State v. -, 2 N.C. 38, 1 Hayw. 38 (1794)

April 1794 · North Carolina Superior Court

2 N.C. 38, 1 Hayw. 38

State v. -

The act of 1793, authorising the Attorney-General to take judgment against the receivers of public moneys, by motion, and that their delinquencies should be sufficient notice lo them, was declared to be unconstitutional and void by Williams, Judge, but was after-wards allowed by McCat and Ashe Judges. Ashe hesitating at first.

At the last session of the General Assembly, it was enacted that judgments might be obtained by the Attor* noy-General against receivers of public money, by motion ; and that their delinquencies should be sufficient no* tice to them that they were to be proceeded against; and upon this act the Attorney-General now moved for judgment against several, and produced the act to show how he was authorised, so to do.

But Judge Whuams stopped him, saying he could not permit judgments to be taken in that manner. That he conceived the act to be unconstitutional, it was to-condemn a man unheard. The 12th article of the Bill of' Rights says, “ No freeman ought to be taken, imprisoned or disseised of his freehold, liberties or property, &c. but by the law of the land and these words mean, ^ according to the course of the common law ; which always required the party to be cited, and to have a day in Court upon which he might appear and defend himself. The 14th .section’ declares, that the ancient mode, of trial by Jury, is one of (he best securities of the rights of the people, and ought to remain sacred and inviolable. The ancient mode of trial by jury was, that after the Defendant was cited, and had pleaded, and the other party had denied his plea, or some part of it, then the point in controversy was submitted to the decision of a jury ; but here, though a jury may be sworn, what will it be upon ? It will be upon a default taken against the party who does not appear and plead, because he lias no knowledge that any proceedings are intended to be had against him : and so in truth it is not a trial by jury according to the ancient mode — the Defendant has no opportunity of making any defensive allegations which may be submitted to the decision of a jury ; but the jury here are merely to pronounce what is tiie sum to be recovered, and in this they are to he governed by the report of the Comptroller, which is made evidence against the Defendant by another act of Assembly ; so that in reality the jury have nothing to determine on — it is mere form for the sake of which they are to be impannelied— such a trial is a mere farce. I think the act unconstitutional, and I cannot, as at present advised, give my assent to its being carried into effect — the Judges of the land are a branch of the government, and are to admin- „• ister the constitutional laws, not such as are repugnant to the constitution ; it is their duty to resist an unron-stimfional act. In fact, such an act made by the General Assembly, who are deputed only to make laws im, conformity to the constitution, and within the limits it prescribes, is not any law at all. Whenever the Assem-b|j exceeds the limits of the constitution, they act wifh-out authority, and then their acts aro no more binding than the acts of any other assembled body. Suppose when met together, they should pass an act to continue the Assembly for two years — the constitution says it shall continué but for one — and suppose in the second year they should passan.act — \Vould the Judges be bound to effectuate it ? Surely not. Wo more are they bound to regard an act not made agreeable to the constitution. I am alone on the bench- — I am sorry to be obliged to prevent the execution of an act which the Legislature thought necessary to be passed, and no doubt might be of public utility — but what end is an equivalent, for a precedent so dangerous as that where the constitution is disregarded by the Legislature, and that disregard sanctioned by the Judiciary ? Where then is the safety of the people, or the freedom which the constitution meant to secure? One precedent begets another, one breach will quickly be succeeded by another, and thus tin* giving way in the first instance to what seems to be a case of public convenience, in fact prepares the way for the total overthrow of the constitution — that surest palladium of our rights. I cannot consent to it — but the Attorney General, if he pleases, may again move the subject when we have reflected a little more upon it.

Next day at the sitting of the Court, Haywood, tiie Attorney-General, moved the subject again, as follows ; The clauses of the constitution that are objected to the validity of this act, arc declarations the people thought proper to make of their rights; not against a power they supposed their own representatives might usurp, but against oppression and usurpation in general. Tito second clause for instance, could not be intended as a restraint upon the Legislature; it could not be supposed the Legislature would ever attempt to oppose the right of the people to regulate their internal government ; ifc was intended to assert the right of the people against the power of the British King and Parliament, and against all other foreign powers, who hereafter might claim a right under-ariy pretence whatsoever, of interfering with the. affairs of tai-, government; and to serve as a standing and perpetual memento to posterity, that the least intermeddling by any foreign power with the infernal policy of this government; is- an invasion of their prive leges. Such also is Hie manifest meaning of the 5th section. Who were the convention suspicious of when they declared, That allpower of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people is injurious to their rights and ought not to he exercised?” This is not a restraint upon the legislative power of the Assembly. From the experience of what liad happened in older governments, they apprehended that in the vicissitudes of human affairs, some ambitious men might usurp the power of dispensing witli laws, or claim the right of exercising such a power. It had been frequently done in that government which they were the most intimately acquainted with, to the great oppression of the people. They also had other reasons — the event of that dangerous war in which they were then engaged, was doubtful. In case of an adverse event, they were determined by this solemn declaration, that the rights of the people should be proclaimed and handed down to posterity— that this solemn declaration should be a monument of them, to keep the genius of fr eedom alive, and to impel posterity by this lesson left them by tiieir ancestors, at some future day to erect again the standard of liberty. This l take to be the true meaning of the Declaration of Rights : and if we attend to the 12th clause, we shall find it was copied almost verbatim from the 29th chapter of Magna Charta, and of the occasion of which our Bill of Rights were very similar — the struggle of the people against oppression. This clause in both has nearly the same meaning — and then the spirit of this clause is in exact unison with the other clauses, not intended restrain the Legislature from making the law of the land, but a declaration only, that the people are to lie governed by no other than the law of the land — per legem terree, were words used i» the charters granted by Henry I. K. Stephen, Henry II. K. John and Henry Ilf. whose confirmation seemed filially to give stability to this charter : and this term, in those times had a certain appropriate meaning, which in latter periods carne to a little altered. In the three former of these reigns, the term per legem terree, was employed in contradistinction to the civil law, then called the Italian law, having been lately discovered and adopted in Italy, and which had been, or were then begun to be introduced in England in exclusion of the laws of Edward the Confessor, or in other words the law of England. Henry I. in his char* for. promised among other tilings to confirm and observe all the laws of Edward the Confessor — Goldsmith’s England, 1 vol. 133. Stephen, his immediate successor, promised a restoration of the laws of Edward the Confessor in his charter — Goldsmith’s England, 1 vol. 145.— These laws of Edward the Confessor, were the ancient laws,, usages and customs of the different parts of Eng-, land, collected and digested into one code. 1 BL Com. 66. 4 Bl. Com. 405. it appears from the frequent stipulations contained in the charters of these times, promising to observe and restore these laws, that they had been neglected, and some other law introduced in their place. Indeed we are expressly informed of this in the preface to the 8th report, page 8, where immediately after the author has been speaking of King Stephen’s.character, lie says, “ King Stephen forbade by public edict that no man should retain the laws of Italy, formerly brought into England.” in these times therefore, the term lex Ierren, meant the English law in contradistinction to the laws of Italy, or of any other foreign country : and in like manner in our constitution, where the Convention are declaring the righis of the people, and use the words of the Magna Charta of England, they mean to assert in general, that the people of Nosth-Ca-volina have a right to be governed by their ow n laws, and not to be subject to laws made by any foreign power upon earth ; in like manner as in the 2d clause, they declare that the people of this state ought to have the sole and exclusive rigid of regulating the internal government and police thereof — by all which they mean to \indicate the sovereignty of this country, and the inherent right of the people thereof to govern themselves — the ierm lex terree, in the times of King John and Henry III. began to have a meaning additional to what it had in the former reigns : these princes were guilty of great abuses under the pretence of prerogative — they had confiscated the estates of many of their subjects — they had exiled and destroyed many also by the power of prerogative. It is remarkable that in King John's charter it is stipulated, that no freeman shall be taken, or imprisoned, or disseised of his free tenements and liberties, or outlawed, or banished, unless by the legal judgment of his peers, or by the law' of the land ; and all who suffered otherwise in. this and the two former reigns shall be restored to their rights and possessions. 1 vol. Goldsmith's England. 233. This plainly evinces tnat the words -per legem term, here spoken of, import an acting by a pretended prerogative against or wit ioutthe authority of Jaw. l vnl. Goldsmith’s England, 324, 325.. 319, 220 : and tluis the. term, law of the land, is to be'understood in our co>Ht»íutio¡i, beside the meaning already ascribed to li, to declare, that the people of this state are not to be deprived ofliberty, property, the benefit of the law, nor exiled from their country, by any power whatsoever, acting without or contrary to the established law of the country, or by any proceeding not directed or au-thorised by that law. The meaning of the words lex ter-ra’, may therefore he thus shortly defined — a law for the, people of North Carolina, made or adopted by themselves by the intervention of their own Legislature.— This definition excludes the idea of foreign legislation, of royal or executive, prerogative, and of usurped power; and leaves the power of indicting punishments, or rather of passing laws for that purpose, in their own Legislature only. In this sense, the lex Ierra; of North-Carolina at present is the wolc body of law, composed parity of the common law. partly of customs, partly of the acts of the British Parliament received and enforced here,ami partly of the acts passed by our own Legislature, 9, Inst. 4fi. If this body of Saws, is not the lex ierro; designated in, our Bill of Bights, hut the common law only, then the common law is immutable, and the Assembly' cannot alter it by any legislative aid. Should the Assembly in any instance attempt to alter any rule of property, with respect to its transmission, descent, Ac. so as to entitle any other person !o it than is entitled by the common law, he that is entitled by the rule of the common law, may say, no man is to be deprived of his property or rights but according to the law bf the laud, or the common law. If an act not punishable by the common law, or punishable only in a smaller degree, should be rendered pena!, or more pemil than it v.as by the common law, by any legislative act, the paity to be affected by it. might say, I am not to be imprisoned, or exiled, or disseised of my freehold, or in any manner destroyed, but according to tlie law of the land, or in other words the common law. It is easy to see into what a labyrinth of confusiotl this would lead us — it would contradict, the very spirit of the Constitution, which in establishing a Republican form of Government, must have been inevitably led to foresee the great alteration that the new state of tilings would make necessary in the great fabric of the common law: they must iiave intended such changes therein by the legislative power, as would more perfectly adapt it to the genius of that species of government, many of the maxims of which are so diametrically opposed to all those of the common law which have any view towards the support of the kingly power, or that of the. nobles. Such a construction would destroy all legislative power whatsoever, except that of making laws in addition to tjie common law, and for cases not provided for by that law. It .would lop oft’ the whole body of the statute law at one stroke, and leave us in the most miserable condition that can well he imagined — ali capital punishments ordained by the statute, law for murder, rape, arson, &r. would be done away, and every malignant passion of the human heart let loose to roam through the land, unbridled by fear, and free from ail manner of restraint, except those very ineffectual ones the common law imposes. This cannot, therefore, be the time meaning of the term law of the land, made use of in the Bill of Rights ; it must he that which I have already contended for, or something very similar to it; and if that be tiie true meaning of the term, then how do these words at ali imply that the Legislature have not a right to pass such an act as that which is the subject of our present discussion ? Do they not on the oilier band prove, that as this is neither the act of any foreign Legislature, nor the arbitrary edict of any usurped power acting independent of the people, but the act of their representatives assembled for the purpose of legislation, and to consult together for the public welfare, is such an act as ought to be respected ? Does it follow, because the Constitution hath declared the right of the people to be exempted from all foreign jurisdiction, and from all power acting independently of the laws, that their own representatives cannot make a law which is useful and necessary for the public good ? There is no part of this Constitution that directs the process by which a suit shall be instituted, or carried on, and the Legisla.ture are therefore free to direct what, mode of proceeding in Courts they think proper : and accordingly in a great variety of instances, both in England, after Jilagna Char-to, and in this country, since the Constitution, judgments have been rendered against Defendants without their having had any previous actual notice, and ttie Judges have never intimated a doubt of the constitution-ably of these proceedings. I wiii instance, in the case of statute merchant,statute staple, and recognizance in En-' gland 5 there, after the recognition and day of payment arrives, no process issues against the debtor to shew whether he has paid or obtained a discharge, but execution issues without any further notice. I will instance in the case of outlawries — a man’s whole property may be taken away, and yet he never may have had an} actual notice of his appearance in Court being required. Both before and since the Revolution iti this country, and until the year 1783, bonds, called judgment bonds, were in use here, and many judgments were taken upon them after the formation of this Constitution, without any notice, at all to the Defendants, and the Judges did not say it was-an unconstitutional proceeding; and I suppose it would have been practised to this day, bad it not been for the legislative interposition in the year 1783. See Ilsv. Laws, c. 188. The necessity for this interposition, proves that it was an inconvenience the Judiciary could not remedy upon the ground of its unconstitutionality. Had it been such, ns it was a public evil, the Judges would most certainly have opposed to it the principles of the. Constitution. I would instance in the case of the. attachment laws — the property of an absentee is seized, judgment is obtained against him, and his property sold, when perhaps, and ver} probably too, he has uottlicle-ast intimation of it. The attachment law, is a law of public convenience, but yet it is liable to all the objections which have been made to tiiis act for taking judgments ; without any previous notice actually given to the Defendant, a judgment by default is taken, and the Jury is sworn to ascertain the quantum of damages, the Defendant not being present, and indeed knowing nothing of it —yet the validity of the attachment law was never questioned by the Judges, nor did they, that I overheard, express the least reluctaiiee to its execution. If a bill in equity is filed, and the Defendant cannot be found within the State, to be served witli process, if is published in the Gazette, that such a bill is filed, and if the party should not appeal- by the prefixed day, though he hath no actual notice, yet a decree is passed against him. If a judgment is obtained against trie principal, and two sci. fa’s against the bail are returned nihil, hero a judgment pasges against the bail, though he has no actual notice of this proceeding, and of course no opportunity lo plead in his defence a matter to be submitted to a Jury. 411 the confiscation laws lately passed in this country, what are they but proceedings to take away the property of absentees, who perhaps knew nothing of these intended proceedings? If to proceed to judgment before actual notice be given to the Defendant, he against this clause of the Constitution, how hath it happened that so many proceedings of this nature have been established by the uniform decisions and practice of the Judiciary? It may be fairly inferred, that aii these are so many proof's that such a proceeding is not unconstitutional, and that the Legislature may enact such laws. But to, obviate these objections* in every shape, let it be granted for the. sake of argument, that the phrase lex terra, in our Bill of Rights, really means the common law, and that the common law requires notice to he given to the Defendant before the Plaintiff can proceed to judgment, it also allows an exception to the rule when the Defendant voluntarily renounces that privilege by the nature of his contract.— It is one of the maxims of this very common law, that (¿uilibei potest renunciare juri pro se introducto. And maxims being the foundations of the common law, when they are once declared by ttic Judges, are held equal in point of authority and force, to acts of Parliament.— f¥ood’s Inst. 6. The maxim that (¿idlibet potest, Spc. extends even to cases where the life of the renouncer is concerned ; the accessary by renouncing his right not to be tried before the conviction of the principal, may [mi himself upon his trial, and be hanged for it, 2Inst. 501, 183. If the rule of renunciation extends thus far, it will hardly be contended that a man may not renounce some lesser advantage, such as the having of actual notice of the State being about to proceed to judgment against him.— But if this point be established, yet the question recoils— Have the receivers of public monies in this State agreed to renounce this privilege ? To prove that they have, we have nothing more to do than to refer to the several acts of the Legislature for the better security of the revenue, 1784, Rev.Laws, c. 219. Tim Legislature directed judgments to be taken agabist delinquents by the Treasurer, in the name of the Governor, and declared tliat such judgments should be as valid as if the usual processes of law had been observed 5 the same in efiect is repeated in 178?, Rev. Laws. c. 2'-9. Now surely every officer who hath received his appointment since the 22d Oct. 1784, must be deemed to have taken it under the condition prescribed by these Saws, and must in the very act of accepting tlie office, have consented, that in case of delinquency he would be subject to the operation of these laws $ arid is he not then as much bound as in the case of the judgment before mentioned ? And I would remark, that these aits of 1784 ami 1787, were so far from being viewed as unconstitutional by the Judiciary at first, that no scruple was ever entertained with respect to them, from the time of passing the act of 178t, until some time in the year 1788, but in this interval, judgments for the public were uniformly entered as the act directs, without actual notice to the Defendant. The records of this Court will verily the assertion, and the gentleman concerned for the Stole at that time can certify the same thing. [Mr. Moore was this gentleman, who was then present.] In 1788 a judgment was moved for, and the Court for the first time enquired, if the Defendant had been served with notice of the motion, and being answered in the negative, refused to give judgment.» This determination was followed by a practice of giving notice, productive of enormous espence to the State — in order to prevent this ex-penee for the future, and to leave no doubt in the mind of the Court with respect to the will of the Legislature upon this subject, they have unequivocally expressed it in the most pointed terms in their act of the last Session. Since the year 1784, there have been nine Assemblies of this State, the most of them hove approved, some have amended this part of the revenue laws, and none have ever thought proper to repeal it. Would so many Assemblies, each of whom has done something upon the revenue' business, have suffered those clauses to have remained unrepealed, bad they believed them to be unconstitutional ? Are these legislative bodies, charged and entrusted by their countrymen with their most important concerns, to be all regarded asmen who cither could not discover the unconstitutionality of a law, or were willing to countenance it? What interest have they in the con-inuance of an unconstitutional act more than the rest of heir fellow citizens? Had the clauses been repugnant to the Constitution, they would undoubtedly have repealed them. The Legislature, though frequently blamed, are undoubtedly in general entitled to. this commenda. that they seek the good of their country ; with men elected as they are, and for such a period, it can hardly he otherwise. In doubtful cases, the argmnentum ab in-convenienti is of weight, and I conceive it may be properly introduced on the present occasion ; if the inconvenience of declaring this act to be unconstitutional he considerable, l presume this consideration will not be entirely overlooked bv tire Court, it -vas to avoid great public inconvenience tiiat this act was passed. The. ex-pence of-sending a messenger to all parts of the State, to give notice to delinquents, cost the State annually, not less than one thousand pounds; and besides this, the parties well knowing it to be the duty of the Treasurer to take judgment after the first day of October in each year, cither go out of the neighborhood, or conceal themselves about the time when the. messenger is expected, so that after travelling a great distance, he frequently returns without seeing any of them, but he must still be recompensed for iiis services out of the public coffers. Somc-times be is fortunate enough to serve the notice upon one of several parties to a contract, and immediately some of the family are sent off to give notice to the others that the State messenger is about ; the consequence of which is that he cannot see the others : and thus he returns, having served one only, who perhaps of himself is not able to satisfy the demand. Frequently the County Courts take seventeen, or eighteen, or twenty securities, in order to indemnify themselves. The messenger must serve all these with notices ; to serve notice upon some of them only will not do ; if they are to be charged jointly, they must all be proceeded against; and most frequently, for the reason just mentioned, it is improper to procee d against any one of them alone. The public debtors also frequently move away into other States, so that notice cannot be served upon them; and if they have left any property which might be attached, the Treasurer, or his messenger, knows not where it is ; nor do they generally receive any intelligence of the danger of the public debt, till private creditors have swept away the whole property. All these evils, so detrimental to the public, and which the Legislature have manifested so much anxiety at different times to remove, will still be continued if the Court should adhere to its opinion of yesterday : and moreover, by surh a decision, the Legislature will be utterly deprived of every power competent to its re-mody. It will be, in vain fon them to pass any act similar to the present, nr to adopt any other mode but that of flie old one., which has prevailed since the year 1738. At this time there are but a few hundred pounds in tiie Treasury, and the situation of public affairs renders it probable, tiiat the Legislature may be convened before the day of its usual meeting — how are they to be supported ? Should the public emergencies require the advancement of any considerable sum, which is not improbable, how is it to be obtained if the public judgments arc not now taken ? Or bow is the Treasury to be supplied for the espences of the next meeting of the Assembly ? a do not urge the latter arguments as properly possessing any aitch force as should have an influence iu the decisions of a constitutional question, but only as reasons why wc should carefully examine the question now before us, before we proceed to reject this act entirely. While we are considering; the permanent and remote consequences of such a decision, the immediate and transient one should not entirely be overlooked, especially as it may pur a stop to the, affairs of government for some time, at this critical period, when the approach of war is universally expected. It has been said, amongst other objections to the clause now in question, that this isa retrospective, law. — Does any part of our Cousiition prohibit the passing a retrospective law ? It certainly does not. The objection is grounded upon tire 24th section of our Bill of Rights, which prohibits the passing of an ex post jado law. This prohibition is essential to freedom aqd the safety of individuals. This is a declaration thaf-fio power whatsoever shall be entrusted with the arbitrary disposal of the lives of our citizens. If the whole people should become prejudiced against a fellow-citizen, lie is not to fall a sacrifice to popular caprice, or resentment. The lepreseniatives'of the people shall not condemn him by any act of attainder, nor yet by declaring any former act of his to be now capitally criminal, or indeed more criminal, than it was at the time of its commission. Examples of popular phrensy exhibited in the ancient republics against some of the people’s best friends, pointed to the propriety of this regulation ; and this clause, I admit, is in restraint of legislative power in this particular — this indeed, prohibits the passing of a retrospective law so far as it magnifies the criminality of a former action, but it leaves the Legislatura free to pass a]| others, and without such a power no Government could exist for any considerable length of time, without experiencing great mischiefs. The exercise of such a power hath been found frequently necessary here since the Revolution, and divers retrospective acts, which the Legislature have passed, have been carried into execution and sanctioned by the Judiciary. . See Iredell’s Rev. 37? Sec- 24. 289, 318 Sec. 100. 336 Sec. 4. 424, 454, 463,487, 489 Sec. 5. 573 Sec. 6, 7, 9, 10,11, 16. The fact is, the affairs of Government will sometimes, nay often, require the exercise of this power. These instances may serve to shew the necessity of it. And it is not like an ex post Jacto retrospective law any way incompatible with the safety of a free people. The Convention foresaw the necessity there would be for sometimes enacting such laws, and therefore they have been careful to word the 24th section so as not to exclude the power of passing a retrospective law, not falling within the description of an ex post facto law — the Convention meant to leave it with the Legislature to pass such laws when the public convenience required it. I will not stir this point any further, but conclude with expressing my hope that the Court will suffer us to take judgment.

Judge Wilhams still adhered to his opiniou of yesterday, giving nearly the same reasons he then gave.

At Halifax Court a few days after, the Attorney-General again moved the Court, consisting of Judge Asms and Judge Macay, and stated to them the arguments which had been used at Hillsborough ; after hearing him the Court took time to advise for a few days: when the matter being moved again, Judge Ashe gave the opinion of the Court, saying he andi Judge Macay had conferred together — that for himself lie had had very considerable doubts, but that Judge Macay was very clear in bis opinion that the judgments might be taken, arid fiad given such strong reasons, that Ins (Judge Ashe’s) objections were vanquished, and therefore that the Attorney General might proceed — hut that yet lie did not very well like it. — So the judgments were taken.

Note — Vide Bank of Naubern v. Taylor, 1 Car. Law Rep. 246, S. C. 2 Murph. 266,