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"It is not on slight implication, and vague conjecture, that the "Legislature is to be pronounced to have transcended its powers, "and its acts to be considered as void. The opposition between *' the constitution and the law, should be such, that the judge '' feels a clear and strong conviction of their incompatibility with '• each other"
Hgde v. The Planters Bank of Mississipi, 8 Rob. 422, Per Billiard, J; "No adjudged case has been referred to in support of this position, and a very strong case must be made out to enduce us to declare the Law of a neighbouring State unconstitutional, especially when it appears that the purpose of the law was in a
great measure remedial But this court will not
in any case of serious doubt as to the constitutionality of laws, pronounce them void especially when their operation is to protect our own citizens from injuries arising from the abuse of the banking power."
The State v. The Judge of the bth Judicial District, Per Eustis, C. J: "To determine on the constitutionality of laws, the cmestion whether the legislative branch of the Government has or not transcended its power, is the highest and most important act which the judiciary can be called upon to perform, and in the exercise of this responsible and delicate power, courts are bound to proceed with the greatest circumspection and deliberation. It has always been held that the presumption must always be in favour of the validity of laws, and that no law ought to be held unconstitutional, and consequently void and of no effect unless its opposition to the constitution be clear and free from doubt. It must be conceded that there is no article of the constitution with which this Statute is clearly or directly in conflict, and its repugnancy to the constitution is supported exclusively by implication. Without answering each argument of the respondent in detail, we think they will all be met by giving our views as to the judicial power as created by the constitution.
"The judicial power shall be vested in a Supreme Court, in District Courts, and in Justice of the Peace, Art. G3. This certainly means that the whole judicial power, (the power of determining all cases without exception or reserve,) is vested in these three classes of magistracy, and in establishing this power to provide for the determination of every case of injury, the convention which framed the constitution acted on the elementary principle in the English Law, in reference to which our constitution in the United States have all been made, that every right when withheld must have a remedy, and every wrong its proper redress." (*)
IV.—DE LA CONSTITUTIONALITY DE LA LOI CONCERNANT L'UNION ST. JACQUES DE MONTRÉAL ET DE QUELQUES DISPOSITIONS DE L'ACTE CONCERNANT LA FAILLITE, 18G9.
Ce n'est pas notre intention de discuter In valeur des motifs de la décision de l'honorable juge Torrance dans la cause de Bélisk vs. V Union St. Jacques, vu qu'elle a été portée en appel; qu'il nous soit néanmoins permis d'observer que la principale question que présente cette espèce est de savoir si les mots, banqueroute et faillite de la constitution, bankruptcy and insolvency, comprennent également la déconfiture des particuliers non commerçants, dont les rapports appartiennent tout particulièrement au droit civil. Lorsque l'on considère que les matières sur lesquelles le Parlement de la Puissance a juridiction, sont toutes de droit public ou commercial, ne peut-on mettre en doute que ces mots banqueroute et faillite ne s'appliquent qu'aux commerçants? Et si le doute est permis, ne doit-on pas maintenir la loi attaquée d'invalidité?
Il existe encore plusieurs lois dont la validité peut raisonnablement être mise en question. Que penser en effet des clauses 10e et 12e de l'Acte concernant la faillite 18G9, qui, en violation des lois formelles des Provinces, veulent que l'enregistrement d'uu acte de cession, sans description des immeubles soit effectif; des clauses 07, 77, 78 et 81 qui limitent si considérablement les privilèges du propriétaire et des employés ou commis; de la clause 114 qui permet l'examen de la femme du mari devant le juge ; et enfin de la clause 140 qui exige, à peine de nullité, l'enregistrement des contrats de mariage des femmes des commerçants'! Toutes ces clauses no consacrent-elles autant de dispositions contraires aux lois civiles de chaque province? Ou ne saurait prétendre qu'elles forment essentiellement partie des lois de banqueroute, car il est facile de les détacher de l'acte de faillite, sans l'atteindre d'une manière importante. Et enfin, s'il était permis au Parlement Fédéral d'introduire toute espèce de législation, sous prétexte qu'elle est inhérente aux lois de banqueroute, tout
(*) 15 An. Louis, 758—voir aussi les autorités citées dans Fletcher v. Peck, (1810), 6 Cranch 87.
notre Code Civil serait a la merci de nos legislateurs d'Ottawa. On a aboli en partie les privileges qu'il accorde aux loeateura et aux serviteurs; quelle garantie avons nous que deniain on ne retranchera pas absolument des hypotheques et autres surety's du droit civil? II faut admettre que le pouvoir du legislateur doit avoir des bornes, meme lorsqu'il s'agit du reglement des f'aillites et banqueroutes. A notre humble avis, sa juridiction ne s'e"tend alors qu'aux matieres qui appartienncnt essentiellement a. un systeme de faillite; et elle cesse du moment qu'il a pourvu a la disposition de l'actif et a la decharge du f'ailli.
INTRODUCTOBY LECTURE TO THE STUDY OF THE LAW,
By Christian Roselius, Esy.,
Attorney and Counsellor at Law, Dean of the Law Faculty nj t/i" I'nirenity
The science of jurisprudence, on the study of which it is our purpose to enter, is so vast and comprehensive in its range, and often, apparently, so contradictory and complicated in its details, that in order to avoid perplexity and confusion, we must, at the outset, take a survey of its general elements and [prominent outlines. It is proper therefore, in this introductory lecture, that I should spread before you, as it were, a map of the extensive field we are about to explore. By pursuing this course we shall discover at the very threshold of our inquiries that law is not composed of a collection of heterogeneous and incongruous rules, dictated by the mere whim and caprice of the law-maker; but that it is a beautiful and harmonious system, devised by the prot'oundest wisdom and foresight, to regulate the multifarious rights and obligations arising from the complex relations of social life, and founded substantially on the great and immutable principles of right and wrong, inscribed on the mind of man by the hand of his Creator.
Law, in the most enlarged sense of the word, is that power which exercises its dominion over everything, both in the physical and moral world. Hence law is divided into physical and moral law. The former is despotic and resistless in its sway ;—it governs and controls everything in the material world, from the smallest particle of dust we tread upon, to the countless heavenly bodies that roll in illimitable space. The latter consists of rules of action for the guidance of man alone, as a moral, intellectual and accountable being. Although the precepts of the moral lavs are obligatory and binding, yet man as a free agent, has the power of violating them, at his risk and peril. All nature is bound down to implicit obedience to irresistible laws, except man, who is left free to violate the special law given to him for the government of his moral conduct, because he acts under a fearful responsibility both here and hereafter. This moral or natural law is coeval with the human race, for history does not inform us of the existence of any people without it.
In the progress of society these original principles, or that primeval perception of right and wrong, were developed to meet the exigencies and wants of the people, and hence was gradually formed that regular system of laws, consisting of those rules of civil conduct, an observance of which can be enforced by the power of the State, and which is known by the appellation of the Municipal or Civil Laws.
But although the municipal law is, in the main, founded on and a mere development of the natural law, it must not be supposed that one is invariably conformable to the other. Motives of public policy, based on an infinite variety of considerations, frequently induce a people to adopt anomalous laws conflicting with those of nature.
Municipal Law is, in an enlarged sense, the expression of the whole public mind or conscience, either through the legislative department of the Government, or by the acquiescence of the people themselves, manifested by their acts and conduct. In the enactment of the written law the Legislature is the organ of the public mind; the unwritten or customary law is silently adopted by the people themselves. The law-making power is so inherent in the people that it never can be entirely wrested from them even by the most unmitigated despotism; for although the despot may, to a great extent, pervert and misrepresent the public mind, he cannot completely silence it. The history of every nation is replete with evidence of this important fact. When, for instance. under the regal government of Rome, arbitrary and oppressive laws, were enacted, repugnant to the public sentiment, the kingly power was subverted, and the Tarquins had to fly for their lives! When, at a subsequent period, the patricians oppressed their fellow-citizens by unequal and tyrannical laws, the plebeians rose upon their oppressors; resumed the legislative power; abolished those odious distinctions which the usurpation of the aristocracy had introduced into the laws; and adopted that series of profoundly wise plebiscite, which still challenge our admiration! Even in her decrepitude and decay, when Home was ruled with an iron rod, by the worst monsters that ever disgraced humanity, the public mind found an organ in the writings of those great lawyers, whose opinions obtained the force of laws and who built up and perfected that admirable system of jurisprudence which, by the common consent of mankind, has been honored by the appellation of written reason. Papinian was the contemporary of Caracalla, and was assassinated by that wretch, whose hands were still reeking with the blood of his brother, Geta, for refusing to write an apology for fratricide. The public mind of France was energetically, though silently,. expressed in its customary laws, during the worst and most absolute tyranny of its kings. An attempt to stifle the expression of the public mind in its laws, brought Charles the First to the block. The same effort on the part of the narrow-minded and obstinate George III, lost him the brightest jewel in his crown. Within our own recollection, we have witnessed two crowned heads driven into exile by the same cause, Charles X, and Louis Philippe of France. These examples might be multiplied to an almost indefinite extent; but a sufficient number has been cited to fortify my position. Hence it is obvious that no individual, or set of individuals, can be permitted to oppose their conscientious scruples to the binding force and effect of a law, without a total subversion of the whole social fabric.
Municipal or Civil Law, in its technical sense, is a rule of civil conduct, prescribed by the law-making power, an observance of which can be compelled, and its violation punished, through the judiciary department of the government. The word Civil is here used in contradistinction to moral conduct: all Civil conduct is productive of legal rights and obligations.
All the serious concerns of life resolve themselves into rights, duties and obligations. It is the province of the law to define and protect legal rights, and to enforce the performance of legal obligations. The terms legal rights and obligations, are used in contradistinction to that class of imperfect rights and duties