Iowa territorial gazette and advertiser. [volume] (Burlington, Iowa Territory [Iowa]) 1840-1846, 1843-03-25

" -.v-. s.=ss-..z -
ing to the remedy, to be exercised or no
by every sovereignty, according to il.
own views OF policy and humanity.
must reside III every State 10 enable it i,
secure its citizens from unjust and har
, RAISING litigation, and to protect them il
those pursuits which are necessary IL
the existence and we'll being OF every
community. And although a new rene
dy may b. deemed less convenient thai,
the old one, aad may in some degree rem
der the recovery OF debts more tart! :
and diiiicu!: yet il does not follow that tn,
law is Unconstitutional. Whatever be.
longs merely 10 the remedy may b. al
tered according 10 the Will Of the STATE
provided the alteration does not impair
the obligation Of the contract. But il
that ctIc:t is PRODUCED, it is in.naerial
whether it is done by acting Oh the rcmc.
dy, CT directly on ;ho contract itself. In
ei.te: case / is prohibited by the con
s.itl;ion.
Thi; subject came bsIose the Sur.anic
Court IL tho case Of Green VS.. 81. IT., de
ciaad ia 1898 and reported in 8 Nlea,.
!. farrears 10 have been twice c!abo.
ra:ciy argued by counsel on bot. sides,
and deliberately considered by the court.
On liic part OF the Dcnantlaa. ii that
case i, was insisted tha, the laws Of Ken
lucky passed in 797 aud 1912 concerning
Occupying c!aimian;s of Land impaired
the Obligation OF the compact made with
Virginia in 1889 Ga The other hand it
was contenled that these laws oa!y rcqu.
lated The remedy and did not operate on
the rgh; !o,!.e lads
II deciding the poin, the court say, III
IS no answer that the acts OF Kentucky
now IN question are regulations of the
remedy, and no, OF the right 10 the lands
II thos. acts So change the nature and
extent OF existing remedies, as materially
to impair the rights and intcres. Of the
owner, they are just as much violation
OF the compact, as i they directly over
turned his rights and interests . ina in
the opinion delivered hy the Cour, after
the second argumea: the same rule is
reiterated in language equally ssronr
(see pages IS, &c aud 8l.) This iuun
lnent oil, the court is entitled 10 the more
weight, because the opinion is stated in
the Report OF the case to have been una
ni1nous; and Judge Washington who was
the only member OF the Court absent a,
the frs, argument, delivered the opinion
on the second.
Wee concur entirely in the correctness
Of the rale above stated. II is difficult
perhaps to draw a line, that would be ap-
plicabe III all cases, between legitimate
alterations of the remedy, and provisions
which in the form OF remedy impair the
right Bu; 1t is NANTES. that tie oblsa
ton OF Tue contract, and the rights OF ii
party under II, may III effect, be DESTROYED
w denylnga remedy altogether, or NAV
lie seriously impaired by turthcang the
proceedings with new conditions AMI re
s,rictions, 50 as TO make the remedy
hardly worth pursuing. And no one we
presume Woald say that there is any sub
stant!a! difference between a retrospective
law eeclarIng particular con,rac. OF
class OF contracts 10 be ab.ogatel and
yoli; and ot3e which took away all rene
~ 10 enforce them, or cncunbered i, |
VIII. conditions that rendered i, useless or
'inpfactlcab|c TO pursue it. Blackstone in
his commentaries on the laws of Eng
land, vol. o5, after having tyeascl Of
the declara'ory and directory parts OF the
la#, defines Ike remedial liz the following
words:
The remedial part OF Tie law is so
necessary consequence OF the former
Two, lha, laws must be very vague and
imperfect without it. For IN VAN would
rights be declared, in vain directed 10 be
Observed. if there were no method oi re-
covering and asserting those rights when
wrongfully withheld or invaded. This is
what we mean properly when we speak
o. tire protection of the law. When for
instance the dcclaratory part Of the law
has said that the field and Inheritance
which belonged to Titus laihe. is vested
by his death in Titus; and the directory
part has forbidden any one 10 enter on
anotier's property without the leave OF
The owner; il Gaus after this Will pre-
sumo 10 take possession of the land, the
remedial part OF the lazy will then inter
pose It's Office; will mako Galus resto c
the possession TO Titus and also pay hin,
damage for the INVASION"
We have quoted the entire paragraph
because II shows in a few plain words,
and illustrates by a familiar example, the
connection OF the remedy with the right.
It is the part Of the eipal law which
protects the righ., and The obligation by
which the clause in the constitution now
III question mainly intended TO secure it.
And II would be unjust TO the memory OIL
the distinguished men who framed it, to
suppose thu. il was designed 10 protect
mere barren and abstract right, without.
any practical operation upon the business
ot life. Il was undoubtedly adopted as a
part OF the constitution for great and
useful purpose. 1t was 10 maintain the
integrity OF contracts, and to secure their
faithful execution throughout this Union
by placing them under the protection OF
the consultation OF the United States. And
i would but i'll become this Court under
any circumstances to depar, from tho plain
Of the words uscd-una 10 sanction
dlslic'on between the right and the
remedy which would render this provis-
ION elusive and nuga;ory--mere words
81 form atfording no protection and
producing NO practical result.