# Mason v. Haile/Dissent Washington

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* Dissenting Opinion Washington
Mr. Justice WASHINGTON dissented.
It has never been my habit to deliver dissenting opinions in cases where it has been my misfortune to differ from those which have been pronounced by a majority of this Court. Nor should I do so upon the present occasion, did I not believe, that the opinion just delivered is at variance with the fundamental principles upon which the cases of Sturges v. Crowninshield, and Ogden v. Saunders, have been decided. A regard for my own consistency, and that, too, upon a great constitutional question, compels me to record the reasons upon which my dissent is founded.
The great, the intelligible principle, upon which those cases were decided, is that a retrospective State law, so far as it operates to discharge, or to vary the terms of an existing contract, impairs its obligation, and is, for that reason, a violation of the tenth section of the first article of the constitution of the United States; but that a law, which is prospective in its operation, has not this effect, and, consequently, is not forbidden by that instrument. But, if I rightly understand the opinion pronounced in this case, and the facts upon which it is founded, this principle is subverted, and the distinction between retrospective and prospective laws, in their application to contracts, is altogether disregarded. The facts are, that the bond upon which this action is brought, bears date the 14th of March, 1814, and the condition is, that the defendant, then a prisoner in the State's jail in Providence, at the suit of the plaintiff, shall continue to be a true prisoner, in the custody and safe keeping of the keeper of the said jail, within the limits of the said prison, until he shall be lawfully discharged. Upon the petition of the defendant to the legislature of Rhode Island, to extend to him the benefit of a certain act passed in the year 1756, an act was passed in February, 1815, which liberated him from his confinement in the jail aforesaid, on his giving a bond to return to the said jail in case his petition should not be granted, and, by a subsequent act passed in the following year, he was discharged from his debts, upon a surrender previously made of all his estate, for the benefit of his creditors. The plea admits, that the defendant did depart from the limits of the jail, and justifies the alleged escape under the above acts of the legislature. The opinion considers those acts as constitutional, and decides that the defendant was lawfully discharged within the terms of his bond.
The case of Sturges v. Crowninshield arose upon a contract for the payment of money, from which the debtor was discharged under a subsequent State insolvent law, and this discharge was plead in bar of the action upon the contract. This Court decided the plea to be insufficient, upon the ground, that the law upon which it was founded impaired the obligation of the contract, which was entered into previous to his discharge. The obligation of the contract upon which the present suit was brought, is not to pay money, but to continue a true prisoner within the limits of the jail in which he was then confined. A subsequent act of the legislature discharges him from his confinement, and authorizes him to go at large, of which law he availed himself, and under which the justifies the alleged breach of the condition of his bond.
A contract, we are informed by the above case, is an agreement by one or more persons to do, or not to do, a particular thing; and the law which compels a performance of such contract, constitutes its obligation. The thing to be done in that case was, to pay money; and in this, it is, to continue a true prisoner; and, at the time it was concluded, the existing law of Rhode Island required him to perform this engagement. A discharge from his debts in the former case, by a subsequent law of the State, impaired that obligation; but this obligation, it is said, is not impaired by a subsequent law which discharges him from confinement, as well as from all his debts. If the principle which governs the two cases can be reconciled with each other, the course of reasoning by which it is to be effected is quite too subtle for my mind to comprehend it.
It was stated, in the case alluded to, that imprisonment of the debtor forms no part of the contract, and, consequently, that a law which discharges his person from confinement does not impair its obligation. This I admit, and the principle was strictly applicable to a contract for the payment of money. But can it possibly apply to a case where the restraint of the person is the sole object of the contract, and continuing within the limits of the prison the thing contracted to be done?
I admit the right of a State to put an end to imprisonment for debt altogether, and even to discharge insolvent debtors from their debts, by the enactment of a bankrupt law for that purpose. I am compelled, by the case of Sturges v. Crowninshield, to make this latter admission, and I voluntarily make the former. But what I insist upon is, that if the law in either case is made to operate retroactively upon contracts, to do what the law discharges the party from doing, it impairs the obligation of the contract, and is so far invalid.
I will now briefly consider the reasons which are assigned for distinguishing this case from that of Sturges v. Crowninshield.
It is said, that the bond in this case is not, in point of law, a contract, since there is but one voluntary party to it, and a contract cannot exist unless there be at least two parties to it. My answer is, that the law of Rhode Island which authorized the giving of the bond, made the creditor the other party, as much so as creditors and legatees are made parties to a bond, which the law requires an executor to give. If this answer be not considered as satisfactory, I will add another, which is, that the creditor has adopted it as his contract by putting it in suit.
Again, it is said, that the acts which discharged this defendant from his imprisonment, and even from the debt attogether, are not retrospective in their operation, and are not so considered in the State where they were passed.
How they are considered in that State, is more than this Court can judicially know, and, consequently, that circumstance cannot here form the basis of a judicial determination.
All that we do judicially know is, that the act of 1756 was a temporary law, and expired nearly half a century ago. It was, then, in the year 1815, as if it had never existed. An act in this year to revive it, either as a general law, or for the purpose of benefitting a particular individual, is the enactment of a new law, which derives all its force from the will of the legislature which enacts it, and not from that of the legislature to which the expired law owed its temporary existence. Is it possible that argument, or authorities, can be required to prove this proposition? Would the argument upon which the contrary proposition is founded have been adopted in the case of Sturgas v. Crowninshield, if the discharge had been under an act passed subsequent to the contract, which revived an old expired insolvent or bankrupt law? And am I to understand, that contracts for the payment of money, as well as for the restraint of the person of the debtor, may now be discharged in the State of Rhode Island at any time, by an act to revive the act of 1756 in favour of debtors for whose benefit it may be revived? If this be the effect of the present decision, (and I confess I cannot perceive how it can be otherwise,) the decision in the case of Sturges v. Crowninshield will avail nothing in that State, or in any other of the States in whose code an old deceased insolvent law can be found, which, in the days of its existence, authorized a legislative discharge of a debtor from his debts, or from his prison bounds bond.
Lastly, it is said, that this law does no more than enlarge the limits of the prison rules, within which the defendant bound himself to continue. And can it be contended, that a law which has this effect does not vary (and if it does so, it impairs,) the terms of the contract entered into by the defendant? For what object was he restricted to certain limits, if not to coerce him to pay the debt for which the plaintiff had a judgment and execution against him? And is not this object defeated, and the whole value of his prison bounds contract destroyed, by enlarging the limits to those of the State, of the United States, or of the four quarters of the globe? I shall add nothing further. I have prepared no written opinion; my object in declaring my dissent from that which has been delivered, being not so much to prove that opinion to be wrong, as to vindicate my own consistency.
Certificate, that the matters set forth in the defendant's pleas are sufficient to bar the plaintiff's action.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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