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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.