The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-12
VOL. xxx.

shield, Mr.. Hunter gave the tradition OF
the origin Of the phrase lmpairing the
obligation Of contracts In address,
ing the court he said: "The judges
Of the State courts and Of this court
have confessed that there Is, In these
words, impairing the obligation Of
contracts an inherent obscurity. They
are taken not from the English common
law, or used as classical or technical
term of our jurisprudence in any book of
authority. Were they furnished from that
great treasury and reservoir of rational ju-
risprudence, the Roman lawi We are in
clined TO believe this. The traditionis that
Mr.. Justice Wilson, who was a member of
the Convention, and Scottish lawyer, and
learned in the civil law, was the author OF
the phrase" And in the case Of the State
Is. John NJ. Carew, recently decided in the
Supreme Court of South Carolina, Dunkin,
j., in commenting on these remarks OF
Mr.. Hunter, said: "Whatever may be the
correctness of the tradition, the term
obligation is certainly recognized fami-
liarly by the Roman jurists as denoting
the legal tie which imposes the necessity
of doing or abstaning from paNeeular
act, as distinguished from the imperfect
obligation arising from gratitude, charity,
or other moral duties, binding upon con-
science, but having no legal remedy for
their enforcement. This latter is the es-
sencc of the legal obligation. Sub hac
conditiOne, ST uolam, malta fit ObHgatio.
Corpus Jvis., book A, chapter 7, lex. 81
According to the Roman law, where the
right Of action is destroyed, the legal obli-
CATION ceases to exist. Cum nuNa subeSt
cd,lSd conStat non posse conStitui obtga-
tiOnan. Corpus JriS., book 2, chapter
IA, l.. 73, 2, 4, de pactiS.r'
In this connection it would not be inap-
propriate to quote the opinions of the lead
ing statesmen of that day, many Of whom
were members of the convention which
framed the Constitution of the United
States, showing what they understood to
be the meaning of this phrase. 1t would
shed light on its "inherent obscurity."
Their views will be found carefully col
lected in an able opinion delivered by
Judge Mills in the case of Blair Us. Will
liams, Lett, 65. / must content myself
with this reference without quoting from
them. They will be found to sustain the
view held by the decisions have cited.
III. From these authorities we learn
what is meant by the term "obligation :"
of contract. Let us next inquire what
is meant by the term "impairing the
obligation of a contract. A reference to
the cases upon this subject will show us
what laws, passed by the State Legisla-
lures, have been held to be an impair
ing" Of the obligation Of contract, and
will enable us to understand what is meant
by that term, as used in the Constitution of
the United States, and how it has been
defined by the courts.
In Bronson Us. kinzie, How, 1872, Mr..
Justice Mclean, whilst he diSsented from
some Of the views expressed by majority
of the court, said: "a State Legislature
cannot impair the contract by changing the
time or manner of its performance. BY the
contract the parties have fixed their rights
and obligations, and these are guarded by
the Constitution" In Bumgardner Us. the
Circuit Court of Howard county, 4 Mis-
souri, Rep, so, it was held "that an
act of the Legislature directing stay of
execution on judgments obtained before
Justice of the peace for four months was
unconstitutional both as it regards the Con-
stitutiou of the State and of the United
States"
In Bailey Us. Gentry and wife, l Missouri
Rep, l64, the court unanimously decided
"that an act of the Legislature of the
State granting a stay of execution for two
and a half years, unless the plaintiff or his
agent will endorse thereon that property at
two-thirds of its value will be taken in sa-
tistaction, is repugnant to the Constitution
of the State and of the United States, and
therefore void. In delivering its opinion,
the court said {" In the case at bar the
defendant has given his promissory note to
pay the plaintiff a sum Of money on or be-
fore a certain day. The contract binds him
to pay that sum at that day, and this is its
obligation" "Thc plaintiffs have a right
to enjoy the sum of money no,o, and the
act in question says the party shall not en-
jov this right for two and half years here
after" The act held to be unconstitu-
tional.
In Blair Us. Williams, Litt., the act of
the Legislature, the constitutionality of
which was called in question, permitted
the plaintiff, on issuing execution on his
Judgment, TO endorse thereon that he will
take paper of the Bank of the Common
wealth, or of the Bank of Kentucky, in
discharge of it and provided, that in case
he fail to do SO, the detendent may replevy
the debt for two years, the court held
"That law passed after contract is
made extending the term of repleyin on a
Judgment rendered on such contract for
two years, mpairs the obligation Of the
contract and violates the Constitution OF
| the United States"
In Quackenbush Us. Danks, DEMO, p.
lnl,
nimous opinion Of the court, held
That an act of the Legislature to
exempt certain property from distress
for rent and sale on execution, if it
affects executions for debts contracted be-
fore its passage, conflicts with the provi-
sion in the Constitution of the United
| States forbidding any State to pass law
impairing the obligation Of contracts, and
is so far void. In delivering the opinion
the learned Judge said: " If the Legisla-
ture can deprive him of the right to reach
the property-a right which existed at the
time the contract was made-it is evident
that nothing will then remain of the obli-
CATION of the contract beyond an empty
name. 1t may be the moral but it is nc
longer the legal duty OF the debtor to pay
For all honest and practical purposes, the
Legislature might just as well say the debt
shall I've blotted out as to deny to the cre-
ditor all means of enforcing payment"
In Bronson Us. Kinzie and others, How,
3ll, il was decided: "That State law,
passed subsequently to the execution
of mortgage, which declares that the
equitable estate of the mortgagor shall not
be extinguished for twelve months after
sale under decree in chancery, and
which preyents any sale unless two-thirds