The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1861-07-16

legal dlmcuIty OF the naXIth 'Ihat winch ID vow
cannot be confirmed" and let it be admitted, thai
ON the Goth of Nav, when the ordinance Of thu
Convention, BY which this State withdraw
from the Government of the United States went
into effect the statute under consideration was IN
full force and effect, far as restrictions by the
Constitution of the United States were concerned
in the same manner and to the same extent as Il
the State of North Carolina had never been a mem
Der of, or in any way connected with the Govern
ment of the United States, as to bring up the
naked question, what was the legal effect of the
ordinance adopting the Constitution of the provis
ional government of the Confederate States, made
on the same day. but some few hours after, the or.
dinance above referred to. The ordinance after
wards passed by which the permanent Constltu-
ton was adopted Here was period, say seven
hours, during all ofwhich time the State of North
Carolina in reference to her connection either
with the United States or the Confederate States,
was absolutely soverei On, and the statute in ques-
tion by the admission made for the sake of the
argument, was in full force and effect. Is it not
clear to the certainty of demonstration, that the
effect of an ordinance adopting the Constitution
of the Confederate States, which in express words
provides, ''No State shall pass any law impairng
the obligation Of contracts was to abrogate or
make void and of no effect, this shorlived statute,
on the ground that it inconsistent with and
liz violation of the Constitution then adopted.
The position that the words of the Constitution
are, mo State shall pass any law using the
words in the future tense, therefore any law which
had already been passed, although it impaired the
obligation of contracts, was allowed to be IN ope-
ration, is play upon words, and is not worthy Of
the gravity Of the subject.
The evil which the Constitution intended to
guard against at present, not the act Of pass
ing such q ldw, Lut the effect incident Of such a
ldw; and in respect to this, whether 1t was passed
before after the adoption Of the Constitution,
was immaterial In illustration, suppose dur
ing its uniettered existence of seven hours, the
State had passed law making tobacco legal ten
der In the payment OF debts Alter the adoption
of the Constitution OF the Confederate States,
would tobacco have still continued to be a legal
TENDER most assuredly not for the time of the
passage Of the law inlmaterial If all laws
either opposed to the express provisions of the
Constitution then adopted were to continue in OPP
Grafton because they had been passed beforehand
all of the acts of the General Assembly should
have been subjected to Il gorous scrutiny before
the State was admitted into the Confederacy.
1t is well illustrated principle of constitutional
law that upon the adoption of new Constitution
or an amendment of the Constitution, any and all
laws previously existing, ipso facto, annulled
and became void, so far they opposed to and
conflict with the amended Constitution
on the same that statute repeats all stat
utes previously enacted inconsistent with its pro-
Visions and will revokes all former wis-or an
order from headquarters countermands one previ-
ousy given, so far as it conflicts with its meaning
and intention and obvious policy.
2. But apart from the Constitution of the Con-
federate States we are Of opinion that the statute
is in plain violation of the Constitution of the
State; on two grounds:
1st "The declaration Of rights" fixes the prin-
II, ''no free ought to be deprived of his life
liberty or property, but by the law of the land"
1t is settled that, by force Of this section, the
Legislature has not the power to deprive A of his
horse and give it to B, or deprive f of his Office
and give it to c., or D of his debt and give it to
Fin other words, the Legislature cannot deprive
a citizen Of his vested rights or property. See
Hoke rs. Henderson, Dew. and the cases there
cited. So the question is, can the Legislature de-
prive citizen of his debt, which is vested right
and part Of his estate or property in the broad
sense in which the word is used in the section
above cited, including all rights of persons and
rights of property, either by comforting the right
on third person, or by releasing it to the debtor
or by taking from the creditor the right to have
Judgment and execution for his debt according
to the of courts. Nanifestly, if creditor is
deprived of his right to have judgment and execu-
ton for his debt he is thereby deprived of his right
to the debt, which consists in his right to enforce
payment, and the ground ofhope that this deprva-
ton is not absolute and perpetual, but only until
otherwise provided for by the law" which is held
out by the wording of the statute, does not at all
vary the question of power, because the power to
deprive one of his debt for an infinite time is the
same as the power to deprive him Of it absolutely
and so far the creditor is concerned, it makes
no difference whether the debt be given to third
person or be released to the debtor the violation
of the rights of the creditor is the same, and the
power that can do the one can do the other.
I'd. The statute is unconstitutional, because
it violates the 9Th section of the declaration of
rights" The Legislative, Executive, and supreme
judicial poucers of Government ought to be for
ever distinct from each other
Suppose the Legislature should pass a statute
that the Governor in the recess of tie General AS
sembly, shall not embody the militia Of the county
Of Rowan, or shall not embody the militia of the
State, or shall not do any act of his Office, would
''the Legislative and Executive powers of the
Government be kept separate and distinct from
each other!' Or suppose the Legislature should
pass statute that the Supreme Court shall not
give judgment and issue execution in the case of
Barnes as. Barnes, or shall not give Judgment or
issue execution in any action for debts due on
bonds, promissory notes, &c, when in the trial of
the CASE i'll the court below, the instructions of
jury was required, or shall not give judgment and
issue executions Ill any suit or action, founded eth
er on contract or tort, brought before it by appeals
from the Superior Court, would the Legislative
and Supreme judicial powers of Government be
kept separate and distinct? In other words.
would not the assertion and exercise of this pow