« PrejšnjaNaprej »
tract, in the constitutional sense of this clause ? tract is an agreement to do, or not to do, a particular thing; or (as was said on another occasion) a contract is a compact between two or more persons. A contract is either 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 one, in which the object of the contract is performed. This differs in nothing from a grant ; for a contract executed conveys a thing in possession ; a contract executory conveys only a thing in action. Since, then, a grant is in fact a contract executed, the obligation of which continues; and since the Constitution uses the general term, contract, without distinguishing between those, which are executory, and those, which are executed ; it must be construed to comprehend the former, as well as the latter. A State law, therefore, annulling conveyances between individuals, and declaring, that the grantors shall stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution, as a State law, discharging the vendors from the obligation of executing their contracts of sale by conveyances.
It would be strange, indeed, if a contract to convey were secured by the Constitution, while an absolute conveyance remained unprotected. That the contract, while executory, was obligatory ; but when executed, might be avoided.
$ 240. 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 of them. Implied contracts are such, as reason and justice dictate from the nature of the transaction, and which, therefore, the law presumes, that every man undertakes to perform. The Constitution makes no distinction between the one class of contracts and the other.
It then equally embraces, and equally applies to both. Indeed, as by far the largest class of contracts in civil society, m the ordinary transactions of life, are implied, there would be very little object in securing the inviolability of express contracts, if those, which are implied, might be impaired by State legislation. The Constitution is not chargeable with such folly, or inconsistency. Every grant, in its ow. nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert it. А party is, therefore, always estopped by his own grani. How absurd would it be to provide, that an express covenant by a party, as a muniment attendant upon the estate, should bind him for ever, because executory, and resting in action; and yet, that he might reassert his title to the estate, and dispossess his grantee, because there was only an implied covenant not to reassert it.
$ 241. In the next place, What is the obligation of a contract ? It seems agreed, that, when the obligation of contracts is spoken of in the Constitution, we are to understand, not the mere moral, but the legal obligation of contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please. It is addressed to the conscience of the parties, under the solemn admonitions of accountability to the Supreme Being. No human lawgiver can either impair, or reach it. The Constitution has not in contemplation any such obligations, but such only, as might be impaired by a State, if not prohibited. It is the civil obligation of contracts, which it is designed to reach, that is, the obligation, which is recognised by, and results from, the law of the State, in which it is made. If, therefore, a contract, when made, is by the law of the State declared to be illegal, or deemed to be a nullity, or a naked pact, or promise, it has no civil obligation ; because the law, in such cases, forbids its having any binding efficacy, or force. It confers no legal right on the one party, and no correspondent legal duty on the other. There is no means allowed, or recognised to enforce it; for the maxim is, that from a mere naked promise no action arises. But when it does not fall within the predicament of being either illegal, or void, its obligatory force is coextensive with its stipulations.
242. Nor is this obligatory force so much the result of the positive declarations of the municipal law, as of the general principles of natural, or (as it is sometimes called) universal, law. In a state of nature, i: dependent of the obligations of positive law, contracts may be formed, and their obligatory force be complete. Between independent nations, treaties and compacts are formed, which are deemed universally obligatory ; and yet in no just sense can they be deemed dependent on municipal law. Nay, there may exist (abstractly speaking) a perfect obligation in contracts, where there is no known and adequate means to enforce them. As, for instance, between independent nations, where their relative strength and power preclude the possibility, on the side of the weaker party, of enforcing them. So, in the same government, where a contract is made by a State with one of its own citizens, which yet its laws do not permit to be enforced by any action or suit. In this predicament are the United States, who are not suable on any contract: inade by themselves ; but no one doubts, that these are still obligatory on the United States. Yet their obligation is not recognised by any positive municipal law, in a great variety of cases. It depends altogether upon principles of public or universal law. Still, in these cases, there is a right in the one party to have the contract performed, and a duty on the other side to perform it. But, generally speaking, when we speak of the obligation of a contract, we include in the idea some - known means acknowledged by the municipal law to enforce it. Where all such means are absolutely denied, the obligation of the contract is understood to be im paired, although it may not be completely annihilated. Rights may, indeed, exist, without any present adequate correspondent remedies between private persons. Thus, a State may refuse to allow imprisonment for debt; and the debtor may have no property. But still the right of the creditor remains ; and he may enforce it against the future property of the debtor. So, a debtor may die without leaving any known estate, or without any known representative. In such cases, we should not say, that the right of the creditor was gone; but only, that there was nothing, on which it could presently operate. Bu suppose an administrator should be appointed, and prop
erty in contingency should fall in, the right might then be enforced to the extent of the existing means.
$ 243. The civil obligation of a contract, then, although t can never arise, or exist, contrary to positive law, may irse or exist independently of it; and it may be, exist, notwithstanding there may be no present adequate remely to enforce it. Wherever the municipal law recoghises an absolute duty to perform a contract, there the obligation to perform it is complete, although there may not be a perfect remedy. § 244.
In the next place, What may properly be deemed impairing the obligation of contracts, in the sense of the Constitution ? It is perfectly clear, which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. The manner or degree, in which this change is effected, can in no respect influence the conclusion; for, whether the law affect the validity, the construction, the duration, the discharge, or the evidence of the contract, it impairs its obligation, although it may not do so, to the same extent, in all the supposed cases. Any deviation from its terms, by postponing, or accelerating the period of performance, which it prescribes, or by imposing conditions not expressed in the contract, or by dispensing with the performance of those, which are a part of the contract, however minute, or ap- . parently immaterial in their effects upon it, impairs its obligation. A fortiori, a law, which makes the contract wholly invalid, or extinguishes, or releases it, is a law impairing it. Nor is this all. Although there is a distinction between the obligation of a contract, and a remedy upon it; yet if there are certain remedies existing at the time, when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress for its violation ; such an abolition of all remedies, operating immediately, is also an impairing of the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt, that the Legislature may vary the nature and extent of reme
dies, so always, that some substantive remedy be in fact left. Nor can it be doubted, that the Legislature may prescribe the times and modes, in which remedies may be pursued ; and bar suits, not brought within such periods, and not pursued in such modes. Statutes of limitations are of this nature ; and have never been supposed to de stroy the obligation of contracts, but to prescribe the times, within which that obligation shall be enforced by a suit ; and in default thereof, to deem it either satisfied, or abandoned. The obligation to perform a contract is coeval with the undertaking to perform it. It originate: with the contract itself, and operates anterior to the time of performance. The remedy acts upon the broken contract, and enforces a preexisting obligation. And a State Legislature may discharge a party from imprisonment upon a judgement in a civil case of contract, without infringing the Constitution ; for this is but a modification of the remedy, and does not impair the obligation of the contract. So, if a party should be in jail, and give a bond for the prison liberties, and to remain a true prisoner, until lawfully discharged, a subsequent discharge by an act of the Legislature would not impair the contract, for it would be a lawful discharge in the sense of the bond.
§ 245. These general considerations naturally conduct us to some more difficult inquiries growing out of them and upon which there has been a very great diversity of judicial opinion. The great object of the framers of the Constitution undoubtedly was, to secure the inviolability of contracts. This principle was to be protected in whatever form it might be assailed. No enumeration was attempted to be made of the modes, by which contracts might be impaired. It would have been unwise to have made such an enumeration, since it might have been defective; and the intention was to prohibit every mode or device for such purpose. The prohibition was universal.
§ 246. The question has arisen, and has been most elaborately discussed, how far the States may constitutionally pass an insolvent law, which shall discharge the obi.. gation of contracts. It is not doubted, that the States may pass insolvent laws, which shall discharge the per