ctmclusinn,
Ihat the Lw iu question is iu groefi conflict vyilh
tho Constitution ol thc United Slates aud that of
the Htutu ot Georgia. 44 r u officially know ml no
cessity higher than th* oblig.lion or our oath of of
fice. Swotn to support tltosu Cou*ti!uli»CS,wh»t-
ever tiuiy he nitrpriva’u view* ami feelings, uo re
spond lo th* stem demand of our oath, and pro-
nnuttoe tho Act of March 6th, toOfl, entitled "AH
Act fur tho relief nf tlio peopld of Georgia, ond hr
prevent the livy uu sale of property, under certain
circuu-sluiicea, and for u limited period,’’ utterly
void. Deliberately nuccptieg coatoloutr toalitude M
our highest earthly row a d, we eheerlnlly wait for
un enlightened and unbiased publlo sentimont hero-
aOer to approve Ibis judgment.
Let the Deuiutrcr uj sustained, and tho Aclhm
dismissed.
ISJcs8C(l urc I*xiyiiiBT Subsorl-
bci'N.
Tlio following record wo publish for
tlm bonctit ol Lhodo concerned, hoping^
nfior u curefiil perusal tbo hint wiM Im
taken :
Blowiod in tlio mnn who dulh snhsoJbcf
for tho n04Vh npor nnd pny thorefor.—*
liis foot flltiill hot stand upon slippor-
ry plncoa ; ho flltnll not be* forsaken by
bin friends nor porflocttlod by his ono-
tnien, nor fllmll liis sood ever bo soo,r
bcffffing.
Hlt-fwod is lie tlmt walkoth to tlio ob
floo of tho newspaper, yon, even entered Ii
tho aunctOm nnd pnyoth a year’s .mil/'
scription therefor, Soluh I
lie Bhnh learn wlsdmn day by day,
nnd lie exalted above bis fallows.
Ho bIiiiII talk knowingly upon nil sub
jects, nnd his noitfhbora nhnll bo nal<tii-
tohoa ut tho tnuohtiOM ol bin learning.
Iio shall not contract bud dobta or
loso good bargains.
Ho slmll not puy nn additional pur
cent, on tuxes, lor fiia eyes slmll behold
the notlcS of llto collector, und iio V>yill
take warning thereby.
Verity, ho shall bring his produce to
tlio m'ui kot when tho prices aro excoot I-
ingly good, and withhold it whon tlio
prices deaccmdoth.
Ho himll not lay hold of rod hot jio'
hers, for liis knowiedgo of metulurgy
will touch liitn Hint hot iron barns.
H is children sit all not vox him, nor
his wifo Wear brooches.
Ho shall live lo a good old ago, nnd
when his dying hour is nt baud, hia
soul nhnll not bo troubled as to its fu*
tin s Htnto.
Hut it wero belter for him (lint doth
rofuio lo fmbfforibo for tlio riewspnpoc
tlmt ho l)o bound hand and foot and cant
upon a feather bod.
Iio shall havo no rust either by dny
or night, for visions of creditors Him 11
(lltnco upon bia stomach by night nnd
their aotun) presence torment him by
dnV.
if perehnnfcts ho lifts n momont’s ponce
it is only that bo may have a little rust
oro tlio inomory of nn evil life lacorntoj
bin mind, ns tho goad pricks tho Itfdo of
tlio strong ox, so that his punishment
may bo no longer drawn out.
His children shall grow up in wicked
ness, thuy ahull put llmir hands lo -their
noses and vex Inin to wrath, nnd hiswifu
Ahull kick him out of bod.
A wedding wus recently spoiled iu
Bolicncctudy by n long lost husband
stopping into tlio carriage With thobltisli*
ing bride nnd insisting that If any mar-
n,ylqg Wns to bo dono bo should huvo
tho precedence.
A Western beauty, who was in tlm
habit of taking arsenic to improve her
comploxlon over-dosed hcrudi the other
day, and was only saved’by tho uuo of
an unrotnantic atomauh pump.
ia-A German slntislioul writer re-
marks thut tho Invention of the sewing
mnohino has enabled one woman to sew
an much ua a hundred could how by
hand u century ago ; lie continues, one
woman now dcmuiids as munh clothing
usu hundred did a century ago—-no that
matters aro not no much cliafige.l after
all.
A “down eaht* Viinkcti has rcceittly
invented a rat oxtorrnintttor, consisting
of a sort of powdef Btnfl'. Tho nnimal
jerks his head oil'at the third sneeze.
Squabbles, nn old bachelor, shows
liis stockings, which he has just darned,
to a maideu ludy, who coatcmptuously
remarks,
“I’rotty good for it tnaiL'daFner."—
Whereupon (Squabble* rejoins, djjuod,
enough tor a Woman, •lai n her."