Daily globe., 1881-09-11


that made them may at its pleasure annul
them and there can be no reason why one
State cannot annul the executory contracts Of
another, or SO legislate as to destroy any mar
ket value which they might otherwise have
within its jurisdiction. Indeed, they are not
in legal sense contracts at all, have no value
as such which the law will recognize, are. not
to be regarded as property, and all the hun
dreds of millions of federal and State bonds
which are regarded as property by the finan-
cial world, are in law merely pieces of worth
less paper.
What constitutes the legal obligation of
contract has beeen much discussed by courts
and text writers almost ever since the adop-
tion OF the federal constitution. Some have
insisted that it is the judicial remedy given to
enforce the contract; that the legal obligation
consists of and is precisely co.extensive with
such remedy, and that those agreements from
which judicial remedy is withheld, have
merely moral, or, as they are sometimes
insisted the legal obligation of the contract is
entirely distinct from the remedy to enforce it,
and may exist without. The latter seems to
be the opinion recognized in the supreme
court of the United States.
The acts of State legislatures claimed to
impair the obligations of contracts that have
come before that court, have generally been
acts relating to remedies, and some judges of
the court, in endeavoring to show the i'm
portance of the remedy to the obligation Of
the contract, and that the remedy cannot be
taken away without impairing the obligation,
have employed expressions which severed
from the connection in which they were used
may be understood as indicating that without
a judicial remedy there can be no legal obliga-
ton. Such expressions as quoted and ur-
gently pressed on this court by the the relator
as applied to the vast majority OF contracts
such expressions are correct, for as general
rule whenever the law recognizes an obliga-
tlon it gives judicial remedy to enforce it,
But there are exceptions, as generally, in the
case0 Of State contracts, when, without ignOr-
ing the obligation and without regard to the
validity or nature of the contracts themselves,
the law, from motives of public policy, ex-
empts the party from direct judicial action to
enforce them, when read with their context
and in view of the subject matter then in hand
the expressions referred to cannot be under
stood as denying the obligation of these latter
contracts. X. Eli = I,
They must be understood as referring to
those agreements or obligations, such as nude
facts or obligations to exercise gratitude, be-
nevolence and the like, of which the civil law
takes no account, and not to those contracts
which courts will recognize whenever they
have an opportunity, by the presence before
them of parties claiming rights or exemption
under such contracts. 3Ll
But since the great cases of Sturgis VS..
Crowningshield 4, Wheaton s. Ogden VS..
Saunders, 12 Wheaton, the accepted doctrine
of that court has been that the legal obllga-
| tions and the remedy are distinct.
Referring to this matter the supreme court
| in Won Hoffman vs.. City of Quincy, 4 Wall,
435, 81, said ''If these doctrines were dlsin-
tegral, the consistency and soundness OF the
reasoning which maintains distinction be-
tween the contract and the remedy, or, to speak
more accurately, between the remedy and the
other facts of the contract, might, perhaps,
we'll be doubted, but they rest in this court upon
foundation Of authority too firm to be shak-
en-; and they are supported by such an array
of judicial names that it is hard for the mind
not to feel constrained to believe they are cor
rect. I'D
That the legal obligation of contracts and
judicial remedy or means provided by law to
enforce them through action of the courts are
distinct, appears most in accordance with rea-
son. It is unreasonable that the obligation OF
contract is something shifting, not perma-
nent, that in the same contract it may exist at
one time and be absent at another, that at diff
ferent times the same contract may have and
not have legal obligation; that it may not
have such obligation when made, but may
from accident or change of circumstances not
connected with it subsequently acquire it;
that it may have it when made, but snbse-
quently lose it.
Certainly the legal objection, in whatever
position metaphysical reasoners may place it,
must belong to the contract so long as it con-
tinues, from the time it is made till it is per-
formed, and even as decided in Fletcher VS..
Peck, after it is performed, though then the
remedy to enforce it's performance has ceased.
But there is not always remedy, certainly
not always a judicial remedy, for contracts
acknowledged to be valid.
A contract between independent nations has
binding force and obligation which is uni
versally acknowledged, and which has never
been doubted among civilized nations; yet
there never can be judicial remedy in behalf
of one ration against another. The only rem
edy in that case is in the right of war.
So in the case put by way of Illustration
in Ogden VS.. Saunders, of two men thrown
together upon a desert, uninhabited island,
and making contract for exchange
of commodities. 1t is difficult to
suppose any one could deny the duty and ob-
legation of each to do what he had stipulated
to do and the right to demand what the other
had stipulated to perform, would be as COM
plete as though they had made the contract in
a country governed by law; yet so long as
they remained on the island the only remedy
either would have to compel performance by
the other, would be resort to force. II,
however. before the contract was performed,
they should both remove to country govern
ed by law, there would then spring up The ju-
dicial remedy provided by the laws of that
country upon contracts of that kind.
The cases of Rees VS.. Watertown 19, Wall
1874, and Merriweather vs.. Ganet 1O2, o. 8. 472,
present instances where judicial remedies once
existed, but ceased before the contracts were
performed For the court, though recogniZ-
ing the legal obligation of the contracts, was
forced to acknowledge utter inability to afford
any remedy. Had the cause from which the
remedies in those cases ceased to exist,
been subsequently removed, they would have
presented instances of contracts as to which
there at first were judicial remedies, then for
time no remedies, then again the remedies re-
stored.
Upon contract creating debt payable in
money, if the debtor have no property out OF
which the debt can be made, there is practi-
cally no judicial remedy. IS
In case of the death of a debtor there is no
such remedy till the appointment OF an ad-
minstrator or executor.
Mr.. Storey, in his work on the constitution,
gives as instances of legal obligations exist
Ing where there is no judicial remedy to en-
force them, the case of contract by State
which does not permit its citizens to sue it,
with one of its citizens, and of a contract be-
tween the United States and one of it's citizens,
as to which, he says, no one would doubt
their legal obligations.
And here we may say that although there
have been before the supreme court of the
United States very many cases in which con-
tracts by State came more or less IN Ques-