The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-04-06

fuyio3ab lfty OF contracts, pubic Anu spriss
yate,i iis the foundati ION Of oil social pre-.
gress, md the cornerstone Of sall forms OF
society wherever enlightened iurispru.
dencc prevails, aud i concur with him now
In what be has said on that subject. GOOD
'indtviduals; neither can be just or perma-
,,ey,tly prosperous without it. Upon that
subject, my own voice, feeble as It Is, can
never have any uncertain sound. but, now
ever, political, = DC. Il
The harbour BilI---Jutage asapIes's
Dissenting Opinion.
The following is 30 exhaustive, and con-
elusive an argument against the constitu-
tionality OF the BARBOUR bill, aud incident-
ally against the dissenting opinion OF Judge
staples in the. CLARKE case, that we cannot
deny to our patrons the pleasure Of reading
it for themselves. It is from the pen OF
an accomplished lawyer Of this city, and
is fortified BY quotations from the highest
authorities: sl ~
The able and noble veto message OF Gov
ernor Holiday has SO completely demolish-
ed the Barbour bill that charity would seem
to accord to that defunct experiment the
mercy OF silence; but sense OF justice re-
.uuires that the unprofessional public should
know how unfounded was the very corner,
stone upon which that bill was based, and
how futile was the attempt thus made to
eyade and override the decisions OF the
courts. Its difficult indeed to believe that
the learned and distinguished legal gentle
men accredited with the authorship OF the
bill could have had any important or practi-
cal part in drawing it or in giving advice
about its provisions. The Court OF Appeals
having lin Antoni Us. Wright, % Grattan,
S33) approved the constitutional validity OF
the funding act, the great and real object OF
the Barbour bill seems to have been to elude
that decision, or to neutralize its effect, by
rendering the bonds issued under the act
practically worthless, and thus compelling
Il compromise. The theory OF the bill ap-
pears to be this: 1. That the condition of
the people of the Commonwealth is such as
to render an increase OF the rate Of taxation
upon property impracticable. 2. That the
duty of paying the expenses OF the Seate
governments animperatiVe and paramount
necessity. 3. That the obligation to raise
the school fund is a constitutional duty OF
superior dignity TO any other claim than that
OF paving the necessary expenses OF the
Government, and, therefore, that these two
claims must be first met; and hence that ii
taxation cannot be increased the holders OF
the State bonds can only get what, il any,
thing, is left after the satisfaction OF those
two demands.
It is obvious that the first alleged fact Is
the foundation Of the whole superstruc-
ture. Hence the bill commences by
reciting that alleged fact. g Whereas"
it says, ethe condition of the peo-
ple of this Commonwealth is such as
to render an increase of the rate OF tau
alton upon property inapracticable." The
recital of that alleged fact in the preamble
was designed to render its supposed exist
ence conclusive upon the, courts. The
courts We're bound to assume it to be true.
Ii that was not its object, it had no
other so far as the courts were concerned;
and TO establish that fact upon an impreg-
step in the argument for the constitution
atty Of the bill.
II it could be assumed without inquiry or
dispute as q fact that further taxation was
impossible, the logic Of the bill was thought
to be complete; and, therefore, the pream-
Bile recited that to be fact, and it was
either intended that the courts would be
concluded by that recital, or the recital
meant nothing in legal aspect There,
however, was the great mistake. Nothing is
better established than that the recitals OF
alleged facts in the preamble OF an act Of
the Legislature do not bind third parties.
In this country they are, in courts OF JUS
tice, not even prinaa .facie evidence Of the
truth OF what is alleged, so far as third per-
sons are concerned. They are admissible
in evidence certainly, but the courts are
perfectly free to receive and consider other
and contradictory testimony. And such is
the settled law in the United States. 1t
would be pretty thing. indeed, il the Le-
gislature, by its mere yolition, could manu-
facture or alter facts at its pleasure to suit
the exigencies OF public policy or party
strife, and bind the world by its ulcaSeS.
II that were true, it might legislate the fact
of the public debt itself out Of existence
simply by Il recital in preamble to that
effect-an achievement which it could ac-
complish directly by bold statement
or representation of the alleged fact,
as well as it could indirectly by the
statement or representation OF other al
legged facts which render the existence
OF the debt practically futile and nuga-
tory. How would it do for the Legis-
iature to recite in the preamble OF a tax bill
that all Of the people Of Virginia were
plethoric with gold and silver, and there
fore that they could bear taxation in one
year sufficient to pay the whole public debt?
Would that make it factp How would it
do, on the other hand, to recite in such a
bill that the people OF Virginia were all
paupers and could pay no taxes at all?
WouId,that make it fact? Obviously it is
not within the scope OF legislative power,
either in the recitals or in the body
Of law, to create or uncreate facts.
And it Is equally obvious, in the nature of
things, that il it cannot create or destroy
facts it cannot prevent judicial inquiry in
case under Judgment in court of justice
as to what are facts and what are not facts.
81 remember" said Mr.. Webster, CT re-
member to have heard Chief-Justice Mar
shall ask counsel, who was insisting upon
the authority Of an act Of legislation, If he
thought an act of legislation could create Of,
destroy q fact, or change the truth Of his
torYy Would it alter the fact, said the
Chief Justice, il q legislature should SOL
EMMY enact that Mr.. Hume never wrote
the history Of England?" ga legislature
may alter the law" continued Mr. Webster,
"but no power can reverse fact."-2d
vol. ,Webster's works, p. 331. SO In
his recent Constitutional and Political
History Of the United State learned
foreigner, (Von Hoist, vol, 1, p. ~,
motel, speaking OF certain TACT, eX-
presses the same truth: "ThiS fact feX-
plains all the internal conflicts OF the Union
IN to the year 1865 and this fact could not
be tegislated oatt OF existence, or cease TO De
a fact, IN consequence Of q spontaneous act
of popular 0olition." Nor can the fact Of
the ability or the people OF Virginia to pay
taxes be legislated out OF existence, OF
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