To William H. Torrance
Monticello June 11. 15.
I recieved a few days ago your favor of May 5. stating a question on a law of the state of Georgia which suspends judgments for a limited time, and asking my opinion whether it may be valid under the inhibition of our constitution to pass laws impairing the obligations of contracts. it is more than 40. years since I have quitted the practice of the law and been engaged in vocations which furnished little occasion of preserving a familiarity with that science. I am far therefore from being qualified to decide on the problems it presents and certainly not disposed to obtrude in a case where gentlemen have been consulted of the first qualifications, and of actual and daily familiarity with the subject; especially too in a question on the law of another state. we have in this state a law resembling in some degree that you quote, suspending executions until a year after the treaty of peace; but no question under it has been raised before the courts. it is also I believe expected that when this shall expire, in consideration of the absolute impossibility of procuring coin to satisfy judgments, a law will be past, similar to that passed in England on suspending the cash payments of their bank. that provided that on refusal by a party to recieve notes of the bank of England in any case either of past or future contracts, the judgment should be suspended during the continuance of that act, bearing however legal interest. they seemed to consider that it was not this law which changed the conditions of the contract, but the circumstances which had arisen, and had rendered it’s literal execution impossible, by the disappearance of the metallic medium stipulated by the contract: that the parties not concurring in a reasonable and just accomodation, it became the duty of the legislature to arbitrate between them, and that, less restrained than the Duke of Venice by ‘the letter of the decree’ they were free to adjudge to Shyloc a reasonable equivalent. and I believe that in our states this umpirage of the legislatures has been generally interposed in cases where a literal execution of contract has, by a change of circumstances become impossible, or, if enforced, would produce a disproportion1 between the subject of the contract and it’s price which the parties did not contemplate at the time of the contract.
The 2d question whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. certainly there is not a word in the constitution which has given that power to them more than to the Executive or Legislative branches. questions of property, of character and of crime being ascribed to the judges, through a definite course of legal proceeding, laws involving such questions belong of course to them; and as they decide on them ultimately & without appeal, they of course decide, for themselves, the constitutional validity of the law. on laws again prescribing executive action, & to be administered by that branch ultimately and without appeal, the Executive must decide for themselves also, whether, under the constitution, they are valid or not. so also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, & equally without appeal or controul from it’s coordinate branches. and, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrouled by the opinions of the other coordinate authorities. it may be said that contradictory decisions may arise in such case, and produce inconvenience. this is possible, and is a necessary failing in all human proceedings. yet the prudence of the public functionaries, and authority of public opinion will generally produce accomodation. such an instance of difference occurred between the judges of England (in the time of Ld Holt) and the House of Commons. but the prudence of those bodies prevented inconvenience from it. so in the cases of Duane and of William Smith of S. Carolina, whose characters of citizenship stood precisely on the same ground, the judges in a question of meum and tuum which came before them, decided that Duane was not a citizen; and in a question of membership the House of Representatives under the same words of the same provision2 adjudged William Smith to be a citizen. yet no inconvenience has ensued these contradictory decisions. this is what I believe myself to be sound. but there is another opinion entertained by some men of such judgment & information as to lessen my confidence in my own. that is, that the legislature alone is the exclusive expounder of the sense of the constitution in every part of it whatever. and they alledge in it’s support that this branch has authority, to impeach and punish a member of either of the others acting contrary to it’s declaration of the sense of the constitution. it may indeed be answered that an act may still be valid altho’ the party is punished for it, right or wrong. however this opinion which ascribes exclusive exposition to the legislature merits respect for it’s safety, there being in the body of the nation a controul over them, which, if expressed by rejection on the subsequent exercise of their elective franchise, enlists public opinion against their exposition, and encourages a judge or Executive on a future occasion3 to adhere to their former opinion. between these two doctrines, every one has a right to chuse; and I know of no third meriting any respect.
I have thus, Sir, frankly, without the honor of your acquaintance, confided to you my opinion; trusting assuredly that no use will be made of it which shall commit me to the contentions of the newspapers. from that field of disquietude my age asks exemption and permission to enjoy the privileged tranquility of a private and unmedling citizen. In this confidence accept the assurance of my respect and consideration.
PoC (DLC); at foot of first page: “Mr W. H. Torrance.” Tr (MHi); posthumous copy; top of final two pages torn.
William H. Torrance (1792–1837), attorney, was a native of South Carolina who moved with his family in 1811 to Milledgeville, Georgia. He served in the Georgia militia during the War of 1812. Torrance migrated in 1815 to Augusta, Georgia. After an unsuccessful venture in the cotton business, he studied law, opening a practice in 1820 at Milledgeville. In 1825 Torrance served on a state commission appointed to investigate alleged irregularities in recent negotiations with the Creek Indians (Stephen F. Miller, Bench and Bar of Georgia: Memoirs and Sketches , 1:296–317; ASP, Indian Affairs, 2:820–61; Report of the Select Committee of the House of Representatives … March 3, 1827 [1827; report no. 98]; Macon Georgia Telegraph, 30 May 1837).
Torrance’s 5 May 1815 favor to TJ, not found, is recorded in SJL as received 4 June 1815 from Milledgeville.
The law of the state of georgia entitled “An Act To authorize the several Courts of Equity in this State to grant remedies in certain cases and to regulate the Courts of Law and Equity in this state, and for affording temporary relief to the Soldiers whilst in the service of this state or of the United States, and for other purposes,” 23 Nov. 1814, provided that after a verdict was given in a state court, the party against whom judgment was rendered could give security for the debt and stay execution for a year. It also shielded a soldier’s property from seizure while he was in the service of Georgia or of the United States “or on his way to or returning from the place of rendezvous, or within six months after the expiration of the term of service” (Acts of the General Assembly of the State of Georgia, passed at Milledgeville, At an Annual Session, in October and November, 1814 [Milledgeville, 1814], 3–5). Article 1, section 10, of the United States constitution prohibits states from passing any “Law impairing the Obligation of Contracts.” The Virginia law resembling that of Georgia was a 25 Nov. 1814 “Act concerning Executions, and for other purposes,” which provided “That the defendant or defendants shall have power to stay any execution upon any judgment or decree for money, … by tendering to the Court or Justice of the Peace, by whom the judgment or decree shall have been rendered, bond and sufficient security, payable to the plaintiff or plaintiffs, his, her or their executors, adminstrators or assigns, in double the amount of the demand, conditioned to pay the amount of principal and interest, at the repeal or expiration of this Act”; protected the property of those debtors who “shall be ordered into the militia service of this State or of the United States, during the time that such debtor or debtors shall continue in actual military service”; and continued in force until 1 Mar. 1816 (Acts of Assembly description begins Acts of the General Assembly of Virginia (cited by session; title varies over time) description ends [1814–15 sess.], 68–75).
The Bank of England suspended cash payments between 1797 and 1819 (Ralph G. Hawtrey, “The Bank Restriction of 1797,” Economic Journal 28 : 52). The letter of the decree is derived from William Shakespeare, The Merchant of Venice, act 4, scene 1, in which the Duke of Venice presides over a trial at which Shylock insists that the court uphold the literal meaning of the law and award him a pound of flesh. An instance of difference occurred in England with the 1702 case of Ashby v. White, in which Sir John holt, chief justice of the Court of King’s Bench, argued that the courts, and not the House of Commons, had the authority to determine the right of an individual to vote in a parliamentary election (ODNB description begins H. C. G. Matthew and Brian Harrison, eds., Oxford Dictionary of National Biography, 2004, 60 vols. description ends ; Paul Hamburger, Law and Judicial Duty , 227).
Although William Duane was born in the United States nearly eleven years before his family moved to Ireland in about 1771, he did not return to the United States until 1796, having previously resided in London and India. The case in which a court ruled that he was not a citizen on a question of meum and tuum has not been identified. Duane’s citizenship was also questioned when he was tried and acquitted in 1799 on federal charges of fomenting a “seditious riot” while obtaining petition signatures against the 25 June 1798 Alien Act (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ; James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties , 277–306, 438–40; Francis Wharton, State Trials of the United States during the Administrations of Washington and Adams , 345–91).
Like Duane, William Loughton Smith had been born in the United States but spent much of his youth and early adulthood abroad, in Geneva and London. He did not return to the United States until 1783. A political opponent alleged that Smith’s election to the United States house of representatives in 1788 was invalid “by reason that he had not been seven years a citizen of the United States” at the time of his election. On 22 May 1789 the House rejected this interpretation of Article 1, section 2, of the Constitution (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ; First Federal Congress description begins Linda Grant De Pauw and others, eds., Documentary History of the First Federal Congress, 1972– , 17 vols. description ends , 8:542–54, 10:759–79).
1. Tr: “disapprobation.”
2. Preceding eight words interlined.
3. Reworked from “a future judge or Executive.”
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