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THE FRIEND AND MONITOR.
Three dollars per annum .] PUBLISHED (weekly) BY JOHN K. M. CHARLTON, f Payable half yearly
Volume I.J
OPINION
Os tiie Judges of the Superior
Court of the State of Geor
gia, pronounced in the Su
re nor Court of Richmond
county, January term, 1815.
> HE feverai cases preferred to
d>. bnfideration of the Judicial
p- t>ent, render it necessary to
- upon the constitutional vali.
u ffie aft to alleviate the con
c f debtors, pafled in Novem
-83 2, and the aft amending
t t, as well as the aft, entitled
j to authorize the feverai
i of Equity in this state, to
g remedies in certain cases, &c.
I id for affording .temporary
t to the Soldiers .whilst in the
f e of this (fate or of the United
and for other purposes, pas
s . i the laid session of the Legif
~—The former of these sfts,
■ g unlimited as to the time of
continuance, was originally a
petua! aft- By the amendatory
■i of December, 1813, its opera
n i was limited to the 25th De
her lalf.— lt has now therefore
■: i to exist—But for as much
j >ndry aftions inhibited by the
ffions of that aft, were inftitu
uring its continuance, to which
i e provisoes were pleaded in
* . and vhich aftions are still
1 ‘'ding and undetermined, it be
nes necessary to decide upon the
ftitutional validity of that ad,
: etermining the fufficiency or
fficiency of such pleas.
e do not propose to difeufs the
c *>o, whether this department
s the power to refufe its fanc
i'. * o the execution of an Aft of
• ‘ legislature, which, manifeftly
v tates the Constitution of this
‘.'..ate or of the United States—be
cause, * hether recurring to the pe
iod of the formation of the Fede
ral compaft, we look to the con
temporaneous expofirions of the
enlightened patriots who framed it,
cr direst our attention tef the sub
sequently recorded opinions of the
Courts of the Union, of those of the
feverai individual States, or of our
own, we find an uniform course of
affirmative decision, which places
that question beyond the reach of
present controversy—At the fame
time we are net insensible of the
delicacy and the importance, which
are involved in the exercise of such
a power—We yield with cheerful
r:efs to the Legislature, all the ref
peft which is due to a diftinft, co
ordinate department of the Govern
ment. We acknowledge ourselves
bound by the obligation of our
oaths of office, to obey all the Con
•Ututional requisitions of that de
► parrment. We are a ware of the
rei’ponfibility whh.i we incur by a
zefufal to give operation to an aft
•which bss received its fan ft ion—
2ut the mailer feeling of our bo
soms is tha*. which is produced by
die conviftion > that it is our indif-
obligation ;c preserve in
violate the declaration of the peo
will it- b ?0. that
WASHINGTON, (Geo.) — FBIL AT, JANUARY’ 20th, .1815/
great constitutional charter of our j
liberties.
With these views we proceed to j
the consideration of the afts before j
referred to, and firft to that of the j
aft to alleviate the Condition of <
Debtors. The following is an sb
ftraft of such of its provisions as
we think it material to cite :
That from and after a day fpeci
fied in the aft, it (hill not be lawful
for any civil officer of the state, to
issue any civil precept or process
whatsoever, during the continuance
of the aft, except as is therein ex
cepted.
That it {hall not be lawful for
any Sheriff, Deputy-Sheriff, Coro
ner, Constable, or other Civil Offi
cer, during the continuance of the
aft, to serve any civil writ, warrant,
precept or process whatsoever, ex
cept as is therein excepted, or to
levy any execution, ca : sa : or any
other process whatever, which had
theretofore issued, cr might there
after ifTue against the person or pro
perty of any person or persons what
ever, or to make sales by virtue of
any execution at the time of the
palling of the aft, in his or their
pofleuion, or that might thereafter
come into his or their possession,
except such as were founded on
attachment and such as were there
in after excepted.
The B*h feftion excepts from’
the operation cf the aft, among
others, the Planter’s Bank of the
State of Georgia, the Bank, of Au
gusta, Landlords whose tenants re
fufe to give possession after the ex
piration of their terms —The Uni
versity, Academies and private
Schools—The operation of the aft
is not limited to any definite period.
We are unanimously of opinion,
that this aft is in violation of the
Constitution of tue United States.
That it violates that fundamental
principle which is inherent in every
free Constitution, which requires
that justice flxall be administered
equally to every denomination of
citizens, without refpeft to persons.
And finally that it is in violation
of the constitution of the state of
Georgia.
We will endeavor with as much
brevity as may consist with perspi
cuity to aifign the reasons Upon
which we found this opinion.
1. The Alleviating Law is in
violation of the Constitution of the
United States.
The 10th feftion of the 1 ft: article
of that instrument is in the follow
ing words
“No state lhali enter into any
treaty, alliance or confederation,
grant letters of marque and reprisal,
coin money, emit bills of credit,
make any thing but gold and silver
coin, a tender in payment of debts,
pass any bill of attainder or ex post
• fafto law, or law impairing the obli
gation.of contracts , or grant any title
; of nobility.”
We are of opinion that the aft
in question “ impairs the obligation
of contrasts.” There are too
modes of considering this fabjeft.
1. Upon the plain and mnr.ifrft !
VIRTUE, LIBERTTj. AND SCIENCE.
.ySqa of the words of the Coftlti
v i >: ° n ’
> .. With reference to it* spirit
i intention.
, As to the firft, the essence of a
ntraft or agreement, (fays Mr.
,ywell, in his essay, on the law of
ontrafts and agrements) is the
r >ht veiled in one party and the
obligation incurred by the other.
And again -The consummation de
pends upon the fame content, on
which the inception of the contrast
is founded.—
Nov;, if it be true that the essence
of a contrast confilts in the right
acquired by the one and the obliga
tion incurred by the other of the
‘drafting parties, that its incep
| tion and conicmmanon depend,
and depehd only, upon the consent
of the fame parties, can it be doubt
ed that an aft of the Legislature
which interposes between the incep
tion and consummation of the con
trast, and recognizing the right ac
quired by one of the contrasting
parties, forbids the enforcement of
the obligation incurred by the oth
er, can it be doubted that Leh au
aft is deftruft’.ve of one of those
qualities of the contrast in the un
ion of all which its essence confilts,
and therefore, that it weakens and
impairs the obligation of that con
trast. In one word, can you def
:rcy the essence of a contrast, with
out impairing its obligation ?
“ A (law fays judge Washington,
i in the case of Golden v. Brince,)
which authorifes the difeharge of a
contrast by a ftnaller sum, or at a
different time, or in a different
manner than the parties have stipu
lated impairs its obligation, by sub
stituting for the contrast of the par
ties, one which they never entered
into, and to the performance of
which they of course have never
consented. The old contrast is
completely annulled and a Legisla
tive contrast itnpofed upon the par*
ties in lieu of it.” If this be true
i of an aft which merely varies the
! contrast of the parties as to the
! time or manner of its confumma
i tion, what ffiall we fay of an aft
: which totally and indefinitely inhi
| bits the enforcement of such con
| summation ? Affurediy such last
mentioned aft operates to annul the
contrast of the parties, without
even the substitution of a legislative
contrast in lieu of it—lt is to be re
coilefted that the aft under consi
deration was in its origin a perpet
ual aft—that it contains a prohibi
tion unlimited in point of time
against the issuing of ali civil process
except in certain fpeeffied cases.
. In the very fatisfaftory opinion
pronounced by the Judges of the
Supreme Court of North-Carolina,
in the case of Chittenden v. Jones,
it is said, “ whatever law releases
one party from any article of a stip
ulation voluntarily, and legally en
tered into by him with another,
without the direst affect of the lat
ter, impairs its obligation, because
the rights of the creditor are there
by destroyed, and they are ever
! correfcondßO? to, and eo.extenfivs
with the duty of the debtor.” Bth
the aft in question it has been said,
does not interfere with the ft i pula
tions of the contraft—lt affefts thfl.
remedy only. The obligations of
the contrast remain. All the ef
left of the aft is to prevent theut
enforcement through the inilru
mentality of the courts of juftice***
Herein lies the strength of the argu
meat in favour of the conftuution
aliry of the aft. Let us fee if tire
pefition be tenable—'The propnfi.
ticn is that an aft of the Legislature,
may suspend or destroy the Judicial
remedy for the enforcement of 4
contrast, without impairing its ob.
. ligation, ia the sense ir which that
expression is used in the Conftitu.
tion of the United States—Now
the obligations of a contrast, are
two fold.
There is firft, a moral cbligatiotr
—the obligation in foro confcientia*
—of which courts of law do not
direftly take cognizance, and which
can only be incidentally enforced
even in equity.
There is lecondly—a legal obli
gation, which is the proper fubjeft
of Judicial cognizance, and en
forcemeat through tbjg medium of
the courts of law.
The moral obligations of mat*
to his fellow man, have their foun
dation in the law of nature. They
rest upon that ffift principle ct nat
ural justice which requires us/
“ suum cuique tribueref to render
to every man his dye; and human
legifiatures do not possess the power
to difpcnfe with them—But legal
obligations are the creatures of the
municipal law. They may be cre
ated in relation to things in them.-
selves indifferent; and they conse
quently may be difebarged by the
supreme controuling power of the
state which has created them—
Wheti therefore the Constitution
inhibits the Legislature from passing
any law impairiiig the obligation
cf contracts, it must clearly be un
derllood to relate to their legal ob
ligation which alone in the absence
of such provision would have been
fubjeft to Legislative control. The
question is now within more nar
row limits. Excluding the idea of
the moral obligation of the con
trast, as that intended by the Con
ftitution,it remains to enquire whe
ther an aft of the Legislature may
destroy the legal remedy for the en
forcement cf a contrast, without
impairing its legal obligation. The
question seems scarcely within the
limits of grave and serious difeuf
fion. The firft principles of the
science rye profefs ir.ftruft us, that
there is no right without its corref
p-judent remedy—no perfeft obli
gation which is not fufeeptibie of
enforcement—But those who an
swer affirmatively the question just
stated, must maintain, that the cre
ditor possesses a legal right for
which no legal remedy exifts—thaf
the debtor is bound by a perfeft le
gal obligati;*, which neVerthelefs
cannot be entorced.
Again—ln what does the legal
obligation of a contrast consist. but
fNUMBER 2.
