Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1862-01-29

- To prevent the Supreme Court from exercising
its proper functions and declaring the act yod AZ i
did the Stay Law passed in May last-for fear! the
Court would do so-for fear it might do so-for
fear! it ought to do so-the Legislature assumed
the power to change the time of holding the terms
of the Court until the act could operate and accom-
plish the end contemplated by its authors. It" tied
up" co ordinate branch of the government for
aioAils. If am asked how I know this was the
purpose had in view answer first that the natu
raj effect of the act shows this to have been the pur
pose, and contemporaneous debates and the records
of the Legislature show the same. 1t may be added
that but for this reason, there q total absence
of motire for exercising the high, unauthorized and
dangerous power Of interfering with the Supreme
Court.
But it is not material for my present purpose how
the court might have decided upon the act in cues
ton. The question is had the Legislature legitimate
power to interfere with the Supreme Court, the
Supreme Judicial Power of the State, co-ordin. tie
branch of government with ITSELF so as to prey cnt
it from exercising its proper functions? 1t is denied
that the Legislature has such power and insisted
that the exercise of the same whether intended so
or not. is usurpation & power highly dangerous
to public liberty, without parallel i'll the history Of
this State, if not in this country and too that
ought to be noted by the people at once and as
promptly checked
If the Legislature has such power, from what
source does it derive it? 1t cannot be pretended
that has it by the express letter of the Consttu
ton. There is no language or clause in that nstru
ment that will bear such construction. Then, if
it exists at all, it does so by implication. Let US
suppose this to be SO. To v hat extent docs the
implication go? What is the measure of the implied
power? Who, or what tribunal is to determine the
measure? None is pointed out by the Constitution,
and under the suggestion Just made the Legislature
must be the judge OF the measure of power and the
sole judge Then the legislature in that respect is u-
restrained. Let US see to what this may lead: If
the Legislature has power to provide that the Su-
prcme Court shall not meet but once in twelve
months, 1t has the power to require hat it shall not
meet but once in five years but once in ten or twenty
years, and by virtue of the same power, it may
abolish the lour absolutely and the whole judicial
system. If this is true, the Legislature might pass
any act, however odious and oppressive, and how
ever violatve of the Constitution, and the people
must submit to it, or resist BY By tcrcc !-by nims!
There would be be no authorized tribunal to declare
such act void The cAech would DC destroyeA-in-
capable of performing its functions.
1t will not do to Say it is net probable the Legs-
lature will exercise such power for We see that it
has done so, and we have no warrant that the next
stretch of power will not destroy al;ogethera co-or-
dlnate branch OF the government, to the end that
unconstitutional acts may operate. BESIDES, the
OUJctI vi d IL 10 CUT Oh possible con
tIngencies of the character indicated Experience
teaches US that men are fond Of the exercise OF
power, ard it will not do to trust them too far with
the liberties of the people; and hence the restraints
imposed upon legislative bodies in all well regulated
governments 1t is absolutely necessary to cut Off
by constitutional provisions all possible motives to
exercise unauthorized power, by creating concori
tant checks that will certainly destroy any and
every attempt to exercise them. If the Legislature
has the power over the Supreme Court to destroy
it absolutely, or TO posone its terms at WILL then
the deduction that it may pass any unconstitutional
act and force the Court to allow it to opeTute is
true. This cannot be. If so, then the Ccns,itu-
ton is nochery, untrue to ITSELF to the people,
and to public liberty. Does any one believe that
the trainers of the Constitution intended such
implication? 1t involves an abSurdity. 1t leads
directly to the destruction of the Constitution ITSELF
and the implication does not, cannot exist But
there is necessity for such implication. Indeed,
there are powerful reasons why it should not exist
some of which have been limited at. We have seen
that it might result in the absolute destruction of a
coordinate branch of the government. VIII it be
said that the present necessity for "stay law"
shows the importance and necessity for such mpli-
cation. This is not SO, for if the act is not
rdnted by the Constitution, then it ought not to re-
main in force and if it does not violate it. then the
Court could do no harm, but much good III the dis
charge of its regular business. There is no con-
ceivable in which there is necessity foT inter-
fering with the Court. If the Legislature keeps
within the bounds Of the Constitution then its acts
will he valid. 1t has no right-no authority from
the people, to go beyond these, and when it does,
the Court ought to so declare 1t is the duty of
the Court to 90 So 1t was established in great
part for this purpose. 1t is absolutely necessary
as check in government. 1t is one Of the 6ulcarks
of the liberties of the people. If it had been
deemed by the people wise and prudent to allow the
Legislature occasionally, in its discretion, to pass
the formation of their organic law, they would have
made such provision. But they made no such pro-
vision, and the Legislature, tine creature of the
Constitution, had no right to override it, and a
check on that body is necessary, and has been pro
vded as indicated. The system of semianmual
terms of the Courts existed long anterior to the
adoption Of the Constitution and this has been kept
up with the exception of shortperlod bJoreits adup
ton, uniformly, down to the passage of the act in
question. The system exists by uniform and unin-
terrupted usage. The Constitution recognizes the
system through its whole length, and indeed it may
be claimed as part Of 1t. 1t recognized the semi
annual system at the time of its adopton-it went
into operation with this system ard by express re-
ccgHition by implication and necessity it became
part of the Constitution itself The amended Con-
Stitution adopted in 1885 recognizes the Courts as
permanent System Ii 1t did not, the work Of the
trainers of that instrument was imperfect as we
have seen. This is not probable. And We are not
left to reason alone upon this point for shortly after
the adoption OF the Constitution, the Court declared
an act of the Legislature void and has uniformly
exercised that power down to the present time
With an experience of over century, the people
of the State have not found it necessary desirable
or practicable to depart from the uniform seniannual
terms OF the Court and our fathers passed through
the revolution OF l776, through the war of 1872,
through many monetary presSures, and through all
the storms attendant upon national existence with
out once thinking OF changing the terms Of the
Court to other than semi-annual terms.
The Legislature struck a powerful blow at free
institutions in the passage of the "Stuy Lav Oct"
whether intended not and much as its effects arc
felt and deprecated practical measure of legis.
atlon these are not to be compared with the effect
had upon the government ofthc State and the danger
Gus precedent set. That body not only undertook
to pass an unconstitutional stay-lau" but it went
farther 20 make this act operative, and "tied an