complain of. It is a principle every where recognized that no man ought to be dispossessed of his property, unless he has forfeited it by crimes and injury done to society ;— and even here, MALICE must be apparent! This act ought not to exist as it is contrary to the first law of the land, and likewise contrary to justice and reason, and the very design of government.

Justice, we are told by every statesman and by every jurisconsult, should be the guide of popular governments. In fact, nothing but Justice can insure the stability of any form of government whatever. The ancients were well impressed with this fact even before men were enlightened with the rays of the gospel, or by the revelation of God, antecedent to the Christian era. Cicero said "if confidence is not preserved, no republic can stand; and there is no confidence among men when debtors can be exempt from paying their debts."

Dionysius of Halicarnasus says; "We should never withdraw from human society the sacred wages of public faith." Now, when a law is in force, which prevents the payment of just debts, is it not intended to withdraw from society the "sacred wages of public faith" and bring confusion among the transactions of men? Instead of binding men to their honest engagements, which interest, or a fraudulent disposition, (too often the predominant passions of men,) prompts them not to fulfil; this act confers the right to commit frauds!-Is not this sapping confidence, which ought to bind society together, at the very root? Is it not calculated to raise contentions and seditions dangerous to all circles of society, and detrimental in every shape to the safety and happiness of the people?-Most certainly, and this must strike every man!-We cannot believe for one moment, when our honorable legislators see the objectionable features of this act, that their judgments can be so warped by the sophistry of a few interested men, as to retain in force an act of such "abomination."

ARGUMENT IV.

It impairs the validity of contracts directly.

This is contrary to the letter and import of the Constitution, and in open violation to the rights of free citizens. We have shown, in some measure, this point in the foregoing, and we shall now beg leave to adduce a few more arguments in support of our position. It never was the intention of the American people to give omnipotence to their government, nor, indeed, to any branch thereof, and this fact is laid down in the constitution, which says, "all power is originally vested in the people, and all free governments are founded, on their authority, and instituted for their peace, safety and happiness.". Here, then, we contend, that according to the meaning of this passage, no authority whatever is granted to any set of men, to do an injury to any free citizen, whether they are acting in the capacity of legislators, judges, or any other: nor can the legislature grant, or delegate a power to any one, that has not been first expressly granted to it by the constitution, or by the fitness of things, for the better regulation of society.-The power of our Legislature is limited then, by the Constitution, and when they step out of these limits, their acts cannot be binding to any citizen of this commonwealth. This, if we are not misinformed, was decided by our Judiciary not long since, and must yet be fresh upon the minds of every one. With deference, then, to an honourable member from Christ church Parish, we beg leave to differ from him, when he asserts that he is "elected guardian over the people," to excercise the function of a censor over them, or any part of them, however small the number may be.-"All power is originally vested in the people," and not in any branch of the Government, which is only instituted for the people's peace, safety and happiness. It is, therefore, very evident, that we, the people, have not elected "guardians" nor masters over us; but servants, with limited powers, to regulate our affairs for our own safety. The limits of our Legislative acts must be founded in Justice, according to the above declaration of our charter, or else that instrument has no meaning. The Legislator's guide must be, the Constitution and the welfare of his constituents.We have no doubt, but that these have always been the foundation of every enactment of our honourable Legislature, and if, on any occasion, they have swerved from this path, it is only to be attributed to the imperfection of human wisdom. and not to a predi

lection for usurpation, or a desire to tyrannize over their constituents; and we wish to be distinctly understood, as not insinuating any thing to the contrary.

We have already shown that a law which granted a power to a class of men to do injustice to another, was opposed to the spirit of the Constitution. We shall now endeavour to prove from the same instruments that the prosecution of an innocentman is also contrary to it,-"all prosecutions shall be carried on and in the name of the State of South Carolina and conclude against the peace and dignity of the State." Now, it must be evident that a prosecution that cannot sustain a violation of any moral principle is "against the peace and dignity of the State." and such prosecution must also be unconstitutional; otherwise the phraseology is unmeaning. An enactment which would sentence a man to pay an exhorbitant fine of $500 and deprive him of his liberty for six months, without having committed any offence against moral or divine law, or the peace and dignity of the State, is an open violation of every principle of justice, reason and humanity, and is a palpable violation of the Constitution, as above quoted.

We now come to another passage from that document which is even more apposite than those already referred to; and which, we think, will demonstrate our position, if possible more clearly. Act 9th Sec. 2nd "nor shall any law impairing the validity of contracts ever be passed by the Legislature of this State." This also is expressed in the Constitution of the United States, and we will extract from the Constitutional Guide the comments on this passage, by several of the most eminent baristers and statesmen, as collected by R. K. Moulton.

"Law impairing the obligation of a contract."

"The federalist very justly observes that bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the just principles of the social compact, and to every principle of sound Legislation.

"The same author, at the time the adoption of the Federal Constitution was under consideration, further observed.

"That, the sober people of America have seen, with regret and indignation, that sudden changes and legislative interferences in cases affecting personal rights, became jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.

In order to a just conception of the term impair the obligation of contracts it is pro per that we consider:

"1st What is a contract?

"2nd What is the obligation of a contract?

"3rd What is impairing a contract?

ANSWER.

"1st A contract is a compact entered into between two persons to do or not to do a particular thing. A contract is executory or executed: an executory contract is one in which a party binds himself to do or not to do a particular thing. An executed contract is performed. This differs nothing from a grant.

"Every grant (whether by the Legislature or otherwise) in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert it.Contracts too are express or implied. Express contracts are where the terms of the agreement are openly avowed and uttered at the time of the making it. Implied contracts are such as reason and justice dictates from the nature of the transaction, and which therefore the law presumes, every man undertakes to perform. "The larger class of contracts in civil society, in the ordinary transactions of life, are implied, (Example. If at the request of a person I were to do a piece of work for him, without any stipulated price, it would be an implied contract, and the law would allow me a fair and reasonable compensation for my services.)-Compiler. "2nd What is the obligation of a contract?

ANS. "Whatever I, by my contract, give another a right to require of me. I, by that act lay myself under an obligation to yield or bestow. It is generally understood that the existing laws of the State in which the contract is made, if made by the citizens of

"

the State; such for instance as relate to insolvency, limitation of payment and the like, are taken into consideration, and constitute a part of the contract, ana that no law passed subsequent to the making of the contract, can effect the claims or liabilities of the parties, existing by law at the time of making the contract.

3rd What may be properly deemed impairing the obligation of contracts in the sense of the Constitution.

It is perfectly clear that any law which enlarges, abridges, or in manner changes the intention of the parties, resulting from stipulations on the contract, necessarily impairs it."

It is well known, and will not be denied, that there are cases wherein the Legislature has a right to regulate, and even abolish, a contract between individuals. For instance, when fraud is proved to have been a motive for one or both the parties: when either or both the parties are minors, or insane, or incapacitated by other reasons, or when one is forced to the contract by fear; in short, the legislature has a right to annul any unjust contract, as they are defined in the common law; and the constitution is well understood not to embrace more than what is defined a lawful contract by the common law, which was in existence prior to the constitution of this State and of the United States, and with which law the framers of the constitution were well acquainted. We are very certain that the Thomsonian practitioners are not less freemen or less capable of transacting business because their opinions regarding the practice of medicine are not recognised by the Medical Society of the State; therefore, it cannot be said, that we are not capable to enter into a bond with any sane man of this commonwealth. The common law is sufficiently explicit upon this subject without any interference of the Legislature by a law of altainder; for the act of 1817, can certainly be styled nothing less than a law of attainder, where it is intended to bear only upon certain persons, and in particular cases, not otherwise authorised by law or justice, and we are sure it is contrary to solid reason, to equity and above all, to the Constitution of this State and of the United States. It would exceed our limits to quote more authorities to prove what we have asserted, viz. that the act of 1817 is a law impairing the obligation of contracts within the meaning of the constitution, and therefore must be null and void, and we would remark here that we are sustained by the opinion of an eminent jurist of South-Carolina upon this very subject.

ARGUMENT V.

Because an act encouraging such practises is demoralizing to the community. This law is not only unjust and unconstitutional, but it is immoral in its tendency, because it affords a privilege to the dishonest of evading the payment of just debts, whereas an honest man would not avail himself of such a paultry advantage. It robs a man of his earnings, which are considered by every principle of justice and reason, his property and lawful right. When a man employs another in his service, the law considers that a contract is made between the parties, and the employer is bound to pay the other for his services. No gentleman will call a man into his employ with the intention of de frauding him of his recompense. Therefore the act of 1817 only offers protection to the rogue, and the evil disposed, to oppress the honest and humane. It matters not how much benefit one might receive from his neighbour, as a medical attendant, he is not to receive a cent in return.-Such a law is a disgrace to any people. The blue laws of Connecticut, are a code of wisdom and sound morals when compared with this act, which protects the rogue in defrauding his neighbour of his earnings and his property.

There is still another demoralizing feature in this bill, it and is this: A person disposed to evade the payment of a just debt, and being in want of a physician, will apply to the Thomsonian practitioners to administer to those who are in need, and in his care, rather than to a physician who can force him to pay him a due compensation for his services-and here the law, instead of prohibiting any from practising who may not have first obtained a licence, (as was its original intention) has the contrary effect.-But the greatest absurdity of the bill is, that it is not the practice which is punishable, but merely the receiving payment for services rendered. Now if the deed itself be not immoral or punishable, how can the act of receiving money for valuable services and property, be rendered punishable.? This indeed is "passing strane," and is an anomaly in the annals of Legislation.

THE SOUTHERN BOTANIC JOURNAL.

69

That law therefore is unnecessary, unconstitutional, unjust and impolitic, and it should no longer disgrace the pages of the code of South-Carolina. If the Thomsonian system has no merit to entitle it to the support of the people, it is not a sufficient cause to violate the constitution. While on this topic we shall call the reader's attention to the words of the immortal Junius. In dedicating his letters to the English people, he says "If an honest, and I may truly affirm, a laborious zeal for the public service, has given me any weight in your esteem, let me exhort you and conjure you NEVER to suffer an invasion of your political constitution, however minute the instance may appear, to pass by without a determined persevering resistence. One precedent creates another. They soon accumulate, and constitute law; what yesterday was fact, to day is doctrine. Examples are supposed to justify the most dangerous measures, and where they do not suit exactly, the defect is supplied by analogy. Be assured that the laws which protect us in civil rights grow out of the Constitution, and they must fall or flourish with it. This is not the cause of faction or of party, or of any individual, but the common interest of every man."

I have said, and I think proved, that the law was only in favor of the evil disposed. Indeed it is so in two ways: 1. it affords a direct help to the dishonest to defraud-2, it affords a pretext to the envious and petty tyrant to exercise his meaner propenities.

ARGUMENT VI.

It binds a portion of citizens to pay a heavy tax to others, for the privilege of practising an art that they consider useless to follow their occupation.

The Thomsonian practitioners of South-Carolina are placed on a worse footing with the Medical Society of this State, than our planters were with regard to the American system. Our position is more oppressive, as will be shown in the sequel. It is not necesssary here to remind our Legislature, with what determined resistance the oppression of the tariff was opposed by their honorable body. We merely intend to prove that our case is worse, and that the same sophistry which was advanced to support the tariff, the Medical Society makes use of to continue their monopoly.

We all know that the tariff was predicated upon the assumption of "security to the people," by shielding them from foreign dependence, which would become eminently dangerous in time of war, and upon this phantom was built the ruinous protective law, which shook the stability of our government to its very centre! Now, see the similarity of reasoning in the pretensions of the Medical Society. The act of 1817, which incorpo rates this monopoly, is also predicated upon the imposing assumption of security to the people, from the feigned errors and prejudices of every pretender in the healing art." This has been thought sufficient importance to raise a tariff for the protection of the Medical Society, which directly taxes every man who would practice physic upon any system whatever.

The people of South-Carolina found the burden of the tariff too heavy, and could not see the visionary good which was held out to result from the protective system, and they would not bear the load laid on them upon such slight grounds; they therefore remonstrated, and the same reasons were again and again brought up as sufficiently strong, to force. them to bear the oppression. It is needless to repeat herd the labor, the ingenuity, the. manly resistance our Representatives in Congress usee to refute the sophistry-the repea-. ted remonstrances against the oppressive measurǝs. All this is fresh upon the mind of every one who has taken an interest in public affairs.

The Thomsonian practitioners have humbly adopted the same course for subverting the arrogant assumptions of medical tyranny. They pray, and entreat, and show their oppression, but still a deaf ear has been turned to their claims.-Still, the same fallacies, so often refuted, are reiterated to maintain disfranchisement and unjust taxation. Repeal the law of 1817, say the committee, and you ruin the medical science, because you bring among us opponents that we cannot compete with! So said the northern manufacturersrepeal the tariff, and you bring rivals into our country, rivals with whom we cannot compete-they will sell you better goods, at a cheaper rate than we can manufacture, and you thereby ruin us! But what response did your honorable body make to these assertions, in the solemn protest against the tariff? That this taxation was "UTTERLY UNCONSTITU

70

THE SOUTHERN BOTANIC JOURNAL.

TIONAL, GROSSLY UNEQUAL, AND OPPRESSIVE, AND SUCH AN ABUSE OF POWER AS IS INCOMPATIBLE WITH THE PRINCIPLES OF A FREE GOVERNMENT, AND THE GREAT ENDS

OF CIVIL SOCIETY." The oppression we contend against, is precisely of the same nature as this so strongly denounced by our honorable Legislature. The people of South-Carolina did not choose to be forced to buy inferior goods, at a higher price here; they preferred the right to buy better and cheaper articles elsewhere. So it is with us. We wish not to be forced to purchase inferior learning, at a much higher price, from our Medical Society, when we can obtain elsewhere, better and cheaper, that which will suit our pur pose. The similarity of our case with that of South-Carolina vs. the United States, is only different in one point, viz: that in the one, the oppression was indirect, and only bore upon property, whilst in the present instance it is direct. Our property is actually taken by force from us, and our persons liable to be confined in dungeons! And why? Not because we have not given the full value of property for which we receive compensationnot because our labor has not proved serviceable to those who receive it. Oh, no! But because we have not paid a TAX of one thousand dollars or two to the Medical Society. and have not bowed to their dicta- tion! The law compels us, then, to pay a fine of five hundred dollars for every offence, and remain in jail six months. Of the thousand practitioners on the Thomsonian system, now residing in South-Carolina, there is not one who would not be reduced to beggary, and rot in a dungeon during his life time, were this "act of abomination" put in force against him.

It was gravely urged by an honorable member of the Medical Committee, (Dr. Poe) and sustained by a majority of that body, (here justice makes us exclude several gentlemen of that committee, and we take pleasure in doing honor to their magnanimity, and consistency in the principles they profess, in saying that they did not participate in the support of our oppression, but were willing to do us justice) that the law of 1817 did not proscribe any system of medicine whatever, and that if we wished to practice physic, we only need comply with the requisition of the act, and then we might follow any plan of practice we chose. This is no new argument, and if it is good for any thing, it proves that our complaint is justly founded, and the oppression more crying! Yes, indeed! If we pay one or two thousand dollars to the Medical Society, we may then practice what we please-they will set us at liberty! Let us carry out this reasoning, and see whither it will lead. It was a pity that ourforefathers did not think of practically applying this mighty argument! -we might now have the honor of being the vassals of John Bull. George III. did not proscribe the Americans, he only asked them to pay him a tax of "three pence a pound upon tea," and a few more pence upon stamped paper. Had they only submitted to this, there would have been no cause of revolution. The tariff of 1828 proscribed no planter of the South. Had he paid the price for his goods that was demanded, there was no cause for the great opposition which the people of South Carolina made against that law. Let us pursue this a little further. If every man was willing to submitto any demand that might be made of him, there never would be any high-waymen, nor pirates, because, when they demand the property of the traveller, if he would give it up in peace, murder would not be committed; or, it actuated by a thirst of blood, then they might command the captive to plunge the dagger into his own heart, and he would obey! If our people were willing peaceably to submit to the unreasonable demand of the fanatics of the North, there would be no need of opposing their nefarious doings-our planters might cultivate their rice fields with their own hands, in peace. It is useless to go any further to prove the absurdity of that flimsy "irresistible argument."

We do not ask for the licence of the Medical Society. We desire not to practice physic upon the plan of its members. We wish not to be forced to acquire their learning. nor to pay them any tax for it. We wish not to interfere with their concern in any way whatever. But we demand freedom from their tyranny. We ask to be reinstated in our constitutional rights-to be independent of any monopoly in medicine, as well as in religion. We are perfectly willing that every member of the Medical Society may possess all the knowledge of a God, and that he should enjoy all the immunities of his erudition. But, to be enslaved by him, never! We ask no money from the State to build us splendid edifices for our own profit. We ask not to have a "protective tariff"' in ou