The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1861-10-22
THE STAY LAW.

written by gentleman who is both a Lawyer and
a Statesman
From the Observer
THE STAY LAw-Every law of this kind is
based on the idea that whenever parties shall make
a contract and it shall become difficult to
perform it, when the time for tulhlment
arrives than it was when the contract made,
it is proper and expedient that the Legislature In
terpose and give longer time to the obligor than
was agreed on between the parties, for the per-
Torrance OF his undertaking. The Legislature
must necessarily be the judge whether, from
scarcity Of money or other cause, performance Is
more difficult, at the maturity OF the contract,
than it was supposed to be when the contract was
made. No Legislature has ever attempted to
shorten the time of performance where owing to
abundance of money other cause, 1t IS easier
to perform, at the maturity OF the contract than
the parties supposed when the contract was made,
though no reason Is perceived why the rule should
not work both ways. If this power exists In the
Legislature and ought to be exercised, there is no
limit to its exercise, excepting the Legislative will
If it may postpone payment for year, it may
postpone for five, ten, or fifty years. 1t is con-
tended by some, that so many evils grow out OF
what is called the credit system, that Society
would be benefited by total abolition Of credit,
by allowing a creditor remedy against default
ing debtor. 1t is difficult to conceive how any
rational mind can arrive at this conclusion, since
every one must know that from the very nature
of man, civilized or savage, there Will exist some
degree of confidence between man and man, and
that he who promises should be made to perform.
Stay laws were generally enacted during the Rev
olutionary war Our ancestors therefore had the
benefit of experience to their effect. The result
of that experience was the clause in the Constltu
ton of the U. S.-whch is retained in the Conted-
ate Constituton-prohibitin any State from pass
ing any law ''impairing the obligation Of
tracts" This prohibition applies as well to
state of war to state of peace. Notwit hstand-
ing this prohibition, growing out of the bitter
experience Of the revolutionary stay laws, in the
very next war, only some twenty-five years after
the adoption of this sautary provision Of the Con-
stitution, the General Assembly of North Carroll
ma, i'll the year 1872, passed an act providing that
any Court, rendering JUDI ment against debtor
for debt damages between the 3 LIST of Deem
Der in that year and lst Of February 1914, shall
stay the same until the first term or session of the
Court after the latter period, upon the defendants
giving two treeholders securities. This act in
the case of Jones Crittenden, l Car. l.. r: p
$50, was declared unconstitutional. 1t is refresh
ing to read the opinion of Chief Justice Taylor in
this case. 1t exhibits the purity and elevated
conscientiousness Of the man, the elegance, per-
spcuity and force of juridica style, and profound
The act declared uncOnsttu-
tiOna In this decision there has been universal
but in the session OF lS6O6l before
War commenced, attempt made to pass an
other stay law and at the extra session one was
passed, which at the June Term Of the Supreme
court declared unconstitutional. At the second
extra session, commencing in August last, joint
select committee was appointed, who seem to have
their wits how to enact law intended
to hinder creditors and impair contracts
in such shape that the Supreme Court, in which
there is still respect for the Constitution, should
not be able to declare it void Their study SEEM
ed to be, not how to pass constitutional law on
the subject, but how to e0ude the Supreme Court
and at the time, in spirit and effect, to vio
late the Constitution by giving longer time to
debtors without any security to creditors, thereby
the contract in a much greater degree
than did the act of 1872
1t is conceded that the Legislature may consti-
tutio nally alter and reform the judicial SYSTEM
and the rules Of pleading in order to improve and
facilitate the administration Of justice-a power
which h as been often exercised in abolishing ju-
y trials in many Of the County Courts of this
State. This has been done generally in Counties
where there little litigation, and the Superior
Courts were supposed to be sufficient to try all the
ury cases. In these counties one Of the effects or
Incidents of abolishng the County Courts was to
lclay creditors, but such rot the object Or
(cStYH. IL his committee resolved TO pass stag
az under the specious title of "a bill to change
he jurisdiction Of the Courts and the rules of
pleading therein and SO to frame it that the |
Supreme Court could not judicially see that it
was a stay law under the gutse of act to improve
he administration OF justice-aud here let me |
quote few passages from the opinion of the |
supreme Court, delivered by Judge Taylor, in the :
case to which | have referred, bearing directly on
his plan of evasiOn:-
An argument urged and much relied on by the de- |
endants counsel is, that the law in question bears
V the remedy, and is therefore within the sphere of
legislative authority But if in doing it violates the
is it less inv aid, that if it directly
touched and annulled the right Every will agree
hat law which should deny all creditors the right
If institutng the action of debt covenant assumpst
bill of Chanccry, would invade the Constitutions
law which should limit the recovery of all debts
short period after its passage that it would be
impossible, according to the of the Courts to
obtain Judgment would also be null and void
Though such laws, ostensibly bear only RENE
ly yet they do ill reality annihilate the right. The
aw before 1t is conceded, does to the extent
If either instance, yet it certainly dimnshes the i'm
and value of the right. 1t is ditc ult to con-
eive how law could otherwise impair an existing
light than by Withholding the remedy, which is in cf-
ect to suspend the right
The undoubted right of the Legislature alter and
eforn the judicial SYSTEM may is said proGuce de-
ay III the execution of contract equal that which
Esults from the present law and it urged that all
uch acts must: upon the principle, declared
lncon Stitutional."
1--WE cannot acquicsce in the final conclusion drawn
rom these premises which, without hesitation W { ac-
knowledge to be correct
''A such laws. the Legislature has unquestiona-
lie right to enact, right which the people have never
surrendered, and the of which is forbidden
the Constitution OF the limited