Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1822-05-18


can have, IN constituting a constitution. It is
presumed, that at the time when a constitution
} is made, that the people are more able TO know
its meaning, than after. So sneak the books
| Then this uniform practice of legislatures
! Since the commencement of cur government
will shew that they have the power to legis-
late on the remedies TO enforce the perform
, ance Of contracts. As is the old maxim, Cam
mitalis error fiicit .ias.
The doctrine Of the Ter Loci of contracts
will clearly demonstrate the difference be-
tween the remedy and the obligation of con-
tract and thereby shew that the legislature
may act IS they please ON the remedy without
/ impairng the obligation.
Suppose contract is made in Kentucky to
be there executed, bat the cause of action
thereon being transtory, and the defendant
found in Illinois, what will be the course adopt
ed here' The courts of Illinois must proceed
according to the laws of their state, TO enforce
the performance OF this obligation. Yet, what
that performance is, they must look to the
laws of Kentucky for information the con-
tract must be executed according to the laws
where it was made. This shews the remedy
makes no part Of the contract Indeed, the
parties 10 contract must allow of this tacit
condition in every contract, that the legsla-
turc have the power to change the remedy at
pleasure-this must be part of the contract
1t the remedy is part of the obligation, the
llilnois courts would have TO pursue the Ken
lucky proceedings TO enforce the performance
Of 4 Kentucky contract. this is absurd. Yet,
above all these reasons, to shew the Legislature
have the power over the remedy, have the
Judges admissions that, show long time
shall be necessary to carry" the executions
"into ehect,' is fair mater of " discreticn.''
This discretion must be exercised ~ the ieeis-
lsture and not by the court. If the court cx-
ercse it, they surely legislatc. Il would
startie you, Mr. Stcen, to hear Of a circuit court
making laws. Then, if the Legislature have
this discretion, which have proven indepen-
IDENTITY OF the admissions OF the court there is
no power on earth can say. Under our constitu-
ion, tbat'their acts are void. Ifihey have the
power, and "discreiion," and although they
do not act wisely, yet their acts are binding,
ard are constitutional laws.
It is principle in the prmmer Of the law,
tilat the acts cfall public flnctionares acting
within the scope Of their auth oritv, let their
acts be right or wrong, are binding Oh all un-
til legally changed. The only manner to
change an unwisc law is to repeal it. Yet it is
law until repealed. Suppose court would
take excessive bail, when the constitution siys
bond SO taken be unconstitutional and void
Certainly it would not because Tie court had
power TO exercise the discretion. 10 many
officers Of government there must be given
great powers. iftaey abuse them their acts
must be rcctifed, and they turned out CT Office.
The legislature have this power.
The Judge in another part of his opinion,
says, "taere as 10 preser. far delay beyond the
Physical necessity fao-sins some TINE 70 do ria'
Is commanded" This admission again shews,
the Leg slaturc must say, how long an officer
may reasonably be supposed to make The
amount Of an execution, The mere wcrling
OF the act. whether it says the defendant may
replevy the execution, OR the sheriff shall be
two and half years collecting it, viii not alter
the power of the legislature.
fthe legislature can a,ter any Of the rene
dies to enforce contract az the Judge sup
poses they car, certainly, they may take away
all remedcs-or they raay say there snail be
courts OF such denominations as shall seem
meet to them. suppose, Mf. Steen, by this
time, you are wearied, and, perhaps, satisfied,
with the reasoning to sacw you the Missouri
act 10 constitutional.
The second reason. in nv opinion, does not
require much discussion to s!ew chat it ought
not to have much weight in the opinion.
The legal definition Of tender is the offer
to pay according to the terms in contract;
and as judgements are generally for inoncy Of
the United States, there can be no other ten
der under the constitution, than such money.
Then tender of property is no legal tender;
nor does The law under discussion say il shall
be a tender. 1t is kind Of friendly offcr to
give the plaintiff property for debt; the
plaintiff is not bound to take it. do not think,
am bound to say any more on this part CT the
subject.
come now to the last objection to this law
and it arises from your constitution; that ".ius-
tice, and right, ourht TO be administered with
out sale, denial, CT delay. This clause in the
constitution must be addressed to the different
courts Throughout the state, more particularly
than to the legislature. Yet, no doubt, Should
the legislature enact, that any particular per-
son should not have his cause tried in any court
in the state, that, this act would be void, under
this provision; this would be a denial" Or
if the Missouri act had said, that Glasscock's
claim against you should not be tried, for two
and & half years, that, it then would be un.
constitutional. This provision intended to
guard against any particular case or cases,
when there might be some unjust motive to
sell, delay, or deny them justice. But think,
no reasonable man will deny, that, this provi-
sion was intended to prevent the legislature
from regulating the courts, and the process
thereof, in any manner they might thinl. right.
You, Mr.. Steen, are indebted to the Judge for
his candor in relating the history of this SAFE,
delay, and denial-because, it goes directly
against the construction he gives the words.
The kings of England were accustomed to in
terfere in the administration Of justice, and is
sue their mandates to the judges to stay pro-
ceedings against those whom they wished to
protect. This was prevented by what the
Judge calls ".Mtgaa CAater." and says, the
above clause is taken therefrom. Now the his
tory of this clause does not shew that the kings