USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 35
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36
412
APPENDIX.
Fogarsa. Many other cases may be added, of the like im- port, to show that, under particular circumstances, necessity excuses from a rigid observance of the law. If a fire hap- pens in a street, a person may justify the pulling down a wall or house of another person, to prevent its spreading; and, where several persons are in danger of drowning, one, to save his life, may thrust another from the boat's side; and these, for the necessity of the cases, cited by one of the gentlemen in his arguments. So if A assaults B so fiercely that he can- not save his life if he give back, or if, in the assault, B falls to the ground, whereby he cannot fly ; in such case if B kills A, it is se defendendo, the party assaulted shall, by the favora- ble interpretation of the law, have the advantage of this necessity, to be interpreted as a flight, to give him the advan- tage of se defendendo, when the necessity put upon him by the assault makes his flight impossible not that the law es- teems this necessity to be a flight; but the party, not having opportunity of flying, the law does not require of him, but excuses him in the same manner as if he had fled. Also, it is not lawful to assist the King's enemies, with money or provision, for it is an adhering to the King's enemies, and so treason within the letter of the statute of 25 Edward III .; but yet, if the King's enemies come into a county with a power too strong for the county to resist, and will plunder the coun- try, unless a composition be made with them, such a ransom- ing of themselves is so far from being treason, that it hath been allowed as lawful :- First, in respect of the extreme ne- cessity ; secondly, because it is less detrimental to the county and a less supply to the enemy .- 1 H. P. C., 482, &c. A number of other cases might, if necessary, be produced to the same effect, but these are sufficient to prove the general proposition, and it remains only to be considered how far these cases correspond with, and are applicable to the present question, viz .: Whether, notwithstanding the Stamp Act re- quires that judgments should be entered upon stamp paper, they may, in regard to our present circulation, be done with- out ?
It is a fact of public notoriety that no stamp paper is to be
413
APPENDIX.
had in this province, and the Governor's certificate, under his seal and sign-manual produced in Court, confirms it, if it needed any proof. The Stamp Act, therefore, cannot, in the nature of things, be complied with, for want of stamp paper. Whatever cause this may be owing to, the effect and conse- quences are the same. If no business is to be done without stamp paper, and it is absolutely impossible for the Court to procure stamp paper, the inference is that the Stamp Act, in such an exigency, would oblige the Court of Law to be shut up, all business to be remitted, and the administration of law and justice to be suspended. Can it be presumed that the Parliament meant any such thing, or is there one word in the Act, from the first to the last page of it, that gives the least countenance to such an interpretation. Could the Parliament intend, by this law, to abrogate and repeal all precedent Acts of Parliament-to unhinge the Constitution of the, Colonies- to unloose the hands of violence and oppression-to intro- duce anarchy and confusion amongst us, and to reduce us to a state of outlawry. For to be without law, aud to want the means of dispensing the law, is one and the same thing; yet all these consequences unavoidably result from the position that no business can be done at all events without stamp paper, and would be the natural effects of shutting up the King's Courts. The necessity of the thing, therefore, the law of reason, the preservation and security of the province, re- quire that such a construction should be put upon the Act as will prevent such complicated evils, and excuse even the breaking of the words of the Act, for the avoidance of as many and great mischiefs.
We have in the present case not only the necessity of the thing to excuse, but the impossibility also of complying with the Act. No power whatever can oblige to impossibilities; and a law, which enjoins a thing impossible to be performed, repugnant and against reason and common right, my Lord Coke says is void.
What greater necessity can offer itself for relaxing the words of a statute, than that they would introduce such a train of evils; what necessity can operate more strongly than that
414
APPENDIX.
which reduces a whole community to such a state of insecu- rity, and deprives them of the protection of the laws; what necessity can urge the Court more forcibly than that which would oblige them, contrary to the laws, contrary to their oaths, to deny and delay justice? If, then, things for neces- sity's sake, and to prevent a failure of justice are, as my Lord Coke says, excepted out of statutes, the present case ought most certainly to be deemed so. Necessity and law require that the Courts should be open, that the subject may resort thereto for justice. The Stamp Act says nothing to the con- trary, only requires, under certain penalties, that the paper to be used on several occasions should be stamped, and pay a certain duty to the Crown ; no stamp paper then being to be had, the non-compliance with the Act, in this particular, is to be imputed and ascribed to necessity, and the avoidance of an infinitely greater mischief.
It appears then, from the reason and equity of the law in the several cases enumerated, applied to the present case, that though the words of the Stamp Act did authorize a construc- tion that the Courts of Law should be shut up, that even in such case the words may be broken for necessity's sake, and in avoidance of a greater mischief.
But the words of the Act do by no means infer such to have been the intention of the Parliament. A law of such a tendency, and productive of such a change and subversive of the established principles and basis of the Constitution, could not be admitted by implication or intendment, and nothing less than clear, positive and express words can jus- tify an opinion that the Parliament had any such thing in view. The Act taken in the most rigorous sense does not absolutely prohibit the using of unstamped paper for any of the purposes enumerated in the Act, neither does it (except .in one particular case,) make any unstamped paper so used, void, as will be shown more fully hereafter.
It is evident, from the Act itself, that the obligation to use stamp paper depends upon and expressly refers to a previous condition, to be performed by the Commissioners of the stamp duty; and the penal clause of the Act must be taken altoge-
415
APPENDIX.
ther as connected with and having relation to that previous condition (Act, page 29).
It is, indeed, altogether superfluous and unnecessary to in- vestigate any other reasons for excusing the non-compliance with the Act-for it would be the greatest absurdity, and contrary to the clearest principles of reason and law, that any man should be punished for not doing a thing, the doing of which depended on the act and concurrence of another per- soll, whether that person would or would not enable him to do the thing required; for it is implied in the very idea of obedi- ence that the thing required is not only possible, but reasona- ble. The case, then, of not using the stamp paper being owing to the default of the Commissioners, or those whom they have appointed to distribute it, falls within the reason of the law in the following cases :
In debt for a house sold, the defendant said, that it was agreed between the plaintiff and him, that the plaintiff should pull down the said house at his own costs, and should remove it to such a place, and that then he should pay the plaintiff the said sum; and said that he was always ready to have paid the said sum, if the plaintiff had removed it, and this was adjudged a good plea, inasmuch as the contract was en- tire, and was not executed on the part of the plaintiff, and, also, the defendant could not compel the plaintiff to pull it down and remove it. If one grants or promises to give in marriage with his daughter so much money as T. S. shall award, it is held that, before T. S. hath awarded and appointed it, the party who has married the daughter shall not have remedy for any money. That, if one leases his land to A. for so many years as J. S. shall name, A. may not enter into the lands before J. S. hath named the number of years; for per- haps J. S. will never name any years, and then he shall never have any interest in the land.
If the condition of an obligation be that the obligor shall make all the linen the obligee shall wear during his life, the obligee must deliver to the obligor the cloth of which it is to be made. So, if a tailor is bound or promises to make a suit of clothes, the obligee ought to deliver him the cloth. If
416
APPENDIX.
a man be bound in £20, upon condition to pay £10 to such person as the obligee shall name by his last will, and after the obligor names no person by his will, the obligor is not bound to pay it to his executors; because the condition hath reference to his nomination. If the condition of an obligation be to pay all such costs as shall be stated by two arbitrators, by the obligee and obligor to be chosen, the obligee must choose an arbitrator, before he can show any fault in the obli- gor. By the condition of an obligation, a master is bound to make his apprentice free, on request, at the end of seven years ; and in debt on this obligation, the master pleads that he was not requested; and it was held that, in this case, the reques, was material, being part of the condition. If a man covet nant to build a house before such a day, and, after the plague is there, before the day, and continues there until after the day, this shall excuse him from the breach of the covenant; for the law will not compel a man to venture his life for it, but he may do it after. If A. leases to B. for years, upon condition, that if B. pays money to A., or his heirs, at a day that B. shall have the fee, and, before the day, A. is attainted of treason and executed; now, though the condition become impossible by the act and offence of A., yet B. shall not have a fee; because a precedent condition to increase an estate must be performed, and if it becomes impossible, no estate shall rise. These cases evince that, where there is a previous condition, either expressed or implied, that previous condition must be first performed before a subsequent one, dependent upon it, can have any operation, and the words of a condition ought to be as strictly performed as the words of any penal statute. Now, as there is the same reason in the present case, so there is the same law. The Stamp Act makes the obliga- tion to use stamp paper expressly dependent upon the contin- gency of their being first provided, and has a plain and clear reference to that circumstance of the officer's duty, and until that is done, the obligation to use it cannot bind. For, as in the case of the person who was to make the linen, and of the tailor who was to make a suit of clothes, they were not obliged thereto until the linen and cloth were furnished; so,
417
APPENDIX.
neither, under the Stamp Act, can any one be obliged to use stamp paper, until there is some person who will povide it. We will now consider the force and extent of the clause, which seems to take away the evidence and validity of any paper, not properly stamped, agreeable to the directions of the Act. The clause relative thereto runs thus. (Vide page 38.) The clause, also, necessarily supposes, that the colonies have been, from time to time, sufficiently furnished with parchment and paper, stamped or marked with the respective duties, agreeable to the directions given to the Commissioners in a preceding clause, and that the persons, having occasion to use them, may procure the same from the proper officer appointed to distribute them. It does not go so far (even if stamp paper were to be had) as to make the matter or thing, which, by the Act, is chargeable with a stamp duty, absolutely void; for not being stamped, it only suspends or postpones the efficacy and evidence of them, which, at any time afterwards, may be effectually restored, on complying with certain conditions required and enjoined by the next preceding clause, which being performed, the deed, instrument, matter or thing (though originally done without stamp paper) recovers its full force, validity and effect, as effectually as if the proper stamp had been impressed thereon at the time of the signing, sealing, or other execution, or entry, or enrollment thereof, (page 31). Nothing can be clearer than that the Parliament never enter- tained the least idea of making all transactions that required stamp paper void for want of stamp paper; or of prohibiting absolutely, in any situation, the use of unstamped paper; had such been their intention, the proviso would never have been inserted, as being directly repugnant and contradictory to their purpose. By the proviso, then, it is evident, that the Parlia- ment foresaw that many cases might occur, where, through accident, neglect, inadvertence, ignorance, or some other cause, the several papers required to be stamped might want that formality, and, therefore, their wisdom suggested a remedy, that the effect of such paper might not be lost, and that the party interested might have it in his power to cure the defect. If, then, a defect in any instrument, deed, matter, or thing,
27
418
APPENDIX.
happening through a man's own default, may be cured, as it most certainly may, by virtue of the proviso aforesaid, sure, no good reason can be given why the same benefit should not be extended to cases where a man errs (if it can be called so) through absolute necessity.
The manifest intention of the Stamp Act, is to secure the payment of the duty, not to make void any writing. The words of the Act are generally all matter and things, which are subject to a stamp duty, are also within the benefit of the proviso. Whether they be private transactions between man and man, or relate to public officers, or judicial proceedings, the law makes no distinction; and, therefore, it would seem, that process, or any other transactions in a Court of Law, may be cured of any defect, owing to the want of stamp paper, as well as any deed or other instrument. Now, as it is a rule in law, that all penal statutes are to be taken strictly, and not extended, by equity, to the prejudice of those upon whom the penalty is inflicted, but shall be taken favorably for them; it would be contrary to that rule, and the equitable and gen- uine scope of the Act, if all persons were not allowed the full extent and benefit of the proviso in every possible case which might occur, as the law gives a right, upon payment and double duty, to any man, to authenticate what might before have been defective under the Act, and no time is limited when he is obliged to do this. Natural justice requires, under the present circumstances of necessity, that he should not be prevented from availing himself of that future benefit when- ever it is in his power.
It should have been observed before, that Mr. Attorney General suggested that the cases, cited in support of the doctrine of necessity, refer to a legal necessity. It is certain, where a necessity is the effect of a man's own voluntary act, it will not excuse, as in the case of the prisoner who breaks jail, when the jail is on fire, he shall be excused; but if he himself set the jail on fire, he shall not. But it cannot be supposed in the present case, and ought not to be presumed, that the suitors of Court are instrumental in causing the necessity which has been so prejudicial to themselves; besides,
419
APPENDIX.
impossibilities, let them come from what cause they will, are still impossibilities; and the present occasion, which makes the impossibility of procuring stamp paper, is as much to be attributed to the act of God, as if the ship which had brought it into the province had been cast away in a storm-for nothing less than His immediate and irrisistable influence could have, as it were, in a moment, united all America, and made them as the heart of one man.
The end of the Act, which is to raise a revenue, will not and cannot be answered by shutting up the Courts of Justice ; so that this expedient cannot be said to be a compliance with the law, not being the object of it, but rather a circumvention of it, and has a manifest tendency to elude the Act: for the Judges are called upon in the several Courts, "to make such orders, and do such other matters and things, for the better security of the duties, as shall be lawfully or reasonably desired ;" so that the sitting of the Courts is absolutely neces- sary to give effect to the Act, and assistance to the persons who shall be appointed to attend in every Court agreeable to the directions thereof, to secure the said duties. Such a con- struction of the Act, then, as will necessarily involve in it a necessity of shutting up one of the Courts, must be absurd and ridiculous, because it would be turning the Act against itself, and making those very means, which it has appointed to assist its execution, subservient to the purpose of defeating it-for, without Courts, it will be impossible for this part of the Act, at least, to have effect.
The Courts of Law, as to every civil purpose, have been shut up full five months. This has not produced the least probability of assisting the execution of the Stamp Act. The obstacles to the procuring of stamp paper still exist. The misfortunes of the province increase; the necessities of indi- viduals call loudly for redress. The example of the mother country, at two memorable periods, immediately succeeding the death of Edward VI. and Charles I., show the sense of the nation, that no conjunction should put a stop to the ad- ministration of laws, or interrupt the course of justice; and although it was but a few days before Queen Mary was peace-
420
APPENDIX.
ably settled on the throne, yet the business of those few days which had been transacted in the name of Lady Jane Gray taking upon herself the title of Queen, were allowed of, and confirmed by, Parliament; and everybody knows what diver- sity of forms and style were introduced into the Courts of Law and judicial proceedings, until the restoration of Charles II., unknown to the Constitution, and repugnant to the genius of the laws. And yet these, also, were confirmed by Parlia- ment. These instances show that it is more eligible to over- leap even great obstacles, than to be in the wretched situation of a state of outlawry.
Deplorable must be the state of the country where the laws afford no protection or guard for property ; where disorder and confusion hold the reins; and, in a trading country, as this is, the evil is proportionably greater, as the occasion is more in- dispensable. In vain do we open our ports-in vain expect to follow our merchandise and pursue our commerce; for, while that vigilant watchman, the law, which should guard our city, is bound and fettered, danger from all quarters will assail us; and it may as reasonably be expected to preserve due circula- tion of the blood in the extreme parts of a man's body, when there is a total stagnation at the heart, as to expect peace, order, or safety, in a community, when the natural current of justice is obstructed. Besides, this being a suit, instituted before the time the Act commenced, and all the proceedings leading to judgment, having been previously carried on, it would seem that an Act, made ex post facto, should not be construed or strained so as to deprive the party of the benefit he had, as the law stood when he brought his action ; and the case of Gilmore and the executors of Shoolter (2d Mod. 310) seems to be in point. The plaintiff recovered, on a promise made before the Statute of Frauds, although his action was brought afterwards, and that Act is express, that no action shall be brought to charge any person, upon any agreement made upon consideration of marriage, unless the agreement, upon which such action shall be brought, or some memoran- dum or note thereof, shall be in writing and signed, &c. The Court said it cannot be presumed, that the Act was to have a
421
APPENDIX.
retrospect, so as to take away a right of action, to which the plaintiff was entitled before the Act commenced ; and, upon this principle, a judgment was given, not many years ago, by as able a Judge as ever sat on this Bench, Mr. Chief Justice Lee.
A person had been arrested for debt, and had petitioned for the benefit of the Insolvent Acts, before the time was expired that he could be admitted. Another Act of Assembly passed, requiring certain other terms and conditions to be performed by every person thereafter to be admitted to the benefit of the Act, and repeated all former Acts relating to that subject, and no provision was made, or exception, as to the persons who had petitioned under the former Acts. Yet the Chief Justice was of opinion that the Act should not be considered as having ratrospect to such persons as had applied under the former Acts; and admitted the persons to swear off, upon the terms of the Acts he had petitioned under, although at the time they were absolutely repealed and declared null and void.
Upon the whole, seeing that some things are for necessity's sake, and the avoidance of greater mischiefs, excepted out of statutes-that the laws are so excellently fitted to the exigen- cies and conveniencies of Government, and full of reason, that impossibilities are not required-that Judges do sometimes expound the words contrary to the text, in order to make them agree with reason and equity-that it is absolutely necessary to the well-being of society, that justice should be adminis- tered in the Courts of Law-that it is impossible to procure stamp paper-that the Parliament did not intend, for the want thereof, to make void the several matters required to be stamped-that the proviso in the Act admits that such mat- ters may be done without stamp paper, and provides a remedy in such cases-that judicial proceedings are within the very letter and benefit of the proviso, as well as any other transac- tions-that a discontinuance of process and shutting up the Courts are by no means a compliance with the Stamp Act, or authorized by it, or any wise instrumental in giving effect to it; for these reasons, and others which might be adduced,
422
APPENDIX.
the Assistant Judges are unanimously of opinion, that judg- ment be entered for plaintiff agreeable to the motion, in the usual manner as has heretofore been done: no stamp paper being to be had, and on consideration of the petition of the several persons presented to this Court, the Assistant Judges are, also, unanimously of opinion, that the process of this Court be issued out, in the usual manner to any person who shall require and apply for the same, that there may be no longer a complaint that justice is either delayed or denied.
It may not be amiss to observe a little upon what Mr. Attorney said, that this Act is a public Act, and, being pro- perly noticed to the Court, the Judges are obliged to take notice of it. The Assistant Judges have had no occasion to enter into a discussion of these points ; but it may be observed, in general, that there seems to be an absolute necessity for some regulation and reform in this particular. Nothing can be more reasonable and just than that people, who are to be bound by laws, should have the best security and evidence the nature of the thing will admit of, that those laws, which it is expected they will submit to, are really, certainly, and truly genuine laws.
The vague, uncertain and precarious manner of introducing and promulgating the laws of England among us, upon no better evidence than that they are said to be printed by the King's printer, (which may or may not be a fact,) is liable to too many striking objections, not to be alarming to the subject.
The Judges, in England, by their attendance in Parliament, and by the recourse that may be had to the Roll, may easily detect any mistake or error in a printed copy; but, in these remote regions of America, where there is no possibility of coming at the original, a mistake or design may involve us in the utmost distress. Lord Chief Justice Hale takes notice, in his Pleas of the Crown (1 Book, fol. 360) of a variance between the Parliament Roll and a printed statute, which had occa- sioned some mistakes in judgments given of high reason.
If printed copies, then, have been erroneous, and have mis- guided the Judges, in such important matters, in the Courts
423
APPENDIX.
at home, can it be wondered at if their authority should not be implicitly acquiesced in here, or that it should be thought expedient they should be authenticated.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.