Year: 1868

vestigation Of the single question in thi
cause. On this alone it was srgu ed, heard
and decided below. No excuse, how
ever ingeniously suggested, exists t
avoid it here. It must be met unde
the pleadings and the decree. It is ,
question of magnitude, not only because
of its consequences to the parties
and its bearings upon tho community a
large, but more especially because of tn,
delicate and responsible nature Of tn
function required of this court. True, i
is not question of dimensions CORE
spending with the extensive range of th,
argument. It has been disc ussed as if in


volving all the provisions of the act Q
March 2, 1866. No special attention wa
given to the particular clause of the &C
embracing sales under deeds of trust, no


any inquiry made to distinguish it from
the suspension Of judicial process under th,
same act. Both in the argument here ant
the opinion of the court below thes,
provisions of the act were for the mos
part confounded, and assumed to rest upo,
the same ground or, at any rate, if tht
discrimination was incidentally suggested
1t was not developed with such clearnes


and precision as to display the iinpropriety
or avoid the necessity of pronouncing OF
the constitdtionality Of the whole law


Had more attention been paid to this dis


sinction, and greater pains taken to treat
this particular enactment separately ano
apart from other parts Of the statute moi
involved in this controversy, I venture tc
suggest it would have greatly abridged the
argument and involved far less Of the me-
taphysical. reinements and speculations
that have confused the opinions o.
the courts on the difference be.
tween the obligation and remedy of con


tracts; to such degree as to'leave the
doctrine on that point in most unsatisfac


tory state of uncertainty and perplexity


1t is, however, the manifest duty of this
court to confine itself to the issue made BY


tho pleadings, and to abstain from expires


sions or intimations Of opinion which would


be extrajudicial, and might be deemed 6
departure from the reserve usual on such
occasions.


Our inquiries must therefore be con


fined to that clause of the statute forbid


ding sales under deeds of trust until the
lst of January, 1868; which period was
extended by subsequent act to the 1st Of
January, 1869. This throws out of our
consideration the vexed question of the
authority of the Legislature over judicio
process and remedies to enforce contracts,
aud will limit our investigations to the
palmer doctrine of legislative action
upon the obligation as contradistinguished
from the remedy arising out of contracts.
This position, however, shall seek to put
in clearer light in subsequent part OF
this investigation. For the present, de-
sire to preclude all or any expectation OF
my being betrayed into any opinion upon
such parts of this statute as are in
no wise involved in this controversy,
and to express my belief that salts
factory decision Of this cause can be
reached without embarrassing ourselves
with the intricate and conflicting views to
which l have alluded, and without under
taking to decide the constitutionality or
uncoDstitutionality Of the whole statute.


1t has been remarked upon as curious
circumstance that the trainers of the Con-
stitution, in laying down barriers against
legislative invasions Of private rights,
should have omitted to provide any posi-



should have attached no sanction or
penalty, and been silent as to the mode in
which the fact of violation was to be
established or the prohibition enforced.
(Sedgwick on Stat. and Const'n Law, p.
AID But it would seem that the nallity of
q law repugnant to the Constitution was
enough to maintain this bulwark against
legislative encroachments. A resort to the
courts must be had to test the validity or
assert the supremacy Of laws; and the
interest of persons affected by them fur
nishes an active motive and an imperious
necessity for such resort. In this way
the judiciary takes cognizance of such
cases, and is clothed with authority to pre-
vent the ministerial officers of justice from
obeying an act of the Legislature transcend
ing its prescribed powers, aud for that rea-
son void. Hence it is now we'll settled that
it falls within the peculiar province of the
judiciary to protect the citizen against all
infractions of the Constitution touching his
rights; and no higher protection or guaran-
tee, it seems to me, could be given than is
found in the practical administration of
Justice under the restraints of the Consti-
tuition and the solemn sanctions Of an official
oath to support it. While, therefore,
due respect to the Legislature exacts of
the Judiciary the cautious rule which it
has always professed and acted on, of ex-
erting its high prerogative Of denounciDg q
law as unconstitutional only in clear cases,
and of resolving all doubts in favor of the
law, nevertheless it would be culpable
surrender of its independent Judgment and
coordinate authority if it could be led by
motives of Difference or delicacy on the one
hand, or the fear of responsibility on the
other, to find shifts or excuses for denying
the protection which the fundamental law
of the land ordains to private rights against
legislative violations. / would magnify
rather than underrate the respect due from
this court to the Assembly whose laws it
administers. That sentiment, however,
inspires no blind and servile homage; on
the contrary, respectable caution and
after the careful consideration which it Sc
cures, imparts to an adverse judgment the
weight to be derived from these proposes
sions against such judgment, and the reluc-
tance with which it has been formed.


These considerations are much enhanced
in this case by the caution and delibera-
ton which marked the passage of this act.
IF any part of it be repugnant to those
which the members OF the
as well as ourselves, are bound
to observe, it was because OF no lnadVert-
ence on their part, nor of any failure to
examine the grave challenge of their COM
petency in the premises. The able and
ingenious reports by which this law was
advocated proceeded from committee
comprising the highest legal talent of the
State, and who advanced a ne.o theory for
the justification of the law. The pream:-
BILE of the act itself attests the direct and
snecial consideration which the Assembly