The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1866-09-05

doctrine is that all effectual remedies atectlng
the interests and rights of the owner, exist
ing when the contract was made, become an es'
creditors right, and ought not to be disturbed
All suspensions BY statute Of remedies, existing
parinc its obligations Il Kent Com, 419.)
Mr. Justice Story uses this language "When
we speak of the obligation of contract, We in
clude IN the idea some known means acknowledged
by the municipal law to enforce it. Where all
such means are denied, the obligation of a con-
tractis understood to be impaired, though it may
not be completely annihilated." (story Const.,
s 1881
Mr.. Sedgwick says: Hooking at a contract le-
galiy and practically as an instrument by which
rights OF property are created, and on which they
reposse, obligation and remedy are strictly con,
Vertlble terms. Take away the whole remedy and
1t IS admitted the contract is gono. And it seems
the only logical rule to hold that any legislation
which materially diminishes the remedy given by
the law to the creditor at the time his contract is
made, Just 80 far impairs the obligation of the
contract" (Stat. and Const Law, p. 652)
The alleged distinction between the right and
the remedy was pressed upon the Court in Green
us. ,Biddle, Wheat, 381. It was a case twice
elaoorately argued, and well considered. Mr.
Justice Washington, speaking for the Court, says:
"a right to land includes the right to enter upon
ito recover possession where withheld" Again.
Nothing can be more clear upon the principles
OF law and reason than that a law which denies to
the owner OF land remedy to recover the pos
session OF it when withheld by any person, or
which clogs his recovery Of such possession by
conditions and restrictions tending to diminish
the value OF the thing recovered, lmpalrs his
rightto and interest in the property. II there
be no remedy to recover the possession, the law
necessarily presumes want OF right to it. 1t the
remedy afforded be qualified and restrained by
indeed subsist, but it is impaired and rendered
insecure. according to the nature and extent OF
such restrictions Twenty years afterwards
these principles came under review before the
same Court in Bronson vs Kincie, How 81.
This latter case arose under what was called s'the
valuation law" of the State Of Illinois. The opin-
ion was delivered by Chief Justice Taney. He
says: "Whateyer belongs merely to the remedy
may be altered according to the will of the State,
provided the alteration does not impair the obliga-
duced, it is immaterial whether it is done by
acting on the remedy or directly on the contract
itself. In either it is prohibited by the Con-
stitution." He then adverts to the case OF
Green and Biddle and repeats the emphatic Ian
guaee there used by the Court: "It is no answer
that the Acts Of Kentucky, now in question, are
regulations of the remedy and not of the right to
the lands'
.If these Acts 80 change the nature and extent
of existing remedies as materially to impair the
rights and interests OF the owner, they are just as
much violation OF the compact as il they direct,
"We concur entirely" adds the Chief Justice,
''in the correctness OF the rule above stated. It
is difficult, perhaps, to draw a lpe that would be
applicable to all cases between legitimate altera
tions Of the remedy and provisions which, in the
form of remedy, impair the right. But it ls man
ifestthat the obligation OF the contract, ana the
rights of a party under it may, in effect, be de-
stfoyed by denying q remedy altogether; or may
be seriously impaired by burdening the proceed
ings with new conditions and restrictions. so as
to make the remedy hardly worth pursuing" He
then cites the authority OF Mr. Justice Black
sary consequence of the declaratory and direc.
tory parts, that laws must be very vague and i'm
perfect without it, For, in vain would rights be
declared, in vain directed to be Observed it there
we're no method of recovering and asserting those
rights when wrongfully withheld or invaded This
is what we mean properly, when we speak OF the
protection of the law" (Back. Com. 55.
s'It is that part OF the municipal law" 1.-THE
remedial part), continues the Chief Justice,
(which protects the right, and the obligation by
which it enforces and maintains It, 1t ls this pro-
lection which the clause in the Constitution now
in question mainly intended to secure. And it
would be unjust to the memory OF the distin-
guished men who framed it, to suppose that it
was designed to protect a mere barren and ab-
the business of life It was undoubtedly adopted
as part of the Constitution for a great and use
full purpose. Il was to maintain the integrity OF
contracts, and TO secure their faithful execution
throughout the Union, by placing them under the
States, And it would but ill become this Court,
under any circumstances, to depart from the
plain meaning Of the words used, and to sanction
distinction between the right and the remedy,
which would render this provision illusive and nu-
gatory, mere words OF form atfording no protec-
tion, and producing no practical result" He
then applies these principles:
.sThe mortgage is entitled to the aid OF this
Court; for this purpose it s his absolute ana un-
doubted right, under an ordinary mortgage deed,
if the money is not paid at the appointed day, to
20 into the Court OF Chancery and obtain an order
for the sale, ETC. This is his right by the law of
the contract; and it is the duty of the Court to
maintain and enforcei it without any unreasonable
delay" s'When this contract was made, no
statute had been passed by the State changing the
rules OF law or equity in relation to contract OF
this kindn sThey were the laws OF Illinois at the
time; and, therefore, entered into the contract,
and formed a part OF it, without any express
stipulation to that effect in the deed; and any sub
sequent law, impairlDg the rights thus acquired,
impairs the obligation which the contract lmpos.
of February, 1841. sThe observations already
made (says he) in relation to the other Act, apply
with equal force to this It is true that this law
apparently acts upon the remedy, and not directly
upon the contract. Yet, its effect is to deprive the
party of his reexisting right to foreclose, etc."
In the following year tho same suDJecG WAS uls-
cussed in McCracken us. Hayward, 2 How, 609.
The opinion OF the Supreme Court was delivered
by Mr.. Justice Baldwin. ''The obligation OF con-
tract (says hey consists in it's binding force on the
party who makes it. This depends on the laws in
existence when it is made; these are necessarily
referred to in all contracts, and forming part OF
them as the measure of the obligation to pei form
Them by the one party, and the right acquired by
the other. There eau be no other standard by
which to ascertain the extent of either than that
~ ip6io TO