Ogden v. Witherspoon , 18 F. Cas. 618 ( 1802 )

In the act of 1789 there is this clause: "That all laws and parts of law that come within the meaning and purview of this act are hereby declared void and of no effect." There are two (228) rules for determining what act shall be deemed to be repealed by a later one. If the latter be inconsistent with the former, it repeals the former. If it be reconcilable with the former, but legislates upon the same subjects as the former does, and repeals all other laws within its purview, the former is repealed. Then, what is the subject of section 9 of the act of 1715? The estates of all dead men, and all creditors upon them, and a limitation of the time for the exhibition of such claims. What is the subject of the latter act? Precisely the same estates and persons, and a limitation of the time for bringing forward their claims. There is a legislation in both acts upon the same cases. The repealing clause, then, extends to the section in question. The act of 1715 prescribes a limitation, without an exception of persons; the act of 1789 excepts persons under disabilities, such a femes covert and the like. If the act of 1715 be in force, persons under disabilities will be excepted until the expiration of seven years, and not afterwards; for at that period all persons will be barred by the act of 1715, if it stand with the act of 1789. But why should the Legislature design a permission for persons under disabilities to sue after the time prescribed in the act of 1789 for other persons, and until the completion of the seven years fixed by the act of 1715, and not afterwards? The same reason which continued the exception till the expiration of seven years will still operate to continue it longer. If the exceptions are to last, as mentioned by the act of 1789, until the disabilities be removed, then the act of 1715 must be repealed. The act of 1799 declares that the act of 1715 hath continued, and shall continue, to be in force. I will not say at this time that a retrospective law may not be made; but if its retrospective view be not clearly expressed, construction ought not to aid it. That, however, is not the objection to this act. The Bill of Rights of this State, which is declared to be a part of the Constitution, says in section 4: "That the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other." The separation in these powers has been deemed by the people of almost all the states as essential to liberty. And the question here is, Does it belong to the judiciary to decide upon laws when made, and the extent and operation of them, or to the Legislature? If it belongs to the judiciary, then the matter decided by this act, namely, whether the act of 1789 be a repeal of section 9 of 1715, is a judicial matter and not a legislative one. The determination is made by a branch of government not authorized by the Constitution to make it, and is, therefore, in my judgment, void. It seems, also, to be void for another reason: Section 10 of the first article of the Federal Constitution prohibits the states to pass any law impairing the obligation of contracts. Now, will it not impair this obligation if a contract which, at the time of passing the act of 1789, might be recovered on by the creditor, shall by the operation of the act (229) of 1799 be entirely deprived of his remedy?

Upon the point of suspension of the act of 1715, prior to its repeal by the act of 1789, I am of opinion with my brother judge, and for the reasons by him given, that it was suspended, and continued so till the act of 1787 declaring the treaty of 1783 to be a part of the law of the land, for it was not settled till the making of the Federal Constitution that treaties should ipso facto become a part of the laws of every state, without any act of the State Legislature to make them so. It has been argued that by an act passed in 1791 all acts and parts of acts retained in the compilation of Mr. Iredell, and not by him declared to be repealed or obsolete or not in force, shall be held to be in force; and that section 9 of the act of 1715 being retained therein, and having no such declaration attached to it, is therefore in force. The whole of 1789 is also retained, and the repealing clause, as well as the other parts of the act; and if the repealing clause be in force, as no doubt it is, it had the same effect in 1791 as in 1788 and 1789, and continued to keep section 9 of the act of 1715 repealed until the passing of the act of 1799.

This cause was removed to the Supreme Court by a writ of error, where it was also decided that the act of 1715 had not been repealed by the act of 1789.

NOTE. — The reporter was of the same opinion in 1799, when he published the manual, and placed the act of 1715, as taking effect in 1799; but TAYLOR, J., and some of the other judges of the Court of Conference, were of a different opinion, and held the act of 1715 not to have been repealed by that of 1789.

NOTE. — See Young, Miller Co. v. Farrel, ante, 219, and the note thereto.