The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1870-04-28
Barnvyell vu. tBlaiokvilis.

-
pei, by!mandauhs, the restoration of the
word ...Barnweli," erased by the Secre-
tary Of State from the Code, and to COM
pei the giving OF certificate of this por-
ton of the Act as it was enrolled and
ratified. AS the case excited general in
terest, we publish Judge Melton's opin-
ion, emitting tho statement of the plead
ings and facts, with which our readers
are already familiar, and including seve-
raj material paragraphs, which, in the
publication made by several of our con-
temporaries, were omitted:
Whilst disclaiming the imputation of
improper motives, on the part of the
Secretary of State in making the erasure,
the argument of the counsel for the rela
tors in denial of his authority thus to
spoliate an enrolled Act of the General
Assembly, is clear and conclusive. That
he was personally charged, by inference,
with the supervision of the clerical force
employed in the work of enrolment.
seems to be an Indifferent matter. It
ceased to have relation to his duties the
moment when the parchment was de-
livcred TO the "Committee on Enrolled
Acts" It then became the duty of this
committee to see that the will of the Le-
gislature was therein truthfully express
ed. and it is theirs to bear the response
bility of any dereliction in this high and
most important Office. In reference to
enrolled Acts, the law does not in terms
the Secretary of State, except that of
publication. It has been the custom,
however, in this State, to entrust them
to the custody of his Office for the fur
ther purposes of reference and safe keep
ing. Beyond these purposes, he is to
them an utter stranger-more Indifferent
than the adjutant to the orders of his
commander, or the clerk to the records
of the court of highest resort.
Tho consideration of this proposition,
if it can be entertained with patience, is
simply idle; there can be no doubt about
it. It was to avoid the remote contin-
gency of spoliation that the solemn forms
of ratification were provided in the early
history of Parliament, and have been
with so much Of ceremony observed to
this day; forms sufficient in themselves
to suggest that O writing so attcsted must
be held sacred-not to be profaned by
any hand-not to be altered even by the
powers that made it, save us other laws
are changed, through the prescribed
forms of legislation. (Black. Com. 1867
The discretion to alter a word, whatever
the motive, implies the right to alter n
paragraph or section, or, indeed, to
blot from the statute book the whole
body of our laws. Among the statutes
of our State instances of clerical error
in enrolment will be found-errors
which were denounced by the people
upon whom they worked hardship and
fraud; but which, whilst they were cured
by measure of repeal, remained as they
were written. untouched. Such errors
may again occnr; yet, whatever of wrong
may thereby ensue, bears no comparison
to that which surrenders solemnly rati-
| fed Act of the Legislature to the discre-
| ton, however wise, of any authority
whatever, by mere dash of the pen, to
make the laws and put in jeopardy the
liberties Of the people.
| But it does not follow from this con-
cluson that the writ must issue To
make this plain. it is necessary to cite
authority, in definition of this process,
and of the rules which control the court
in the exercise of this high and cxtraor
dinary prerogative.
Sir VIM. Blackstone, Com 10, de-
fines the writ Of mandamus at common
law to be "a command issuing in the
|
aud directed to any person. corporation
or inferior court Of judicature. within
the Kings dominions, requiring them to
do some particular thing therein speci.
| fed, which appertains to their Office and
duty, and which the court has previously
determined, or at least supposed to be,
consonant with right and Justice"
, In England. it is denominated pre-
rogative writ; because. the King being
the fountain Of justice, tits nterpo,ed by
his authority and transferred to the
Kings Bench, to prevent disorder from
a failure Of Justice, when the law has cs-
tablished no specific remedy, and when
i'll Justice and good government there
ought to be one. In America, the au-
thority to issue this writ does not exist
as a prcrogative power Of tho courts,
bnt is derived by grant from the govern
ment, through the constitution or legis-
lative enactments. (AIoses, on Munda-
mus, l6, 17.)
1t is grantable where person has
legal right to insist that certain net
i II, 4