Historical Newspapers of South Carolina

Below is the OCR text representation for this newspapers page. It is also available as plain text as well as XML.

The Daily News? WEDNESDAY MORNING, SEPTEMBER 5, 1866. TUG Stay Lair Unconstitutional. t - OPINION OF THE COURT OF ERRORS. The State vs. John E. Carew, Sheriff Char? leston District. GEORGE SHAKLOCK VS. B. M. RIVERS. In the Court of Errors, Columbia, May, I860-Dun? kin, Chitf Justice. On 21st December, 1861, the Legislature of South Carolina passed an Act entitled "An Act to extend Relief to debtors and to prevent tho sacn flee of property at public sales." ... By the first section it is provided that It snail not be lawful for any officer or this State to serve or execute anv mesne or final process ot any ol the Courts of this State for the collection of money until after the expiration of the first session ot the next General Assembly of this State, except in the cases therein after specially provided. This Act wan renewed in February and December, 1863-again in December, 1864, and in December, 1865, it was continued in force until the adjourn? ment of the next regular session ot the General Assembly. But, by the second section of the last mentioned Act, it was declared that nothing therein contained should be construed to apply to anv causes of action which might thereat ter ori? ginate; nor should any debtor be entitled to the benefit of the Act, who should fail, on throe months' previous notice, to pay his creditor, on or before 1st December, 1866, one-tenth of tho aggre? gate amount due at the time of demand; and ou euoh failure the creditor was authorized to pro? ceed lo judgment and execution, but that no exe? cution should be enforced for more thaD one-tenth as aforesaid during the continuance of the Act. Similar provision was made in regard to any debtor on final process at the time subsisting. The oaae first entitled is that of ? Rule on the Sheriff to show oauBe why he had failed to Ber ve the writ. The second case was a motion, on be? half of the defendant, to set aBide the servioe of the writ. The cause Bhown by the Sheriff was that the original cause of action was a money bond executed in February, 1860, and be relied on the prohibition of the Acts above recited as the justification of his refusal to serve the procesB. The cause of action in the second case was a due bill payable on demand in 1860. Tue rule against the Sheriff waa dieoharged, and the .service of the writ in the latter oaae was Bet aside by order of the Circuit Courts. An appeal waB taken upon the following grounds: Because the Aot of December, 1861, entitled "ad Act to extend relief to debtors and to prevent the sacrifice of property at publie salea, as triso the Act of 21st December, 1865, entitled "an Aot to amend the law known as the Stay Law," impair the obligations of contracts existing at the time of the passage of said Act ; are repugnant to the Constitution of the United States' and of this . State ; and are unconstitutional and void. _yhe cases were transferred from the Court of Appeals ??tne Court of Errors, as the highest tribunal in th? State, ft? adjudication. By 10 Section, 1 Article, Confitvuntion United States, passed 17th September, 1787, it ls declarea that no btate shalf. enter into any treaty, alliance or confederation, grant letters of marque and re? prisal, coin money, emit bills of credit, make anything but gold and silver coin a tender in pay? ment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. So, in the Constitution pf the State of South Carolina, adopted 3d June, 1790, 9 Article, 2 Section, it is declared, "nor shall any bill of at? tainder, ex post facto law, or law impairing the obligation of contracts, ever be passed by the Legislature of thia State." A prohibition in the eame terms is adopted in the Constitution of this State of September, 1865. (Article 9, section 2.) It is neceaaary to determine what ia "the obliga? tion of a contraot" as a preliminary to the inquiry whether it has been impaired by Btate legisla? tion. The distinction between the contract itself and the obligation is thus stated in Sturges vs. Crowninshieid : (4 Wheat., 197): "A contract is an agreement by which a party undertakes to do or not to do a particular thing. The law binds him to perform hia engagement, and this is the obligation of the contract." In the ar? gument of that cause, Mr. Hunter remarked that "theJudges of the Btate Courte and of this Court have confessed that there is, in these words, 'im? pairing the obligation of contracta,' au inherent obscurity. They are taken not from the English common law, or used as a classical or technical term of our jurisprudence in any book of author? ity. Wore they furnished from that great treas? ury and reservoir of rational jurisprudence, the Roman .'law ? We axe inclined to believe thia. The tradition is that Mr.. Justice Wilson, who was a member of the Convention, and a Scottie} lawyer, and learned in the civil law, was the author of the phrase." Whatever may be the correctness of the tradition," the term "obligation" is certainly recognized familiarly by the Roman juristB as de? noting the legal tie which imposes a necessity of doing or abstaining from a particular act aa dis? tinguished from the imperfect obligation arising from gratitude, charity or other moral duties, binding upon conscience, but having no legal remedy for their enforcement. This latter is the essence of the legal obligation. Sub hac condi Hone, si volam, nulla fit obligatio. (Corpus Juris, Book 44, Chapter 7, Lex. 8.) According to the Roman law, where the right of action is destroy? ed, the legal obligation ceaBes to exist. Cum nulla subest causa constat non posse constitu? obligation em. (Corpus Juris, Book 2, Chapter 14, L. 7, ? 2-4 de pacti*. ) In Ogden vs. Saunders, 12 Wheat., it is said "the obligation of a contract, as spoken of in the Con? stitution, ie a legal, not a mero moral, obligation; it ia the law whioa binds the party to perform his undertaking. The obligation does not inhere or subsist in the contract itself proprio vigore, but in the law applicable to the contraot; and this law is Lot the uhiveraal law of nations, but it is tho law of the State where ihe contract is made. Auy law which enlarges, abridge- or in any manner changes the intention of the parties resulting from the stipulations in the oontraot, necessarily impairs it. Adverting to these principles, Mr. Justice Trimble, who acted with the majority of the Court, thus expresses himself: "The great principle intended to be established by the Con? stitution was the inviolability of the obligation of contracts as the obligation existed, and was re? cognized by the laws in force at the time the con? tracts were made." "Whether the law professes to'apply to the contraot itself, or to regulate tho remedy, it is equally within the true meaning of the Constitution, it' it, in effect, impairs the obli? gation of existing contracts. I do not mean to say that every alteration of the existing remedies would impair the obligation of contracts; but 1 do say, with great confidence, that a law taking away ali remedy from existing contracts would be manifestly a law impairing the obligation of eon tracts. On the other hand, a great variety of in? stances may readily be imagined in which the Legis? lature ola ?tate mu ht altor, modify or repeal exist? ing remedies, and enact ottiersin their stead, with? out the slightest ground for a supposition that the new law impaired the o ..ligation of contracts. If there be intermediate eses of a moro doubtful character, it will be ti: 1.4 enough to decide them when they arise." In Mailar os. Bush, 1G John, lt., 233, Chiet Justice Spence,' commented on the case Sturge.-. us. Crowninshieid then recently decided. Ho said he bowed to the supremacy of the Supremo Court of the United States upon the point actually decided, viz: the limited power of a Btate Legis? lature to p.ssbaukrupt laws. But in reference to the ( istinction taken between "a case impair? ing the obligation of a contract and operating di? rectly upou it, and a law affecting or modifvin? the remedy upon the contract, aud that the latter is under the control of the legislative power of a Btate," he proceeds thus: "Aud, although we may not feel the full force of the distinction, it does not become us to analyze the opinion, or to reason upon it anv further than to observe that the reme? dy is essential, in many cases, to the contract- and to modify it, BO as to frustrate the contract or render it less valuable, must have the indirect ef? fect to impair its obligation." The criticism of this distinguished jurist, thus respectfully intima? ted in 1819, has been vindicated by time anu ex? perience; and the manifest impracticability of preserving inviolate the obligation of the contract and recognizing at the same time an uncontrolled power ol State legislation over the remedy, thus pointed out by Chiet Justice Spencer, his been lelt and recognized hy text writers as well as judi? cial authorities lor the last forty years Chancellor Kent says: ?To deny ?ny remedy under a contract, or by burthening the remedy with new conditions and restrictions to make il useless or hardly worth pursuing, is equally a vio? lation of the Constitution." Again: "The better doctrine is that all effectual remedies affecting the interests and rights of the owner, exist? ing when the contract was made, become an es? sential ingredient in it, and are parcel of the creditor's right, and ought not to be disturbed, All suspensions by statute of remedies, existing when the contract was made, is more or less im? pairing its obligations." (1 Kent Com,, 419.) Mr. Justice Storv uses this language: "When we speak of the obligation of a contract, wo in? clude in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are denied, the obligation of a con? tract is understood to be impaired, though it may not be completely annihilated." (Story Const., ? 1381 ) Mr. Sedgwick says: "Looking at a contract le? gally and practically as an instrument by which rights of property are created, and on which they repose, obligation and remedy are strictly con? vertible terms. Take ?way the whole remedy and it is admitted the contract is gono. And it seems the only logical rule to hold that any legislation which materially diminishes the remedy given by the.law to the creditor at the time his contract is made, just so far impairs tho obligation of the contract." (Stat, and Const. Law, p. 652.) The alleged distinction between the right and the remedy waa pressed upon tho Court in Green vs. '.Biddle, 8 Wheat., 381. It was a case twice elaborately argued, and well considered. Mr. Justice Washington, speaking for the Court, Bays: "A right to land includes the right to enter upon it-to recover possession where withheld." Again: "Nothing can be more clear upon the principles of law and reason than that a law which denies to the owner of land a remedy to recover the pos? session of it when withheld by any perron, or which clogs his recovery of such possession by conditions and restrictions tending to diminish the value of the thing recovered, impairs his right to and interest in the property. If there bo no remedy to recover the possession, the law necessarily presumes a want of rieht to it. If the remedy afforded be qualified and restrained by 2on litiotis of any kind, the right of the owner may indeed subsist, but it is impaired and rendered insecure, according to the nature and extent of such restrictions." Twenty years afterwards ;hese principles came under review before the jame Court in Elronson us. Kincie, 1 How., 311. This latter case arose under what waa called "the valuation law" of the State of Illinois. The opin on was delivered by Chief Justice Taney. He jays: "Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obliga? tion of the contract. But, if that effect is pro laced, it' is immaterial whether it is done by leting on the remedy or directly ou the contract itself. In either case it is prohibited by the Con? stitution." He then adverts to the case of Green and Biddle and repeats the emphatic lan? guage there used by the Court: "It is no answer shat the Acts of Kentucky, now in question, aro regulations of the remedy and not of the right to the lands." "If these Acts so change the nature and extent af existing remedies as materially to impair tho lights and interests of tho owuer,"thoy are just as much a violation of the compact as if they direct? ly overturned his rights and interests." "We concur entirely," adds the Chief Justice, :'in the correctness of the rule above stated. It is difficult, perhaps, to draw a line that would be applicable to all oases between legitimate altera? tions of the remedy and provisions which, in the form of remedy, impair the right. But it is man? ifest that the obligation of the contract, and tho rights of a party under it may. in effect, be de? stroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceed? ings with new conditions and restrictions, so as to make the remedy hardly worth pursuing." He then cites tho authority of Mr. Justice Black? stone: "The remedial part of the law is so neces? sary a consequence of the declaratory and direc? tory parts, that laws must be very vague and im? perfect without it. For, in vain would rights bo declared, in vain directed to bo observed, if there (vere no method of reoovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law." (Black. Com, 55.) "It is that part of the municipal law" (the remedial part), continues the Chief Justice, "which proteots the right, and the obligation by which it enforces and maintains it. It is this pro? tection which the clause in the Constitution now in question mainly intended to secure. And it would be unjust to the memory of the distin? guished men who framed it, to suppose that it was designed to protect a mere barren and ab-r straot right without any practical operation upon the business of life. It was undoubtedly adopted as a part of the Constitution for a great and use? ful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout the Union; by placing them under the protection of the Constitution of the United States, And it would but ill become this Court, und?r ' any circumstances, to depatft" from the plain moaning of tho words used, and to sanction a distinction between the right and the remedy, which would render this provision illusive and nu? gatory, mere words of form affording no protec? tion, and producing no practical result." He then applies these principles: "The mortgagee is entitled to the aid of this Court; for this purpose it is his absolute and un? doubted right, under an ordinary mortgage deed, if the money is not paid at the appointed day, to go into the Court of Chancery aud obtain an order for the sale, etc. This is his right by the law of the contract; and it ie the duty of the Court to maintain and enforce it without any unreasonable delay." "When this oontract' was made, no statute had been passed by the State changing the rules ot law or equity in relation to a contract ol this kind." "They were the laws of Illinois at tho lime; aud, therefore, entered into tho contract, ?nd formed a part of it, without any express stipulation to that effect in the deed; and any sub? sequent law, impairing the rights thus acquired, inpairs the obligation which the contract ?mpos jd." He then oommenis upon the Act of Illinois )f February, 1841. "Tho observations already nado (says he) in relation to the other Act, applv ,vith equal force to this. It is true that this law ipparetitly acts upon the remedy, aud not directly ipou the contract. Yet, its effect is to deprive the )arty of his pre-existing right to foreclose, etc." In the following year tho same subject was dis? missed in McCracken vs. Hayward, 2 How., (JU9. The opinion of the Supremo Court was delivered JV Mr. Justice Baldwin. "Tho obligation of a con? tact (says he) consists in its binding force on the lartv who makes it. This depends ou the laws iu xisfence when it is made; these are necessarily eferred to iu all contracts, and forming a part of hem as the measure of the obligation to pei form hem by the one party, and the right acquired by he other. There eau be no other standard by vhich to ascertain the extent of either, than that vhich the terms of the contract indicate, accord ng to their settled legal meaning; when it becomes iousummated, the law defines the duty and the ?ight, conipolBoue party to perform the thing cou racteel for, and gives the other a right to enforce ho performance hy tho remedies then in force, f any subsequent law affect to diminish the duty, ir to impair the right, it necessarily bears on the ibligation of the contract, in favor of one party to he injury of the other; hence, any law which, in s o: oration, amounts to a denial or obstruction of he rights accruing by a contract, though profess ug to act only on the remedy, is directly obnoxious o tho prohibition of the Constitution. This priu iiple is so clearly stated and fully settled in Brou- , ion vs. Kincie, that nothing remains to bo added o the reasoning of the Court, or requires a roior u;co to any other authority than as therein refer .ed to." Alluding to the particular case under ?onsideration, "the ob igatiou of the contract be ween the parties in this ease (says Judge Bald- < vin) was to perform tho promises aud uudertak- : ngs contained therein; the right of the plaintiff i vas to damages for the breach thereof, to i.riug ; mit and obtain ?. judgment, to take out and pros- I ?cute an execution against the defendaut till the udgment was satisfied, pursuant to the existiug . aws of Illinois. These laws giving these rights t vere as perfectly binding on the defendant, and ; is much a part of the coutract, as if they bad sot '. Orth its stipulations in tho very words of the law t .elating to judgments and executions." "Any sub- t iequent law, which denies, obstructs, or impairs i ?bis right, by superadding a conditi m to the sale, ' fee., affects tho obligation of the contract, for it I jan be enforced only by a sale of the defendant's i property, and the prevention of such salo is tho ' denial of a right. The same power iu a State Le- . ?itlature may be carried to any extent, if it exiats ? nt all. If tho power eau bo exercised to any ex- ' tent, ita exercise must bo a matter of uncontroll? able discretion, in passiug laws relating to the remedy which are regarcuess of the effect on right of the plaintif. Thia was the ruling pri pie of the case of ironaon vs. Kiucie." The law of Illinoa prohibiting a sale under i cution for lesa thar two-thirda of the appra value, was held to le unconstitutional and v In Planters' Bani us. Sharp,'G How., 301, again in Curran vs, State of Arkaneas,15 Hi 319, these principles were re-affirmed, In former caae Mr. Jtstice Woodbury says: "' of the tests that a contract has been impaire that its value has b? legislation been diminisl It is not, by tho prohibition of the Constitu?: to be impaired at ali. This is not a questioi degree, or manner, Dr cause, but of encroach in any respect on its obligation, dispensing v auy part of its forte." (p. 327.) In the lal case (15 How.) the doctrine is well condensed Mr. Justice Curtis. "It by no means follows cause a law affects only the remedy, that it d not impair the obligition of a contract. Tho ligation of a contract in the sense in which th words are used in the Constitution, is that dut} performing it which is recognized and enfor* by the laws, and if the laws are so changed t the means of enforcing this duty are materii impaired, the obligations of the contract no loi er remain the same." This last case was decided A. D. 1853; and lately as December, 1864, in Hawthorne vs. Ca 2 Wallace,'10, the Supreme Court of the Uni States, by Mr. Justice Nelson, took occasion recognize and reaffirm "the principle decided Bronson vs, Kincie, and the several subsequi ?ases of this class," and held that tho Acts tl: under consideration BO seriously affected t remedy of the mortgagee as to impair the oblij tion of the mortgage contract within the meani jf the Constitution, and declared them void. It would seem superfluous to add that t <eries of decisions by the Supreme Court of t United States is conclusive upon this tribunal lettling tho construction of the Constitution up Iiis subject. But we are not, left without t ight of instruction from the adjudications of o lister States. During the war of 1812, when t people of our country were greatly harassed :heir affairs, the Legislature of North Caroli lapsed an Act staying execution upon judgmet mtil the first term of the Court after Februai 1814, upon the defendant giving security, &c. T Supreme Court of North Carolina held the law ie null and void, as violating the prohibition of t Constitution against impairing the obligation jontracte. (Crittenden vs. Jones, 1 Car. Law Re; 185. ) That case came under review before the sar. ribunal in the case of barnes vs Barnes, decid? Tune and Aug. term, 1861. The opinion of the Cou vaB announced by Chief Justice Pearson : "Tl )lea (says he) claiming for the defendants tl lenofic of what ia commonly called the Stay La' (resents for our decision the question of the co; titutionality of an Act of the last session of tl Jeneral Assembly, entitled 'an Act to provic .gainst the sacrifice of property, and to susper iroceedings in certain cases,' Our province is 1 ?ive judgment on the question of the constiti ional power of the Legislature to paBs th itatute. In tho discharge of this duty we aro ri ieved by tho fact that a question of such in ?ortance is not now presented for the first timi 0 as to put upon us the responsibility of makin ; decision on the strength of our own conviction or wo find that the Hue bas been plainly markec n fact, 'blazed out' by many previous adjudict ions, so that it can be easily followed ; and all w lave to do is to make an application of well ei abliehed principles." "Our opinion is that th itatute under consideration, so far as it oppose he rights of the plaintiff to a judgment in th )ourt below, or the motion for a judgment in thi ?ourt and for execution, ?B void and of no effec lecauee it is in violation of the Constitution of th Jnited States, &c. 1st. It is patent, by the fae if the statute, that it does impair the obligatio if contracts. This is nettled in Jones vs. Critter len, 1 Car. Law J., 385. In that case the argv neut is exhausted, and we only add, we con?u n it." Lapsley vs. Braahears is a case from Kentuckj 1 Litt. Rep., 49. The Legislature had authorize i stay of execution on judgments obtained prio ,o the Act, for one year, upon defendant's givinj lond to replevy, &c. The Court deolared th let null and void, as violating the prohibition c he Constitution. The opinion of Mr. Justic }weley, speaking for the Court, ia instructive 'But (says he) in a state of civil government, cou :racts may derive an additional obligation-ai ibliga tion which arises from the civil laws of th 3overnment, and whioh, but for the limitation ?ontaiued in the Constitution, might have bee: inpaired and totally annihilated by the Legisla urea of the States. This obligation operate lirough the medium of tho sanction of .the law ind co?"icto emphatically in those remedies whlcl he law supplies, and may ba denominated tb egal obligation." "The Act of the Legislature i n conflict with that provision of the Constitutioi if the United States whioh forbids aay State fron masing a law impairing the obligation of con ,racts." "By the Act in question, it is true tb ibligation of the defendant's prior oontract ha jeen entirely destroyed." "But during the tim* )f the replovin, whioh is allowed by the Act, al pre-existing remedies upon the prior contract an suspended, and the obligation of the contrac :hereby weakened and impaired. To be in con lict with the Constitution it is hot necessary thai ;he Act of tho Legislature Bhould import au actua lestruction of the obligation of the contract; it ii sufficient if tho Act imports au impairment of the jbligation. If by the Legislative Act the obliga tion of the contract be iu any degree impaired >r, what is the same thing, if the obligation ht iveakoued or rendered less operative, the Consti ,utiou is violated and the Act so far inoperative.' In the State of Mississippi the doctrine is that itated in Briscoe vs. Anketell, 28 Miss., It. 371: "Ii s too woll settled to admit of question at thc iresent day, that it is within the power of the State Legislatures to regulate the remedy and modes o: jroceodiug in relation to past as well aa to future jontracts. This power is subjoct only to the .estriction that it cannot be exercised so as tc ;ako away all remedy upon tho contract, or to ina jose upon its enforcement new burdens and re itrictions which materially impair the value and jenefit of the contract." But tho case of Coffman vs, Bank of Kentuckj s a recent decision of tho Supreme Court of Mis iis8ippi. Tue Legislature of Mississippi had passed Acte n 1861 and 1865 not unlike those passed in the same years by tho Geueral Assembly of South Carolina. By the Act of 1865 all laws for the col? odi?n of debts, &c , wore suspended until 1st Fauuary, 18GS. Chief Justice Handy delivered lie judgment of the Court. After admitting, in -he, most ample terms, tho general author ty ' of St ite legislation iu regard to the .e'medy for tho enforcement of contracts, and viii liciiting this authority its sanctioned by previous idjudicatious, "but (continued he) this poner it' the Legislature over remedies is not without restriction, anel any legislation which impairs thu /alue and benefit of the contract, though profess? ing to act upon tue remedy, must impair the right utended to be secured by the contract, and come ivituiu the evil intended to be prohibited by the Constitution. For though the particular remedy ixisting at the limo of making the contract is not in essential part of it, yet no contract would be of thy value without a remedy to enforce it. Its ob? ligation would be nugatory if all remedy to eu I'orce it were taken away, audit would bo impaired f the remedy were obstructed and rendered im? practicable, The remedy is, therefore, au inci lent to the contract, and though the party may nive no right, under the contract, to any particu ar remedy, yet he has a right, at all times, to >onie adequatu-aiid available remedy to enforce it, niel that is manifestly within the contemplation of :he contract. Hence, it has been hold generally iv courts and jurists of the highest authority m ;his country that acts of tho Legislature, pre? senting all' legal remedies on contracts, or ao ?haiiging and obstructing them as materially to. .nipair the value and benefit of the contract as it ?Xisted when made, are violations of the contract, ind within the prohibitions of the Constitution of be United States." Subsequently, analyzing the previsions of the int of 1865, the Chief Justice says : "lt is urged ihat ic is within the legitimate powers of the Le? gislature, because it appertains to tho remedy. ?ut is that its true character ?" "It does not at? tempt to make any new regulations in relation to .he prosecution of suits then pending, or any pro jeedings to be bad therein, but absolutely pre? sents all proceedings in such suits for more than :wo years. Instead of modifying tho remedies existing i'or the causes of action specified, or pro siding any new remedies thereon, it takes away ill remedies, and closes the Courts upon all rem? edies upon them for a period exceeding two years I'liU c-tii willi n' p propriety be clusst'd or justified ns legislation n-gulaiing remedies, but is m effect a denial of all remedy for tho time specified. It is, therefore, clearly within the principles stated, and comes within the prohibition Constitution of the United States." While preparing this opinion, a Montg newspaper furnishes the report of adecisior ? few days since by the Supreme Court of Ala -Ex parte G. F. Pollard and ex parte M L. 1 ID appears that ia Alabama, as iu ?oath < na, the Circuit Courts are held at an inter about six months. By the former practice i bama under the regulations of law, as iu Carolina for half a century past, no judgrr regularly entered against tho defendant un second term. He was i bus entitled to wha be called an invariance. But, by tho code i ed in Alabama in 1853, the proceedings we pedited and judgment might bo rendered first or return term. The law so continu?e February, 1866, when the Legislature past Act "to regulate judicial proceedings." J: of the provisions a defendant became entit what may be termed a second imparlane judgment would be entered at six or t months, according to the service of the writ another provision, after judgment, the exec might be superseded by what is called "a su Mon of irregularity." The Supreme Court co of a Chief Justice and two Associates. All i in holding the law unconstitutional and void as it stayed or hindered the collection of r under the judgments rendered. But the tw sociate Justices thought the other provision e ly a regulation of the remedy-that as the of 1853 had taken away theimparlance wi any impeachment ofits constitutionality, so th of 1866, which gave a second im parlance, n be sustained in the same view. Mr. Justice! however, who concurred in this respect witl Associate, took the occasion to express bis demnation of "Stay Laws." "Tho Act in que (says he; is said to be of that class. Il is n styled by the General Assembly in the Act; being a co-ordiuite branch of the Governme is proper to attribute to its action the best tives and objects that could be reasonably sumed;" and agrees with bis Associate that il merely a regulation of thc proceedings. I Justice Walker, in a very elaborate judgment, nounced the entire Act a violation of the Co tution. He said that the first provision was n festly "a mere plan for the delay and postr. mern of the performance of contracts, and ni adjustment of the machinery of the Courts tt attainment of a fair trial, or to tho securit justice." "lean perceive (adds he) no gn upon which the convictions of the Legislatur to the welfare of the State or tho necessity the people can enlarge their authority to ii fere, through the manipulation of the rem with the obligation of coutracts." It is manifest that the judgment of the Akb Court forms no exception to the unbroken cur of decisions. But surely no "doubtful interpr tion" can be alleged against the legislatioi South Carolina upon this subject. The Gon Assembly said what they meant. It is their h to do so. They call things by their right nat The Act of 18G1 is entitled "An Act to extend lief to debtors, and to prevent the sacrifice of perty at public sales." The subsequent am enactments are entitled "An Act to continu force" (the Act of 1861 J. But the Act of 1865 a ticipates any misconception, and is entitled 1 Aol to amend the law known as the Stay Law.' the case first stated (The State vs Carew) the ligation of the bond required the obligor to pa] the obligee $4,041 on the 1st Febrnary, 1861. '. Act of December, 18G1, precludes the debtor fi any legal remedy whatever to enforce his dem for twelve months. This prohibition is rene' and continued by successive enactments until comber, 1865, when tho law was so altered ai alfow the creditor, after three months' previ notice to the debtor, to demand payment ';f c tenth of his debt on tho 1st December, 1866, > on non-payment, he was allowed to obtain Ju ment and enforce the same for one-tenth of debt, and no more. The plain, open and avot purpose of the General Assembly was not the gulation of judicial proceedings, but modifioat or amelioration of the obligation of the partie "to extend relief to debtors"-"to prevent the s rifico of property at public sales"-to amend "Stay Law." By the manifest and necessary feet of the legislation, the creditor is reduced the condition in which (as has been elsewh said) "his rights live bat in grace, and his rei dies in entreaty, only." It may be that in great emergencies-in perit of general embarrassments-this extraordim power of interfering for the relief of the oitizt ought to have been reserved to the State Legis tures. It remains only to inquire whether this partie lar matter was not fnlly considered by the frami of the Constitution. When Luther Martin, a de gate from Maryland, returned to his constituen he was opposed to several provisions of the Cc stitution which had been adopted, and thus < presses his dissatisfaction with the olause pto biting the States from passing any law impairi tho obligation of contracts: "I considered (said Mr. Martin) that the might be times of great public calamity and d tress, and of ?uoh extensive scarcity bf specie, would render it the duty of the Government, I the preservation of even the most valuable part its citizens, in some measure to interfere in tin favor by passing laws totally, or partially stoppi courts of justice, or authorizing the debtor to p by instalments, or by delivering up his proper to his creditors at a valuation, Ac. Suoh tim have been and may again arrive. I therein voted against depriving tho States of this powei (1 Elliott's Deb. 376.) Mr. Madison, in the introduction of this ropo of the debates on the Federal Constitution, d scribing the condition Oftlfings which led to tl assembling of such a Convention, says: "Ia tl internal administration of the States, a violatit of contracts had become familiar in the form of depreciated paper made a legal tender, of proper substituted for money, of instalment laws, and the ocolusion of Courts of Justice, although evide; that such interferences affected the riiiht of otln States, relatively creditors, as well as citizens cree tors within the States." (Madison Papers, p. 12 5Ell. Deb.) General Davie, of North Carolina, returnir from the Convention, congratulated his constitt ents on the adoption of this prohibition of tt Constitution. That, hereafter, a 'sister Stat could not again do what they bad heretofoi done ; "make pine barren acts to discharge the debts-declare that our citizens shall be paid i sterile, iuarable lands at an extravagant price pass instalment laws, procrastinating the pay met of debts cue from their citizens for years." "It : essential (said he) to the iutorests of agricultui aud commerce that the hands of the State shoul bo bound from making paper money, iustalmei laws, and pine barren Acts." "That section is th best in the Constitution. It is founded in th strongest principles of justice. It is a section, i short, which I thought would have endeared tn Constitution to this country." (4 Ell. Deb. 15' 159, and 191.) Mr. Charles Pinckney, of South Carolina, was member of tho Convention which adopted th Constitution of the United Sates iu 1787. Ho wa fUbsi queutly a momber of tho Oonv. ntiou whic formed tho State Constitution of 1790, and is sui to have prepared the draft of tho Constitution t South Carolina. In the debates of tho State Convention, com niunting on this clause of tho Constitution ot th Unitod States (1 Article, 10 Section) Mr. Piuckne said: "Phis section I consider as the soul of th Constitution; as containing, in a few words, thos restraints upon tho States which, while they kee] thom from interfering with the powers of tin Union, will leave them always in a situation U com ly with their Federal duties; will teach then to cultivate the principles of public honor ant private honesty, which are the niuo road to na donal character and happiness." The prohibitioi was reiterated in the State Constitution thei adopted. "Nor shall any law impairing the obli g?tions of coutracts ever be missed by the Legis lai ure of this State." (9 Article, Section 2 ) The venerable Chancellor DuSausnure hat; walked with those who fought in tho lie volution, and with those who framed the Federal Couutitu tion. The following is his note to Glaze os. Drayton (1 Doss., B. 110): "TheLegislature, in considera? tion of the distressed state of tho country after the war, had passed an Act prohibiting t?e im? mediate recovery of debts, and fixing certain pe nods for the payment of debts far boyond t ie periods fixed by the contract ot tho paities. Tuen? interferences with private contracts va cunio verv numerous with most ut the btate> J^o latures, e*veu after the distress arising li ont HM? war had ceased in a great degree. ^V?S distrust and irritation throughout the ?"mmT to such au extent that new troubles """--JWT hended; and nothing contributed nioie to Papare the public mind for giving up a por non of the 8tate sovereignty, and adopting an efficient nation? al Government than these abuses of power by the State Legislatures." Ina similar,strain Mr. Justice Colcock speaks in Alexander vs. Gibson, 1 N. and McC, Rep. 186 (A. D. 1819): "In giving construction to this part of the Constitution it is necessary to take a vie w of the a tate of things which existed at the time of its adoption, and of tho particular Acte which had been passed by many of tho States during the struggle for our Independence. From the diffi culties which had arisen during the war it was found-to be impossible for debtors to satisfy the demands.of their creditors. The value of proper? ty was diminished. 'There was little circulating medium in tho country. And hence had origina? ted 'pine barren Act's,' 'instalment Jaws,' and other Acts of similar character, impairing tho obligation of contracts and thereby destroying credit. Many of these laws were then in opera? tion, and to guard against tho continuance of them was the avowed object of this clause in the Constitution." Such was the contemporaneous testimony-such, has been the uniform tradition of the country. Laws of the character ot thoso limier considera? tion were precisely those against which the prohibition of the Constitution was directed. Perhaps our forefathers miscarried in judgment, and Luther Martin was right. But he failed to convince his constituents. The people of the several States acted with their eyes open. They set one thing over another, and tho counsels of General Davie, and Mr. Madison and Mr. Pinck ney, prevailed over the counsels or Mr. Martin and other distinguished patriots. They ratified the prohibition of the Constitution. They thus volun? tarily submitted to this self-restraint and deter? mined to protect their representatives in tho State Legislature (rom the perils of temptation. If there has been any authoritative adjudication, since the adoption of the Constitution, sustaining the validity ot "Instalment Laws" or "Stay Laws," it escaped tho research of tho learned counsel who argued this cause, and has not beeu brought to the notice of the Court. In Lindsay vs. Commissioners, 2 Bay 01^; Judge Waties uses this language: "It was painfuijtohim to be obliged to question the exercise 6f any legislative power." In exercising this high autho? rity, the judges claim no judicial supremacy: they are only the administrators of the public will. If I an Act of the Legislature is held void, it is not because the judges have any control over the le? gislative powor, but because the Act is forbidden, hythe Constitution, and bocause the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law. As the Act under consideration was repug? nant to this high will he was bound to say that it ought not to have any operation. . In the judgment ol' this Court, the provisions of the Acts of 1861 and 1865, which interdict the service ofmesne process, or the enforcement of final process, are at variance with the Article of the Constitution of tho United States which prohib? its La State from passing any law impairing the obligation of contracts, and such provisions are, consequently, inoperative aud void. We concur: BENJ. F. DUNKIN. D. L. WARDLAW. THOMAS W. GLOVER. R. MUNKO. J. P. OAR HOLL, F. J. MOSES. JOHN A. INGLIS. T. N. DAWKIN8. H. D. LESESNE. W..D. JOHNSON. Vienna Buring the Sieg?. From the Vienna correspondence of the New York Tribune, dated August 8, we take tho follow? ing extract : After the battle of Sadowa, tho uncertainty whether Vienna would be successfully defended' against the Prussians induced tho Government to direct the removal of public moneys and valuable effects generally to the Fortress Konora, in Hun? gary, the strongest fortified place in Austria, if not on the continent. Private corporations and individuals also removed their accumulations of treasure and other property to the same point. Since the ratification of the preliminaries of peace, the bomb-proofs of Konora have again been re? lieved of these temporary deposits. The most valuable of these was the reserve fund of the Na? tional Bank, amounting to rio loss than $130,000, 000 in silver. This "enormous quantity of specie is to be brought back here on a special train. Upon its return the whole amount will bo counted over, which procese, ii ia caloulatcd, will employ twenty of the Bank officers for several weeks. Tho bpleudid imperial stud, for which safety was also sought in Hungary, returned likewise to the stable of the Hapsburg yesterday. During the advance of the Prussians upon Vienna tens of thousands of country people aban? doned their hornea and 80ught refuge, with their movables, in the capital. Most of these, having brought a supply of provisions with them, ana being too poor to pay for hotel accommodations,, bivouaced in their wagons upon the public squares' and vacant lots of the various suburbs. In one 01 the foamer I counted, the other day, not less than 300 vehicles of every description, harboring evidently some thousands of people. With the retreat of the PruBsians a return movement com? menced among these fugitives. Large caravans of them, en route for home, havo been daily en? livening the streets for some days. The destitu? tion among thom is very great, and Viennes charity has not exerted itself much in their bebalf. The Bohemian peasantry are largely represented in these processions, aud distinguish thomselves by indescribable squalor. LOUDS IN THE RETAIL THADE.-Tho English pa? pers are struck hy tho fact that some titled men in England and Ireland actually work for a living! Here is a snobbish paragraph : Lord James Butler, of the house of Ormond of I Llanthony, is not only state steward in Dublin Castle, but a retail dairyman. His lordship's carts, with the owner's name inscribed thereon according to law, traverse Dublin, supplying all who will take at least four quarts of my lord's milk daily. This is only one of the many examples of trading by noblemen. The eccentric Lord Stanhope apprenticed two of his eons to n nidicraft business. There was once a Lord Toynhani, who, 1 in partnership with a tailor, made mouey by sell? ing, or pretending to sell, government appoint? ments. Recontly, Lord Thomas Gordon was in tho Bankruptcy Court as a tobacconist; a..d Lord Henry Loftus is now before the same court, his vocation being that of steward to tho Marquis of Ely, his master being also his nephew. Many other examples might bo adduced wherein the calling and the title of the individual seem to be out of harmony. -?. ? A CERTAIN CURE VOR COHNS.-It is reported that several citizens of Raleigh are sufferers from corns. We cannot vouch for tho fact, aiid there? fore merely give tho report as it reached our ears from time to time. Neither distinguished chiro? podists nor sharp razors, nor blunt-edged knives, nor caustic, nor any other thing, han afforded them more than temporary relief. For their re? lief, we publish the following remedy, which is pronounced entirely efficacious by ouo who has tried and seen it tried : , "Take twenty cents worth of acetic acid and apply ic to the corns every night, and morning. -U will cause no pain and produce a cen.iin cure, iii five dav? the corn may be entirely removed witii the finger nail. I have tried it ami lound lt to succeed."- Raleigh Progress. CENSORSHIP OK Tin; 1'HK? I f^T.^ ligious work was recently published m Athens, iffi tho Holy Synod of the Creek Church pro no need beret calf prohibiting thc people to read llOUIKCtl Uti eui. ,.u At 8ame time tli it in order to pronounce a just sentence it would be necessary to eximine the book carofully; but as the Holy Synod had forbidden any one to rend it, t"e judges f'ouud themselves unable to j>roeeed._^_ The Japan Times gives an accouut of the an? nual racos at Yokohama. A large number of hoists ran. The race course was crowded. Amongst the occupiers of the grand stand were a number of Japanese nobles. All kinda of vehicles were met with on the road, and in going to and (rom the race course there were several accidents by vehicles upsetting, but no very serious dam? age resulted. There were thirteen prizes run for,, amongst which were the Ce,estial Cup, tho Japan Cup, and the Yokohama Plate.