Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1822-04-13


And this is the answer to what has
been said Of the power Of the Legislature
10 take away the capias ad satlsiacien-
dunn, from which is Inferred, as ofcourse,
a power to change its operation. No
matter what RENE ties they take away, IL
they leave others which are adequate,
the constitution is not violated, for the
obligation of contracts is enforced. Not
so where they render all notifications.
But the court can only act by writs
given by law, and these might be all abo-
lished.
Let this be so-and if power constitnt-
ed right, the argument would be unan-
swerable. But it would only prove that
there is mode by which the legislature
might violate the constitution without
the cooperation of the Judiciary. The
same thing may be said Of the allcdged
power to repeal the law establishing the
terms of courts. Such laws would exc
cute themselves. Eyading the authori-
ty oflhe courts they would only defy that
of the PEOPLE and of GOD. But here
the courts have been called upon to act.
Their judgment is unquestioned; their
process issues its mandate is disregard
ed and they are required to ratify what
is done, and excuse what is omitted. II
they do this, they too become parties
10 the violation of the obligation OF con-
tracts.
8. Eat it is farther objected that this
law contravenes that provision OF the
constitution Of the United States, which
prohibits the states from making any but
gold and silver a tender in payment of
debts. To make any thing else tender
is commonly understood TO mean that
the creditor shall take that or nothing.
The evil is in forcing it upon lin. Both
in that case and in this the means used
do not amount to absolute compulsion.
Nothing more is done than TO withhold
the debt, and drive him by necessity
to agree to take something else in dis
charge OF it.--Wherc the alternative IS
10 take the thing rendered, or lose the
debt, the law is sure of producing its
effect, and therefore, in the certainty of
the mischief, differs from, one which
holds out inducements not so strong, but
where they happen to be adequate TO the
purpose the mischief is the same in
quality and degree. The evil Of tender
laws is the denial OF rights, unless the par
~ will accedc to terms for which before
there was no stipulation. Why shall he
recover at all Why any specific sum +?
Because the other party contracted to
pay. But the other party contracted to
pay also at certain time, and this is as
much part of the contract as the sum.
Both are equally the objects Of his rights;
and both are secured by the same engage
ment. On what principle can we i'm
pose conditions on the performance OF
one part Of the contract, and not OH the
other. can see no difference between
compelling the party to wait for his
money, and compelling him to lose
part of it, unless he will accept the ten
der. In neither case do we literally tell
the plaintiff that he shall lose the debt
unless he assents. We only measure
the degree of c0mpu!sion by the prcbs-
biity of opposition. If a loss often per
cent. or delay of two years and half
will not do, we may as we'll try 90 per
cent. loss, and five years delay WE
still! keep clear Of the letter Of the con-
s,itution, according to the above men
toned construction, for this is not yet
precisely what is generally called ten
der. The thing rendered is not offered
as an equivalent for the thing to DC lost.
We may go on to 80 per cent. or 90
years, and still! there is SAID to be no s-
gal tender. Blu, constitutions are not to
be so expounded. The comprehensive
views of such instruments do not admit
of,hat technical nicely which pares down
words to their narrowest meaning. They
must be Interpreted and administered in
their spirit, and in doing this we must
say that the constitution forbids that a
creditor shall be compelled to take any
thing, but gold or silver in payment Of
his demand, by any denial Of justice in
whole or in part. Construe the instru
ment literally, and it forbids the tender;
the very offer. But we know that there
is no evil in the offer. The interference
ofthe legislature to enforce it is the thing
prohibited, and there is no exception in
favor of one mode OF interference rather
than another. In every case the party
is not absolutely obliged to take tho thing
rendered. Ifhe prefers he may lose his
debt. But he will hardly make this
choice. Nor would he choose to lie out
oft for fifty years, or twenty, or ten, or
five, or perhaps for two and half. If so
he will take the property, and then we
are told it has not been made tender
The highwayman in like manner, may
say he does not rob his victim. He only