Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1861-07-18

was absolutely sovereign and the statute in question: 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 the ordinance
adopting the Constitution of the Confederate States
which in express words provides No State shall pass
any law mpairng the obligation of contracts was 10
abroqate or make void of effect this short-veo
statute, the ground that 1T was inconsistent WIN anu
in violation of the Constitution then adopted?
The position that the words of the Constitution are
No State shall pass any law" using the words IN the
future tense therefore any law which had already passed.
although impaired the obligation OF contracts was to
be allowed to continue in operation, is pay 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 passing S~eh
aao but the effect incident to the operations OF such
lar and in respect to this whether it was passed De-
fore or after the adoption of the Constitution was i'm
material In illustration, suppose during its unfettered
existence of seven hours, the State had passed law,
making tobacco legal tender in the payment of debts
After the adoption of the Constitution OF the Confede-
rate States would tobacco have still continued TO DE
legal tender Most assuredy not for the time OF the
passage of the law was immateral If all laws either
opposed to the express provisions of the Constitution
then adopted were to continue in operation because
they had been passed beorehand-a of the acts OF the
General Assembly should have been bected to rgo-
scrutiny before the State was admitted into the
Confederacy.
1t is well illustrated principle of constitutional law,
that upon the adoption of Constitution, or an
amendment of the Constitution, any and all laws pre-
viousy existing, ipso facto, annuled and become
void far they opposed to and conflict with the
new or amended COnsttutOn-On the same reason that
statute repeal all statutes previously enacted nconsst
ent with its provisions, and will revokes all former
wls-or order from head quarters countermands one
previously given far it conflicts with its meaning
and intention and obvious policy
2 But, apart from the Constitution of the COnede-
rate States we of opinion that the statute is in plain
violation of the Constitution of the States on two
grounds.
lst. The declaration of rights" fixes the principle
of free government by affirming in section II, no free
ought to be deprived of his e liberty property,
but by the law of the land"
1t is settled that by force of this section the Legs-
ature has not the power to deprive OF his horse and
give it to B. to deprive of his office and give it to
Q, of his debt and give it to Fin other words,
the Legislature cannot deprive citizen of his vested
rights of property. See Hoke U.s. Henderson, Dew.
and the case there cited So the question is, the
Legislature deprive citizen of bis debt which
ted right and part of his estate property, in the
broad sense in which the word is used in the section
above cited including all rights of person and rights of
property either by comforting the right third per-
son. by releasing it to the debtor. by taking from
the creditor the right to have judgment and execution
for his debt according to the of the courts Man
iesy, if creditor is deprived of his right to have judg
ment and execution for his debt be thereby deprived
of his right to the debt which consists in his right to
enforce payment and the ground of hope that this de-
privaton is not to be absolute aud perpetual, but Only
until otherwise provided by 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 Of
his debt for an indefinite time is the the power
to deprive him of it absolutely and so far the creditor
is concerned it makes difference whether the debt be
given to third person 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
3D. The statute is unconstitutional because violates
the 4th section of the declaration of rights. The
legislative, executve-Supreme judicial powers of gov
ernment to be forever separate and distinct from
each ether
Suppose the Legislature should pass statute that
the Governor, In the recess of the General Assembly
shall not embody the militia of the county of Rowan
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 distant from each other?" Or suppose the Legs
ature should pass statute, that the Supreme Court
shall not give Judgment and issue execution in the case
OF Barnes Us. Barnes or shall not give Judgment and
issue execution IN any actions tor debts due bonds
promissory notes, &c, when in the trial Of the case
the court below the Intervention of Jury was requr
ed or shall not give Judgment and issue executions il
any suit action founded either contract or tort
brought before 1t by appeal from the Superior Court
would the legislative and supreme judicial powers
government be kept separate and distinct? In Other
words would not the assertion and exercise of this pow
the part OF the Legislature destroy the indepen
dence OF the executive and supreme judicial powers
the government and subvert the government establish
ed by the Constitution, by centeriug all powers in th
legislative department, and making despotism instead
OF tree government where the powers divided, au(
given to separate departments each acting in its ap
/ proprate sphere as check on the other?
Such it seems to US, would be the result of the con
cesslon OF the power assumed by the Legislature in the
passage OF the statute under consideration.
This result not avoided by the fact that the restrain
on the Courts is confined by the statute to action TO
debts and matters OF contract and that it is not absolute
but merely until otherwise provided by law for
is question Of power. If the Legislature has the powe
to impose this restraint the Courts until otherwis
provided by law it has the power to do so without tn
provision to the restraint when we have bette
times and it shall be easier for men to pay their debts
and II 1t has the power to impose this restraint th
Courts IN respect to matters of contract it has tn
power to extend it to matters of TORT and then maj
who is stronger than may take away my negro or m
horse or drive me out of my house. and the laws of m
country will give me redress because the temple
justice is closed. power to suspend or to abolish th
administration OF justice cannot exist in free govern
: ment Without law and tribunals to administer i
D there can be no government it is anarchy which
worse than despotism and yet the power involved
the passage of the statute necessarily and by logical dc
a duction leads to that result.
If there be such power in the LEGISLATURE we arr
with all our boosted free Institutions infinitely benin
the monarchy of England in respect to the protection
rights OF person and rights Of property Blackstone
the learned commentator the constitution and law
OF England, in vol. ls page 102 says, third subo
dnate right of every Engshman is that of applying
the Courts of justice for the redress of injuries Sine
the law in England is the supreme arbter every man
life, liberty and property, courts of justice must at
times be open to the subject and the law be duly admit
istered therein The emphatic words of Magma Chart
are these, NULL negablmus aut diferemus rectuna "
u'taam, and therefore every subject for injury done
him, IN terri IN boni vel persona by another subiec
be he ecclesiastical temporal without any exception
may take his remedy by of the law and have u
nce and right for the injury done to him. freely wthou
sale, freely without any denial and speedily without
h lay"
Upon the whole we are satisfied that without refe