The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-20
n ,,.e,, the statute ofIlliBois had 10 such

because the STATUTE ot1nlDOi6 hd4 NOSoSn
limitation; its denial Of execution was
perpetual except on terms not originally
contemplated; aad therefore it not merely
impeded the remedy, but changed the con
dition of the right. There was peculiar
consideration, however, which swayed Ing
mind Of this able Judge; aud wa, stateo
by him in these words: i" The case 10 oy NO
means. a clear one and as the decision %
II involves the validity of other acts OF ne
sar,e stamp, it is worthy of being orousns
Iefara the' Supreme Court of the nation,
To mt the case in train for that, IL "oulu
ba necessary for as to sustain the statute as
81, assn,s for the appellate jurisdiction
~ dat court extends no further than to
oasaa IN which the Judgment is in favor Of
the hesitation or authority to which the
Fcderai Constitution or an act of Congress
Is supposed to be repugnant; in other
words. it extends no further than is neces-.
sary to maintain the supremacy Of Federal
legislation"
I have thus reviewed and cited the lead
ing decisions, Federal and State, upon the
doctrines I have been discussing, and /
cannot but regard that the decided weight
of authority is on the side Of the appellee
In tHlS COutEUSStSys Ant 1hpkhOi WV "
this subject has been submitted in the two
reports of the, House Committee of Courts
of Justice--one of which constitutes
part of this record, and the other was
given us in the argument. They are an
authoritative exposition Of the views OF
the Legislature on the passage of this stay
law, and, therefore, demand special no
tice. Their theory, as have already said,
is original, and is not found in any of the
numerous adjudications upon this subject.
1t puts the legitimacy of such legislation
upon analogy to the authority Of courts OF
law and equity to restrain the creditor in
his remedies in certain given cases; as, for
instance. where sheriff is required to re-
turn. &c no sale for want Of bidders y;
where, between vendors and purchasers,
Ct time is not Of the essence OF the con-
tractn: where courts OF equity intervene
to arrest a sale till the amount and priorl-
ties of rival membranes are settled, and
a cloud of title removed and to set aside
sales for, inadequacy of price, to REOPEN
biddings, &c.; in all which cases the
creditor is delayed. 1t is, contended that
cit would be an anomaly to leave the
courts free, by what is mere Judicial legis-
lation, to impair the obligation of contracts
in this feature Of time, and yet to deny
this power, within the same proper limits
of principle, to the Legitimate possessors Of
all legislative power, the Legislatures
themselves" To enact this stay in the
collection of debts is, says the committee,
"but doing that broadcast, where broad
cast necessity exists, which the Judiciary
would do substantially in the individual
{hax, hnfora II ;, and fr1r
Their, on this principle of legislative power,
"to do broadcast what courts do in indi-
vidual cases." the committee seek to JUS
tify this stay in the collection of debts
"by these examples of the exteut to which
judicial tribunals will delay creditors and
suspend their legal remedies to prevent
sacrifice of the debtors property."' This
is literal and concise statement Of the
plausible and ingenious defence that has
been made of this law by this able COM
mittee. With entire respect and Difference
to them, must be permitted to say, that,
in my opinion, there are three distinct fall
lacies in this reasoning, any one of which
would subvert it. First, it is not true,
according to my humble conception, that
the jurisdiction or action Of the courts in
these cases at all deserves the character
imputed to it, Of "mere judicial legislation
to impair the obligation Of contracts IN this
feature of time" SO far as know, it has
never been placed on that ground. 1t ex-
listed, as the committee acknowledges,
when the Constitution was adopted, and
"must have been familiar to its trainers"
No effort was made to restrict it; and
hence the inference is irresistible, that no
grievance Of the sort was imputed to the
courts. have heretofore endeavored to
show that this Judicial cognizance Is predi-
Gated in all cases, of the faculty of the
courts to administer the remedies which the
State ordains and that all contracts are,
through necessity Ito use the language OF
Justice Johnson in Ogden Us. Saunders,
already quoted), construed, applied, and
controlled IN tie State" through the me-
dunn of its courts. The princip pies of
equity, as administered from the earliest
period, will arrest the literal enforcement
of a contract, when, from the causes as
signed, as for cloud Of title, or conflict of
membranes, &C., it becomes unconScion-
able, and is subversive of the true inten-
tions Of the parties. And this, must say,
is the first time have heard this whole
some jurisdiction Of the courts character
lied as tjudicial legislation to impair
the obligation Of contracts in this matter
of time" Secondly. 1t is not true that
because the courts can administer such
relief in certain prescribed cases the Le-
gisla,ure can be justified by the analogyto
assume wider range by law. 1t would
seem that the fact that the courts can re-
lieve in such cases, instead of justifying
the Legislature in such a questionable
policy, would be strong motive to re-
strain such legislation. Inasmuch as
some of these cases of hardship are
relievable by the courts, the mischief
apprehended by the lawmakers would
to that extent be abridged. But
the judicial and legislative functions
are, in truth, too dissimilar to justify
such an analogy-the courts act upon in
dividual cases, and upon proofs and plead
ings; the inhibition upon the Legislature
proceeds, in great measure, from its in
capacity to act in the premises otherwise
than broadcast. Thirdly. 1t cannot be said
with propriety "that The Legislature may,
aoherethe necessity for such Interference &C.
istS, do broadcast aehat courts do in indiui.
dual cases." The very contrary is true. If
the assertion was narrowed to the claim
to compass by law what courts do in indi-
vidual cases, the most careless inquirer
would be startled by such pretension !;
and by the actual obliteration it occasions
of the dividing line between these depart
ments Of the government. But the offence
is greater when this pretension is SO en-
larged as to embrace the alleged power
"to do broadcast lehot the courts do in indi-
vidual cases." 1t might seem enough to
Al IS -