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


/ enforcement of all contracts made prior to
| the I'd day of April, 1865, for period OF
nearly two years, with distinct intimation
that at the expiration Of that time they
may further postpone their enforcement
even for an indefinite period, If they shall
adiudge that the endorsements OF the
country require It; and thus, while they
take away all preexisting remedies, they
furnish no substituted remedy; leaving
the creditor, as was forcibly said by o
learned Judge, "in o condition In which
his rights live but in grace, and his reme-
dies in entreaty only"
This is q most latitudinous interpreta-
ton Of the power of the Legislature over
judicial remedies. Let MS inquire what Is
the power Of the Legislature over these
remedies, and ascertain what are the llmi-
tations, if any, on that power. We shall
then be the better able to determine
whether the statute under consideration
impairs the obligation Of the contract in
volved in this suit.
Speaking Of the remedy, Blackstone, in
his Com, book 3, p. %, says: The reme-
dial part of the law is so necessary a
consequence of the declaratory and di-
rectory parts that laws must be very
vague and imperfect without it. For in
vain would rights be declared, in vain di-
rected to be observed, if there were no
method of recovering and asserting those
rights when wrongfully withheld or in
vaded. This is what we mean properly
when we speak of the protection of the
law"
In Bac. Alb. title actions, letter B, it is
laid down as maxim that "where there is
legalright, there is also legal remedy,
by suit or action at law, whenever that
right is invaded"; and that, "the want OF
right and the want Of remedy in the same
thing"
l.. .Kent's CON-, 4l9, it is said j" To deny
any remedy under contract, or by
burthenng the remedy with new con-
ditions and restrictions to make it useless
or hardly worth pursuing, is equally vio-
lation of the Constitution" Again The
better doctrine is that all effectual rene
dies affecting the interests and rights OF
the owner, existing when the contract was
made, become an essential ingredient in
it, and are parcel Of the creditors right,
and ought not to be disturbed. All sus-
pension by statute of remedies existing
when the contract was made is more or
less impdring its obligation"
In Story's Const., 3, 1881, he uses this
language "When we speak of the obli-
CATION of a contract We include in the
idea some known means acknowledged by
the municipal law to enforce it. When
all such means are denied, the obligation
of contract is understood to be impaired
though it may not be completely annihi-
lated"
Mr.. Sedgwick, in his Stat. and Const
Law, page 652, says: Looking at q con-
tract legally and practically as an instru.
ment by which rights of property are cre-
ated, and on which they repose, obligation
and remedy are convertible terms. Take
away the whole remedy, and it is admitted
the contract is gone 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 so far impairs
the obligation of the contract"
In Green Us. Biddle, s Wheaton, 3Sl,
Mr.. Justice Washington, delivering the
opinion of the court, said: Nothing can
be more clear, upon principles of law and
reason, than that a law which denies to the
owner of land remedy to recover the
possession of it when withheld by any per-
son, or which clogs his recovery Of such
possession by conditions tending to dimi-
nish the value Of the thing recovered, i'm
pairs his right to and interest in the pro-
perty. If there be no remedy to recover
the possession, the law necessarily pre-.
sunles want of righ5 to it. If the remedy
afforded be qualified and restrained by
conditions of any kind, the right of the
owner may indeed subsist, but it is i'm
paired and rendered insecure, according to
the nature and extent of such restric.
tions."
Mr.. Justice Trimble, in Ogden Us. Saun.
ders, IL Wheat, said Whether the law
processes to apply TO the contract ITSELF ol
to regulate the remedy, it is equally within
the true meaning Of the Constitution, if it
in effect, impairs the obligation of existing
contracts. do not mean to say that every
alteration of existing remedies would i'm
pair the obligation of contracts; but do
say, with great confidence, that law
taking away all remedy from existing con.
tracts, would be manifestly law impair.
ing the obligation of contracts"
The alleged distinction between the
right and the remedy was ably pressed
upon the court in Bronson Us. Kinzie,
How, 3l1. Chief Justice Taney reviewed
all the decisions on this point, and deliver.
ed the opinion Of the Court. He said
Whatever belongs merely to the remedy
may be altered according to the will Of the
State, provided the alteration does not i'm
pair the obligation of the contract. But il
that effect is produced, it is immateria
whether it be done by acting on the re.
medy or directly on the contract itself. Ii
either case it is prohibited by the Consttu
tion." "It is difficult, perhaps, to draw q
line that would be applicable to all case:
between legitimate alterations of the re
medy and provisions which, in the form o
remedy, impair the right. But it is mani
fest that the obligation of the contract
and the rights of party under it, may il
effect be destroyed by denying remedy
altogether; or may be seriously impaired
by burdening the proceedings with new
conditions and restrictions, SO as to make
the remedy hardly worth pursuing" The
Chief Justice, referring to the remedia
part of the law, added at is that part o
the municipal law which protects the
right, and the obligation by which it en-
forces and maintains it. 1t is this protec
tion which the clause in the Constitution
now in question mainly intended to secure
And it would be unjust to the memory o
the distinguished men who framed it, te
suppose that it was designed to protect {
mere barren and abstract right, without any
practical operation upon the business o
life. 1t was undoubtedly adopted as {
part Of the Constitution for great ant
useful purpose. It was to maintain the
integrity of contracts and to secure theil
faithful execution throughout the Unior