Daily Nashville patriot. [volume] (Nashville, Tenn.) 1860-1862, 1861-01-29
SPEECH OF wm.H H. EARKsDALE,
on TIE STAY LAW.
Nude in ase House RsDrssentqt ces, Janl 1851.

md only be beard through my votes; put
lpon this question, desire to be set right
before The constituency irepr eseht on ths
ioor, ard show 10 them that ha We endeaFor
ed to relieve them from their pre- sent pecuhl-
arg pmbarrassment-and ii the legislature
shall fail 10 give the adequate relic that they
the fault is not mi ne; Tor In-
tend TO do ms duty, nv whole duty. me
measure now under consideration, conceive,
is more important 10 be acted on ny Tue reg
isIature than any other one before II, the
bill calling the Convention. not excepted;
for the people can take that into their own
hands and act without the concurrence OF
assent of the legislature. while the necessary
relief can only be speedily afforded by leg
;sJative enactments. Memorials and petit
tious have been sent up from every p'rlion
of the State. calling on The legislature to re-
Iieye the people in this, their peeunlary ex-
tremity. After the Governor issued his pro-
clamation, calling an Extra Session Oh the
LEGISLATURE. the people met in primary
meetings and passed resolutions asking him
to bring before the legislature the question:
of relief, although he thought II was an I'M
possibility to give pecuniary relief oy legi--
iative enactment; and also doubling the poll
cv of STAY or Stop law. Yet so univ, rsal
was the desire expressed, and so confident
tbe hone of relief Fl ON our action, the Gov
ernor could not stand between tae people
and their immediate representatives. The
causes that have brought this State of aHaITsi
upon u.s. have been attributed to different
sources. l conceive it has been produced by
a comparative failure of crops for the last
two wears. It has been dispensation OF Di-.
vine Providence. In connection with failure
of crops, by which the great majority OF cur
citizens met the current expenes OF the year
trou blous times are upon us-poiifically,
sci a Of Oh If roy I'M
nv which property has deprecated and con-
fideuce DESTROYED, which is credit The first
section of the bill under consideration.pro-
yides that all Judgments and DEGREES hereat-
ter rendered by justices OF the peace. or in
Courts of Record, shall. upon the defendant
or defendants appearing in court within two
DAYS after the rendition oil the Judgment, and
give good and ample security, said execution
shall be stayed for twelve months. This sec
ton operatcs only on future judgments, and
extends the stay four months longer than is
now allowed in the Justice Courts. The third
section provides that where judgments or de-
crees have been rendered in Justices Courts.
and Courts of Record, and executions have
not been issued, and if Issued, have not been
levied. the defendant or defendants may aP-
near before the Justice Court or Clerk, and
nv giving approved security. have the eXecu
ton STAYED for six months from the time
said security is given. The two sections pre-
sent the main features of the bill, and
think these are the only two points that are
presented for our consideration The Con-
stitutionality and policy of the measure.
The friends of the bill are met at the thresh-
old that il is unconstitutional, and comes lie
conflict with the LIST Article and Section 9th
of the Constitution OF the United States; and
Art. LIST, Sec. 20. of the Constitution OF this
State, which reads as follows: THAT no re-
prospective law or law impairing the obliga
ton of contracts shall be made" That this
law would be retrospective and impair the
obligation of c0ntracts or vested righis-that
il effects contracts made before its passage,
and eff cts judgments rendered before it
was law. l think that by examination we
will find that the law would not be
retrospective or impair vested rights.
A retrospective law is one passed by
the legislature which effects contracts made
before its passage all laws that are re-
Prospective are not unconstitutional, for they
may not effect contracts, while all laws that
Impair the obligation OF contracts are uUcon-
stituiional but l perceive 20 difference be
tween a retrospective law and one that i'm
pairs the obligation when applied to con-
tracts This clause in the constitution pro-
hibiting the passage OF such laws Is a wise
provision, aud if it was otherwise, there
would he no security of property or efficacy
in contracts: theref re, the Quits are watch
full of its inlringementS. Now, desire to
show that this bill does not impair vested
rights or the obligation Of contracts. Mr..
Story, in his treatise on the Constitution,
says upon the subject OF impaiFing the obi
CATION of contracts, page sos; 1t is perfect
IL clear that any law which eniarges.
abridges. or in any manner changes The In
.enti0n of the parties. resulting from the
fixr i'm
pairs it."
There is wide difference between the OBJ
LEGATION of a contract and the rem dy to en-
force it. The contract is the compact he
tween the pariies-the stipulations of the
parties, and the law gives to the contract it,
vitality and Efficacy. The Obligation stands
sacrt d and invinlate, and when you touch it
you tread on forbidden ground and any law
that abridges or enlarges the contract, or in
anywise changes the intention OF the parties.
impairs it, and is necessarily unconstitutional
even ii it changes the date. duration or
extent of the stipulation. For instance A.
gives B. his mole for one thousand dollars.
due one year after date the legislature has
no right to abridge or enlarge TIE contract.
If law was passed, saying that the note
may be liquidated By paying B. five hundred
dollar, onp-haIf for which it was drawn.
this would abridge the contract, and would
be against the constitution. If the legisla-
ture was also to pass law that the note
should not fall due until two years after date.
that would be enlarging the contract, and
for the same reason unconstitutional. Ii the
legislature was to enact that a. should re-
ceive paper money in payment, that would
be changing the stipuiatious of the par
ties, aud necessarily impair the co1tract.
Such laws would operate upon the vested
rights TO the payment OF the thousand dollars
on the day designated and on the payment
of the sum in dollars. This is what l under
stand to be the obligation of contract !;
which is the essence; | hope | am under
stood.
Now. as to the remedy. l understand the
remedy to be the machinery by which the
obligation OF the contract is enforced and
executed-the process by which the suit is
brought into court and the means by which
its demands are satisfied. The writ, and exc
cution, and all the intermediate process, the
duties of the officers of the court-all, l
deem, attach as a part of the remedy as con-
tradistinguished from the obligation Of the
contract. and think that it can be changed
at the will of the legislature. The remedy
is all we desire to be changed under this bill
only to prolong the stay from eight to
twelve months before magistrates, and ex-
tend the same to all the courts. But Repre-
sentatives that oppose this bill say that if
you change the law of the remedy you i'm
pair the contract as much as if you were to
change the law OF the contract that the
law of the remedy is as much a vested right
as the law of the contract, and sssame that
the law at the time relative to tue remedy
and the obligation of contract enter into
and makes part of the contfact--thereby
making no distinction between the remedy
and the obligatic;i / wish to show, by high
authority, that there is distinction In the
case SturSes os. Crowningshield A Wheaton.
p.ge 200-it was held :: The distinction be-
tween the obligation of contract and the
remedy given to enforce that obligation, ex-
lists in the nature of things, without imp pair
ing the obligation of the contract. The
remedy Eay certainly be modified as the wis
dom of the nation shall direct" But we viii
examine the rule laid down by the gentleman