The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-10-14

/ lNPonIANI DECISION By THE SUPREME COURT.
The Supreme Court Of Tennessee, at il,
recent session in Knoxville, made the fol.
lowing impoFtant decision in a suit growing
out Of the Stay Law Of 1851:
FarneswOTth a Reaves. On error,
| Vance Fleming.
At the February Term, 1851, of the Circuit
/ Court Of Greene county, the plaintiffs, in
| error, confessed Judgment upon three prom
| isory notes executed by them on the 18th
/ October. l85s, for the sum Of s., S95 90, and
the costs. subsequently and during the
same term they appeared in open court and
offered TO stay the Judgment under the act
Of the General Assembly Of Tennessee, pass
ed on the 26th ofJanuary, 1861 and there
upon came certain persons and offered them
selves as stayors OF the judgment Il was
admitted that the security offered wsz am
'le sud sufficient. But me court being Of
opinion that the Act, ~ ssbt-, ooatraet-
ed prior to its passage was unconstitutional
and simply void, refused 10 allow the stav.
The parties then prayed an appeal to this
court.
The Constitution ofthe United States in
hibits the States from passing auy " law
impairing the obligation Of contracts" The
same restriction is contained ia the Consti-
tuition OF Tennessee. The act of the 10Th
January, 1851, is supposed to contravene
this provision.
We approach the examination Of the cues
ton with q strong appreciation of its diff
Guilty. Perhaps there Is not single clause
Of the Constitution which has given rise 10
more acute and vehement controversy; end
the nature and extent Of whose prohibitorv
force has called forth more ingenious spec-
nj I I II
sion. The best intellects Of the country have
given their powers to its examination, and
If their reasonings do not always leave the
mind entirely satisfied, and at rest, il must
be attributed to the nature Of the subject
A contract has been defined to be an
agreement 10 do OF not 10 do q particular
thing" Without more, this would be sim
ply promise and not binding. It has also
been defined % be 50 an agreement upon suf-
hcient consideration, 10 do or not TO do a
particular thing To be obligatory it must
be made.freel y ,,Dot under duress or any kind
Of restraint; understandingly, not procured
by fraud or deceit. A contract then, is an
agreement, made understand augly, by par
ties free to act, upon sufficient consideration,
to do or not 10 do a particular thing.
The right 20 make contracts IS one Of
the original rights Of mankind, eoeval
with the right 20 acquire and hold pro
perty and antecedent to all legislation.
1t furnishes the highest CONSTANTS
that men can impose upon themselves
and one which they use the strongest terms
to express, employing language which in
its literal sl5nincation implies strict bodily
confinement. II Is this quality which con-
stitutes the obligation or binding effect Of
thecontract. The act Of the party, self-im-
posed, IL is at once an absolute duty and a
rlarfaef rfuhf-FHrfr- IN 7s4-f.-vr, -sr-1,t
act performance 10 the extent of the under
taking. On entering into a state Of society,
men surrender 10 the community, the power,
BY appropriate legislation, 10 e1furce their
contracts, to regulate the forms Of contract
ing, to prescribe the rules by which con
tracts shall be evidenced and to prlhib bit such
as may be deemed mschisvOus Il has been
maintained with much plausibilitv that the
law enters into and forms pert Of the con
tract. But it has been iudicially held by
majority Of the Supreme Court Of the United
States, that such a doctrine is untenable.
Although the law Of the place acts upon
contract, and governs its construction, valid
ity and obligation, it constitutes no part Of
il. The Obligation Of the contract is derived
from the agreement Of the parties, and not
from the law .-St0Ty's Commentaries on the
Constitution; Book III, chap. xxxtv, q 1877,
1873.
The obligation Of the contract thus being
limited and fixed by its stipulatioBs, the
State msy not enact any law which enlarges,
abridges or in any manner changes the in
teution Of the parties. The manner or de-
gree ia which che change is effected can in
no respect influence the eonclusirn Il; for
whether the law affect the validity, the coz
struction, the duration, the discharge, or
the evidence Of the contract, it impsirs its
obligation, though it may not do 30 to the
same extent in al the supposed cases. ANY
deviation from It's terms by postpOning, or
aecslersting the period Of performance which
II presCribes; imposing conditions not eX-
pressed in the contract; or dispensing with
the performance Of those which are q Part
OF the contract however minute or appa-
renuy immaIerial in their effect upon IT,,
impair its obliga ion. Still mora law
which makes the contract wholly invalid,
or extinguishes, or rel. asses it, is 8 law i'm
pairing il. For example, if a contracts by
a certain day to convey to 3 such parcel
of land, no State egislation can postpone the
time Of performance, OF provide for a con-
veysnce Of less than the whole tract, or Of
other lands Of les or Of even greater value.
much less dispense with the conveyance al
together.
We may remark that sacred as is the OBJ
legation Of a contract the law rarely has
Iower to compel the Observance Of it. That
must depend upon the abiiJy and good
faith Of the party. A failure 20 observe it
is q breach OF the contract; az this point the
law iuterposes, and the means used TO en-
force it constitute the remedy which society
slords the injured party; and any law reg
ulating the proceedings Of Courts on this
subject, would be a law regulating the rem
edy.
The State is in the exercise of its legiti
mate and Acknowledged powers, when it is
regulating the remedy and mode OF pro-
ceedings IN its Courts
The power Of State Legislation 10 control
the remedy for breach Of contract under
went much discussion in the case Of ogden
vs.. Saunders, - wheaton pa. The matter
in Judgment was the validity Of the New
York Statute Of insolvency. The majority
of the Court decided in favor of the validity
when operating upon future contracts and
between its citizens. Chief Justice Mar
shall with Justices Story and Duvall dis
ented. The opinion Of these thres Judges,
delivered BY the FIRST, though not authotIta-
tive in that particular case is dessrvediy
held in high authority as a commentary
upon this clause Of the constitution. In the
course Of the discussion the Chief Justice
takes occasion TO note the distinction be-
tween the obligation Of a contract and the
remedy TO enforce it when broken. He saws
f" they originate az different times. The obli-
CATION to perform is eo-eval with the under
taking 70 perform d originates with the
contract itself aud operates anterior 70 the
time Of performance. The remedy acts
upon a broken contract, and enforces pre-
existing obligation" " But, although the
identity Of obligation and remedy be dis
proved, it may be urged, that they are pre-
cisely commensurate with each other, and
are such sympathetic essences, If the ex-
preston may be allowed, that action Of law
upon the remedy is Immediately felt BY the
obligation-that they live, languish and die |
together. The use made Of this argument
j, 10 show the absurdity and seli-conuadic-
ton Of the construction, which maintains
the invioiability Of obligation, while u
leaves the remedy 70 the state Govern |
ments."
owe do not perceive this absurdity or /
self-contradiction. Our country exhibits |
the extraordinary spectacle Of distinct aud |
in many respects independent Governments |
over the same territory and the sans peo- /
ia. III Iz.-arr rHraufH are raafrnrnen ]