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State v. ------1 Hayw. 28 N.C. 1794
At the last session of the General Assembly it was enacted that judgments might be obtained by the Attorney-General against receivers of public money, by motion; and that their delinquencies should be sufficient notice 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 authorized so to do.
But Williams, J., 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. Bill of Rights, Art. 12, says: "No freeman ought to be taken, imprisoned, or disseised of his freehold, liberties or property, etc., 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 so have day in Court upon which he might appear and defend himself. Sec. 14 declares that the ancient mode of trial by jury is one of the 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 has 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 decisions of a jury; but the jury here are merely to pronounce what is the sum to be recovered, and in this they are to be governed by the report of the Comptroller, which is made evidence against the defendant by another act of the 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 impaneled. 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 administer the constitutional laws, not such as are repugnant to the Constitution. It is their duty to resist an unconstitutional act. In fact, such an act made by the General Assembly, who are deputed only to make laws in conformity to the Constitution, and within the limits it prescribes, is not any law at all. Whenever the Assembly exceeds the limits of the Constitution, they act without authority, and then their acts are 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 [Volume 5, Page 315] years--the Constitution says it shall continue but for one; and suppose in the second year they should pass an act--would the judges be bound to effectuate it? Surely not. No 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 the 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--the 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, the Attorney-General, moved the subject again, as follows: The clauses of the Constitution that are objected to the validity of this act are 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. The 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. It 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 any pretense whatsoever, of interfering with the affairs of this Government; and to serve as a standing and perpetual memento to posterity that the least intermeddling by any foreign power with the internal policy of this Government is an invasion of their privileges. Such, also, is the manifest meaning of section 5. Who were the convention suspicious of when they declared, "That all power 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 be exercised"? This is not a restraint upon the legislative power of the Assembly. From the experience of what had happened in older governments, they apprehended that in the vicissitudes of human affairs some ambitious men might usurp the power of dispensing with 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 freedom alive, and to impel posterity by this lesson left them by their ancestors, at some future day to erect again the standard of liberty. This I 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 chapter 29 of Magna Carta, 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 to restrain the Legislature from making the law of the land, but a declaration only that the people are to be governed by no other than the law of land. Per legem terrae, were words used in the charter granted by Henry I., King Stephen, Henry II., King John, and Henry III., whose confirmation seemed finally to give stability to this charter; and this term, in those times, had a certain appropriate meaning which in latter periods came to be a little altered. In the three former of these reigns the term per legem terrae 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, in the law of England. Henry I. in his charter promised, among other things, to confirm and observe all the laws of Edward the Confessor. 1 Goldsmith's England, 133. Stephen, his immediate successor, promised a restoration of the laws of Edward the Confessor in his charter. 1 Goldsmith's England, 145. These laws of Edward the Confessor were the ancient laws, usages, and customs of the different parts of England, 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 8 Rep., page 8, where immediately after the author has been speaking of King Stephen's character, he 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 terrae 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 rights of the people, and use the words of the Magna Carta of England, they mean to assert, in general, that the people of North Carolina have a right to be governed by their own 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 right of regulating the internal government and police thereof--by all which they mean to vindicate the sovereignty of this country, and the inherent right of the people thereof to govern themselves. The term lex terrae, in the times of Kings 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 pretense of prerogative. They had confiscated the estates of [Volume 5, Page 316] 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 Goldsmith's England, 233. This plainly evinces that the words per legem terrae, here spoken of, import an acting by a pretended prerogative against or without the authority of law. 1 Goldsmith's England, 224, 225, 219, 220. And thus the term, law of the land, is to be understood in our Constitution, beside the meaning already ascribed to it, to declare that the people of this State are not to be deprived of liberty, 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 authorized by that law. The meaning of the words lex terrae may, therefore, be 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 inflicting punishments, or rather of passing laws for that purpose, in their own Legislature only. In this sense, the lex terrae of North Carolina at present is the whole body of law, composed partly of the common law, partly of customs, partly of the acts of the British Parliament received and enforced here, and partly of the acts passed by our own Legislature. 2 Inst., 46. If this body of laws is not the lex terrae designated in our Bill of Rights, but the common law only, then the common law is immutable, and the Assembly cannot alter it by any legislative act. Should the Assembly in any instance attempt to alter any rule of property, with respect to its transmission, descent, etc., so as to entitle any other person to 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 of the land, or the common law." If an act not punishable by the common law, or punishable only in a smaller degree, should be rendered penal, or more penal than it was by the common law, by any legislative act, the party 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 the law of the land, or, in other words, the common law." It is easy to see into what a labyrinth of confusion 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 things would make necessary in the great fabric of the common law; they must have 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 the common law, and for cases not provided for by that law. It would lop off the whole body of the statute law at one stroke, and leave us in the most miserable condition that can well be imagined. All capital punishments ordained by the statute law for murder, rape, arson, etc., 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 all manner of restraint except those very ineffectual ones the common law imposes. This cannot, therefore, be the true meaning of the term law of the land, made use of in the Bill of Rights. It must be that which I have already contended for, or something very similar to it; and if that be the true meaning of the term, how do these words at all 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 other hand, 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 Legislature 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 Magna Carta and in this country since the Constitution, judgments have been rendered against the defendants without their having had any previous actual notice, and the judges have never intimated a doubt of the constitutionality of these proceedings. I will instance in the case of statute merchant, statute staple, and recognizance in England. There, after the recognition and day of payment arrives, no process issues against the debtor to show 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 any actual notice of his appearance in court being required. Both before and since the Revolution in this country, and until 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 practiced to this day had it not been for the legislative interposition in 1783. See Rev. Laws, ch. 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, as 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, [Volume 5, Page 317] and very probably, too, he has not the least 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 this 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 ever heard, express the least reluctance to its execution. If a bill in equity is filed, and the defendant cannot be found within the State, to be served with process, it is published in the Gazette that such a bill is filed, and if the party should not appear by the prefixed day, though he hath no actual notice, yet a decree is passed against him. If a judgment is obtained against the principal, and two sci fa's against the bail are returned nihil, here a judgment passes against the bail, though he has no actual notice of this proceeding, and of course no opportunity to plead in his defense a matter to be submitted to a jury. All 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 be 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 all these are so many proofs 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 terrae in our Bill of Rights really means the common law, and that the common law requires notice to be 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 Quilibet potest renunciare juri pro se introducto. And maxims, being the foundations of the common law, when they are once declared by the judges, are held equal in point of authority and force to acts of Parliament. Wood's Inst., 6. The maxim that Quilibet potest, etc., extends even to cases where the life of the renouncer is concerned; the accessory by renouncing his right not to be tried before the conviction of the principal may put himself upon his trial, and be hanged for it. 2 Inst., 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.
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