8 Ga. 210 | Ga. | 1850
By the Court.
delivering the opinion.
Alpheus Beall having departed this life, intestate, in July, 1848, administration was granted on his estate, to his widow and relict, Mary C. Beall. In September, 1849, "Win. H. Beall and Elisha H. Beall filed their bill against the said Mary C. in the Superior Court of Upson County — claiming, as the children and distributees of the intestate, two-tliirds of his estate. It is admitted that the complainants were born out of lawful wedlock; and their right to the property depends upon an Act of the Legislature, passed in 1843, and which is set forth in the record. By it, the names of sundry persons, in no way connected with each other, are changed, and they are respectively legitimated to their reputed parents.
The first section is in these words : “ Be it enacted by the Senate and Blouse of Representatives in General Assembly met, and it is hereby enacted, by the authority of the same, That the name of William Hiram Padgett, of the County of Muscogee, be changed to the name of William Hiram Beall; and that the name of Elisha Harvey Padgett, of said County, be changed to that of Elisha Harvey Beall; and that they be legitimatised, and known as the legitimate children of Alpheus Beall, of Upson County— their reputed father — and fully capable of inheriting real and personal estate of the said Alpheus Beall, by virtue of the Statute of Distributions of this State, and entitled to all the privileges which they would have been, had they been bom in lawful wedlock.” Pamphlet Laws, p. 176, A. D. 1843.
But for the zeal and ability with which the complainants’ right
Judge Blackstone says, that a bastard may be made legitimate and capable of inheriting, by the transcendant power of an act of Parliament, and not otherwise. 1 Bl. Com. 369.
Has the Legislature of Georgia the same power over this subject, which is possessed by the British Parliament?
This inquiry leads, necessarily, to an examination of the relative powers possessed by the British Parliament and our State Legislature, and the foundations upon which they respectively rest.
But here, we have written Constitutions, both in the Federal Government and the individual States; and these written Constitutions are the acts of the people, and not of the Government. In these, their sovereign will is embodied — and by these, the powers of Government are respectively distributed into three distinct and co-ordinate branches — viz. the legislative, the executive, and the judiciary — all of which are equally bound by duty to their constituents, the people.
While I utterly repudiate the opinion of Mr. Jefferson, “ that the ordinary Legislature may alter the Constitution itself,” [Notes on Virginia, p. 215,) (except in the mode which the people themselves may prescribe in that instrument — (see Art. 4, §15, Prince, 913,) — for this, indeed, would be to clothe republican Legislatures with the omnipotence attributed to the British Parliament) — yet, I ask, is it not manifest, that all acts of the Legislature are valid, which do not violate, infringe or impair the Federal Constitution, the laws of the United States, made pursuant thereto, any treaty made under the authority of the United States, and the Constitution of this State?
If it is not so, then the idea that the people are sovereign, in this State, is a vain phantom. If the Executive or Judiciary refuse to execute, in good faith, the will of the people, as constitutionally expressed in the Acts of the Legislature, passed in subordination to the Constitution, then, indeed, is the foundation of public tran
Our conclusion, therefore, is, that the General Assembly had the power to pass this Act. It is one which has been exercised ever since the organization of the State Government, and one which is habitually practised by every State Legislature in the Union. See Griffith’s Annual Law Register, title, Bastards, and Statutes of Georgia, passim.
The right here asserted, is a necessary attribute of every Court in the country, as will appear from the fact, that if there happens to be an irreconcilable variance between the Constitution — which is the fundamental law — and a particulur Act proceeding from the legislative body, tj¡at which has the superior obligation and validity, ought, of course, to be preferred; in other words, the Constitution qught to be preferred to the Statute — the intention of the people, to the intention of their agents. Nor does this conclusion, as is shown in the work first aboye cited, by ariy means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the Legislature, declared in Statutes, stands in opposition to that of the people, declared in the Constitution, the Judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than those which are not fundamental. If two Statutes clash, the Courts decide that the last in order of time shall control; and if the will c>f the original and superior authority interferes with that of the derivative and inferior, nature and reason alike teach, that the
The following apposite remarks are from Mr. James Wilson, formerly one of the Associate Justices of the Supreme Court of the United States:
“ In this country, the legislative authority is subjected to the control arising from the Constitution. From the Constitution, the legislative department, as well as every other part of the Government, derives its power; by the Constitution, the legislative, •as well as every other department, must be directed; of the Constitution, no alteration by the Legislature can be made or authorized. In our systems of jurisprudence, these pdsitlons appear to be incontrovertible. The Constitution is thd Supreme law of the land. To that supreme law, every other jloiver must foe inferior and subordinate.
“ Now, let us suppose, that the Legislature should pass an Act manifestly repugnant to some part of the Constitution, and that the operation and validity of both should come regularly in question, before any Court. The business and design of the judicial power is, to administer justice, according to the law of the land. According to two contradictory rules, justice, in the nature of things, cannot possibly, be administered. One of them must, of necessity, give place to the other. Both, according td otír supposition, come regularly before the Court, for its decision on their operation and validity. It is the right, and it is the duty, of the Court, to decide upon them. Its decision must be made, for justice must be administered, according to the law of the land. Wheu the question occurs — What is the law of the land 1 — it must also decide this question. In what manner is this question to be decided l The answer seems to be a very easy one'¡ The supreme power has given one rule — a subordinate power has given a contradictory rule ; the former is the law of the land; as a necessary consequence, the latter is void, and has no operation.
“ This is the necessary result of the distribution of power, made by the Constitution, between the Legislature and the judicial departments. The same Constitution is the supreme law to both. If that Constitution be infringed by one, it is no reason that the
“ The effects of this salutary regulation, necessarily resulting from'the Constitution, are great and illustrious. In consequence of it, the bounds of the legislative power — a power the most apt to overleap its bounds — are not only distinctly marked in the system itself, but effectual and permanent provision is made, that every transgression of those bounds shall be adjudged and rendered vain and fruitless. What a noble guard against legislative despotism!
“ This regulation is far from throwing any disparagement upon the legislative department. It does not confer upon the judiciary a power, superior in its general nature, to that of the Legislature; but it confers upon it, in particular instances, and for particular purposes, the power of declaring and enforcing the superior powers of the Constitution — the supreme law of the land.
" This regulation, when considered properly, is viewed in a favorable light by the Legislature itself: ‘ It has been objected/ said Mr. Boudinot, a learned and distinguished member of Congress, ‘ that by adopting the bill before us, we expose the measure to be considered and defeated by the Judiciary, which may adjudge it to be contrary to the Constitution, and therefore void, and not lend their aid to carry it into execution. This gives me no uneasiness. I am so far from controverting this right in the Judiciary, that it is my boast and my confidence. It leads me to greater decision on all subjects of a constitutional nature, when I reflect, that if, from inattention, want of precision, or any other defect, I should do wrong, there is a power in .the Government which can constitutionally prevent the operation of a wrong measure from affecting my constituents. I am legislating for a nation, and for thousands yet unborn; and it is the glory of the Constitution, that there is a remedy for the failures even of the Legislature itself.’ ” Wilson’s Lectures on Law, 1 vol. 460, ’1, ’2, ’3.
I could multiply quotations to the same effect, to any extent, from Judge Tucker, in his Appendix to Blackstone — Mr. Justice Woodbury, in Merrill vs. Sherburne, 1 N. Hamp. Rep. 199 — and many others of the ablest and soundest constitutional jurists and statesmen that have adorned our country. But these, I hope, will suffice to place this delicate and important principle in its true
I should seriously question the power of the Legislature to pass a private Act, changing the law of descent, as it respects one individual of the community, without his consent, when it left all the rest of the citizens of the State unmolested by its operation. Such an Act, in my humble judgment, to be valid, must be on petition of the party, or by his consent, express or implied. The Constitution, it is admitted, authorizes the Legislature to pass all laws; but one of the essential elements of law is, it must be general — a rule prescribed for the civil conduct of the whole community, and not a transient order from a’ superior, to . or concerning a particular person. 1 Bl. Com. 44. Under our institutions, all men are considered as equal, and the same laws should apply alike to all. If it be fit and proper that one individual’s property should descend in a particular way, then it is equally so, that every other individual’s should descend the same way. This is the very genius and spirit of our system; and were the Legislature to single out an individual and declare, that, dying intestate and wanting lineal descendants, his uncles, instead of his cousins, should inherit his estate, but that in every other case the cousins should be the next collateral heirs, we should be strongly inclined to hold, that this was not law, for the reason already assigned.
Our answer to this position, however, is, that the people of Georgia, in their written Constitution, have seen fit to intrust the General Assembly, and not the Judiciary, with the discretion of determining whether or not this kind of legislation is promotive of tli8 public morality, or, ip other words, is “for the good of the State;” and should we, as we have been so solemnly and eloquently urged to do, assume jurisdiction over a subject that, in the distribution of power, has been committed to another department of the Government, the question might well be propounded to us, which was addressed to Moses, by the Hebrew, “ who made fee a judge” in this matter ? And I apprehend, we shoulc}
In Beachcroft vs. Beachcroft, (1 Mad. Rep. 430,) the testator died a bachelor, leaving five natural children by an East Indian woman. He bequeathed, by his will, 65000 to each of his children, and 6000 Sicca rupees to the mother of his children. There was no other description of the legatees in the will. It was allowed to be proved, dehors the will, that the testator had recognized them as his children, and had sent three of them to England for an education. The legacies were decreed to them.
The point in Gardner vs. Heyer, (2 Paige, 11,) was, whether the four natural children of the testator — one son and three daughters — should take as legatees under his will? And Chancellor Walworth thus expresses himself, “ If there is not some
A question arose, under the Virginia Act, in Stones vs. Keeling, (note to Rice vs. Efford, 3 Hen. & Munf. 228,) when the Court seemed to think, that illegitimacy was to be viewed very differently, where matters of property and succession were concerned, than in criminal prosecutions; and that, notwithstanding any legal bar, the law ought, in the former case, to receive the most liberal construction, “it being undoubtedly the design of the Legislature to establish the most liberal and extensive rules of succession to estates, in favor of all in whose favor the intestate himself, had he made a will, might have been supposed to be influenced; and here, there can be no doubt, had he died testate, that these (natural) daughters would have been the first objects of his care.”
I am fully warranted in this assertion, by the facts set forth in the following extract from the complainants’ bill, and which, by the demurrer, are admitted to be true:
“ And your orators charge, that sometime before the death of said Alpheus Beall, (near twelve months,) he wrote a letter to Frederick Beall, his brother, at Lumpkin, Stewart County, to come and see him; that said Frederick did come to Thomaston, in pursuance of the request, and when the said Alpheus Beall met
“ Your orators charge, that Frederick Beall is now deceased; but your orators charge, that all these things that passed between said Alpheus Beall and his said brother, were known to said Mary C. Beall.”
In the case of Pratt’s Lessee vs. Flamer et al. (5 Har. & Johns. 10,) the Court say, “Where can be the justice or policy in punishing the innocent offspring for the criminal, illegitimate intercourse between their parents? Their situation is deplorable enough, without being deprived of the pecuniary aid of those who brought them, disgracefully, into existence. It is difficult to discern what principle of policy it is, that will enable the father of illegitimate born children, to provide for those who have lived long enough to acquire a reputed name, that will exclude him from making provision for the child that is unborn, and who, when it comes into existence, will stand more in need of his assistance. Let the policy of the English Courts have been what it might in the reign of Elizabeth,it has long ceased to be the policy of Maryland, to have natural children unprovided for; on the contrary, the subsequent marriage of the parents, legitimates the
These quotations will suffice to show, that Courts and Judges distinguished for their ability, have regarded bastards as having strong claims to equitable protection; on the other hand, it is due to candor to state, that there are cases where Courts have withheld from them every favorable intendment which the lawful heir would have been entitled to, as of course.
The separation of the three powers of the Government is not as total as the terms of this article would seem to imply.
“ It was well known and considered,” says Mr. Woodbury, in the New Hampshire case already cited, that “ in the distinct and separate existence of the judicial power, consists one main preservative of public liberty. 1 Bl. Com. 269. That, indeed, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Montesquieu, b. 11, ch. 6. In other words, that the union of these two powers is tyranny. 7 Johns. Rep. 508. Or, as Mr. Madison observes, may justly be pronounced the very definition of tyranny. Fed. no. 47. Or, in the language of Mr. Jefferson, is precisely the definition of despotic government. Notes on Virginia, 195.”
If the usurpation of judicial power by the other departments, is thus pointedly denounced and rebuked by the friends of free government, we will endeavor cautiously to abstain from any usurpation on our part.
We are, therefore, of the opinion, that the judgment rendered in the Superior Court ought tobe affirmed.
Per Curiam. — Judgment affirmed.