14 Ky. 34 | Ky. Ct. App. | 1823
ON the 12th of November, 1819, Blair, Ingles and Barr, executed their note to Williams for $209 67 1-2, payable sixty days after date. The money not being paj(] ^?hen it became due, Williams sometime thereaf-brought suit upon the note in the Bourbon circuit court, and recovered judgment for the amount against ^a'r’ hgles and Barr, and they, in accordance to the Provisions of an act ofthe legislature of this state, entered into a recognizance in the clerk’s office, for the payment of the within two
This recognizance Williams moved that court to quash) °n the ground that the act of assembly under which it was taken, Was repugnant both to the consli-tution ofthe United States and to that of this state; and ^hat court accordingly quashed the recognizance, to which Blair, Ingles and Barr excepted, and appealed to this court.
act assembly, the constitutionality of which is called in question in this case, permits the plaintiff on issuing execution upon hisjudgment, tb endorse thereon
The act containing these provisions, being contended to be a violation of both the constitution of-United States and that of this state, the subject ly divides-itself into two branches: 1st, As it relates to the constitution of the United States; and 2d, ás it re*-lates to the constitution of this state. We will, there^ fore, consider the subject, first, as it relates to the constitution of the United States. '
It is that clause of the 10th section of the 1st article of the constitution of the United States, which declares, “ that no state shall pass any law impairing the obligation of contracts f with which the act of assembly in question is urged to be in conflict. That the contract between the parties in this case, is a contract within the truc meaning of this clause of the constitution, is- indisputable; nor was this made a point of controversy in the argument of the case; and assuming this to be in%gntro-vertable, there are but two questions which arise orwÉns branch of the subject.
.1st. What is the*|biigation of the contract between the parties in this case? and 2d, does the act of assem-Iffy in question, impair that obligation?1
1. The first of these questions is obviously the one of the mostdiílicuiij, anda proper exposition of the clause of the constitution in relation to. it, will, no doubt, lead' to an easy solution of the latter. • ■
This clause of the constitution of the United States,, has been frequently under the consideration of the supreme court of the nation, and’the judges of that court have invariably given to it a very ample effect, in the cases to which they have had occasion loapplj' it; but the†have in no instance given a definition of the obligation of a contract,- with such precision as to enable others to perceive, with accuracy in what it consists, and to
The term obligation, whether we consult its etymology or its general acceptation in our own language, will be found to signify a ligament or tie, something which binds, or obliges us to do or not to do some act. It is derived immediately from the Latin substantive obligation which is from the verb obligare, to tie, to bind, to oblige; and it is in the same sense that the English words derived from these, are universally used and received by all who either speak or write the English language. The obligation ofa contract, therefore, is', and can be nothing else, but that which obliges a person to perform his contract, or to repair the injury done by a failure to perform it. But what is it which obliges a person to perform his contract, or to repair the injury done by 3 failure to perform it?
Independent of all civil institutions, we are certainly under some obligation to perform all our duties. This obligation is agreed by writers upon natural law, to be 'perfect or imperfect, according to the nature of the duty. The duties-of benevolence, such for example, as the dutsies of gratitude and charity, being indefinite in iheir«alure and extent, are binding only in conscience, and give no right to any one to enforce their performance; and the obligation to perform^hem is, therefore, denominated imperfect.
But the obligation to perform the duties of justice, such as the duty of fulfilling our contracts, or of repairing an injury, is denominated a perfect obligation; for these duties being in their nature definite and certain, are not only binding in conscience, but give to the party to whom they are duo, a right to demand their performance, and to use force for the purpose of exacting it. The obligation of conscience is, therefore^ common both to the duties of benevolence and to those of justice; but to the latter is superadded, in a state of nature, the obligation arising from the right of those to whom such duties are due, to oblige their performance by the use of force, and it is this circumstance which constitutes
The remedy thus afforded by civil institutions, is the instrument with which the aggregate force of society is wielded, and by which men arc obliged to perform their duties towards each other; and the conclusiondsfirre-sistible, that as in a state of nature the force with which each one might oblige others to perform their duties towards him, constituted the perfect obligation of those duties; so it is the remedy which is substituted in the plape of individual force, that constitutes, in a state of civil society, the perfect obligation to the performance of those duties. This is denominated a civil, or legal obligation, in contradistinction from that natural but imperfect obligation, depending upon conscience alone. To the duty, therefore, of^erformingour contracts, or of .repairing the injury done by a failure to perform them, we are, in a state of civil society, not only bound in conscience, but we are moreover obliged by the remedy which th.e law gives to enforce that duty; and ns the remedy allowed by law upon a contract, is the only civil pieans which obliges to the performance of the con-
Pothier, whose character as a profound and able jurist, is known to every lawyer, is still more explicit and more in point. He divides obligations into those that are both natural and civil, those that are merely civil, and those that are merely natural. “ A civil obligation,” he says “ is a legal tie, vinculum juris, which gives the person in whose favor it is contracted, a right of judicially enforcing the performance of it. A natural obligation is that which obliges the person in honor and conscience. Obligations are commonly both natural and civil; there are some, however, which are merely civil, and which the debtor may be judicially compelled . to perform, without being under any obligation to do s<?, in point of conscience. There are, also, obligations which are merely natural, without being civil.” — - “■ These obligations,” he continues to observe, “ oblige the person contracting them, in point of honor and conscience'; but the law does notallow any action to compel the execution of them. These are only called obligations in an improper sense; for they are no legal ti^, vinculum juris; they do not impose upon the person contracting them any real necessity to accomplish them, as he cannot be compelled to do so by the person in whose favor they are contracted; and it is this necessity' •which constitutes the character of obligations, vinculum juris 'quo necessitate adstringimur.''1 Evans’ Pothier, part 2, chap. 1»
From the authority of jurists then, as well as from the Obvious reason and intrinsic propriety of the position, it results, that the legal obligation of a contract consists in the remedy given by law to enforce its performance,, or to make compensation for the failucg.to perform.it.
This clause was evidently intended to limit, m some degree, the legislative power of the states, in regard to the obligation of contracts. It cannot be supposed to have been deliberately inserted in so solemn an instrument, by the sages who framed the constitution, as a mere pleonasm, to have no effect but that of filling up a void space. A construction, therefore, which would render it inoperative, is wholly inadmissible. Such, however, would be the consequence of construing it to apply to the obligation arising from conscience, and not to the legal obligation of contracts; for the obligation depending upon conscience alone, is obviously beyond the reach of human legislation. It is an inherent attribute of the moral nature of man, and not the creature of civil institutions, and can neither be given nor taken away by human laws. It, in fact, identifies itself with the perceptions of right and wrong in the mind of each individual, being nothing else but that state of feeling which is produced by the judgment which every one forms of the rectitude or turpitude of his own actions, and its force must of course be exactly what it is felt to be in the mind of each individual. In the ignorant and vicious, it is felt but little; but in the enlightened and virtuous,' it acts with more power, and its effects are more conspicuous. From its very nature, therefore, the obligation depending upon conscience, cannot be the subject of human laws. Let these laws declare to the. contrary, as they may, the perception of right and wrong, and the.state of feeling consequent upon that perception, will still remain the same in the breast of the- enlightened and virtuous. In vain would the legislature of any country declare that conscience -should be no more, or that its obligation should cease. Conscience could not be thereby extinguished, and the yirtuous citizen, who perceived his duties, would still ■feel the unabated force of his obligation to perform those duties. . ■
But this exposition is still more rational, because the obligation arising from conscience, is but an imperfect obligation. It is called ar, obligation," says Pothier, in an improper sense; for it rather influences than obliges, and even its influence operates with various degrees upon different individuals; whereas the legal obligation is a perfect obligation; it is the chain of the* law, which binds equally all men, and compels them, by a real necessity, to perform their duties; and it is that necessity which constitutes the true character ofan obligation, it is, therefore, pre-eminently and emphatically the obligation of contracts, and must be understood to be -referred to by that phrase in the constitution.
To this construction it was objected in the argument, that as the remedy differed in.different states, to place the obligation of a contract in the remedy, and construe the constitution to prohibit the slates from passing any law impairing that obligation, would be giving to-the constitution a different effect in the different states; whereas the rule prescribed by the»constitution,is a rule for the nation, and ought to be uniform in all the states. It re undoubtedly true, that the legal obligation of 'a' contract will differ in different countries, in proportion as the remedy allowed by law upon the contract, may differ in those countries. For, let a contract be made in what country it may, its legal obligation in any other, must depend upon the remedy, allowed by the laws of that country to enforce the cogteijct. Thus, for
Again, it was objected to this construction of the con-■efitu lion,, that it would prevent the states from abolishing one system of courts and establishing another, or from changing the times and places of holding courts, as their convenience may require, because the remedy ■might be thereby affected. To this objection the true answer is, that the obligation of a contract consists in the remedy, and not in the court which administers the ■remedy; and though the courts may be altered, or the times and places of holding them changed, the remedy will be the same. It is true, that the remedy may be thereby affected; but that can only result asan indirect and collateral consequence of the measure, and such a consequence, we cannot admit, ought to prevent the states from exercising a power which indisputably belongs to them. But, conceding that it should do so, it would only require the power to be exercised with the requisite precaution, fo avoid the consequence.
But it was again objected, that this court had, by its decisions, settled that the remedy cannot, in the nfean-ing of the constitution, constitute the obligation of a contract; and in support of this position, we were referred to the cases of Grubbs vs. Harris, 1 Bibb 567, and Rearden vs. Searcy’s heirs, 2 Bibb 202.
In the former of these cases, it was'held that the act of assembly giving the remedy by pelition and summons
Still, however, before we can determine what is {'he-obligation of the contract between the parties in this-case, it is necessary,to ascertain when the obligation Commences to exist. It is perfectly clear, that it cannot commence before th'e date of the contract; for it would be preposterous, to suppose that a contract could either give to the one party any right, or be the causo-of imposing upon the other any obligation, prior to its existence. This would, in truth, be supposing the effect to exist before its cause, and would be in contradiction of the universal, order of nature, both in the physical and moral world. It would he absurd, therefore, to construe the constitution of the United States to operate as a prohibition of the states to pass any law in relation to the obligation of future contracts. With respect to these, notwithstanding the clause of the constitution in question, the states have an unlimited power, and they may therefore give or withhold, or modify and.regulate the remedy, as they may think proper. Upon this principle the practice of the states in passing replevy laws, insolvent laws, appraisement laws, and other laws of the like character, is, so far as these affect future contracts, perfectly reconcileable with the-constitution of the United States-; and the recognition of those laws by the act of congress, cited in the argument, as directory to the marshals,- instead of proving, as was supposed, that the obligation of a contract did not •consist in the -remedy to enforce it, only' tends to show
But, self-evident as the principle is, that the obligation of a contract cannot exist before the contract has an existence, there is one decision of the supreme court of the LTnited States, which is apparently iri;econcileab]e. with it, and as the decision was unanimous and by a full . court, it might be thought, perhaps, conclusive on this point, if it had been in a case analogous to the present; but it is not so, and not perceiving the principle upon which it was decided, it is mentioned here, only to recall the attention of that court to the re-consrderation of the principle involved in it. The case to which we allude is that of M'Millen vs. McNeill, 4 Wheaton 209, in which the supreme court held that a bankrupt or insolvent law of a state, which exempts the insolvent from all liability, after his discharge, upon any contract made before the discharge, was a law which impaired the obligation of a contract made by the insolvent after the passage of the law. That court had previously, very properly decided, in the case of Sturges vs. Crowninshield, ibid 122, that such a state law was one which impaired the obligation of a contract made by the bankrupt or insolvent before the passage of the law; and when they come to decide the case of M’Millen vs. M'Neill, they sajr, “ that the latter case is not distinguishable in principle from the preceding,” without giving any further explanation of the grounds of the decision.
With due respect for the high authority of that court, we must be permitted to say, that we do notperceive the analogy in the principle of the two cases, and unless the effect can precede its cause, and the obligation of a contract exist before the contract has an existence, the latter decision cannot, we conceive, he correct. We
Now, as it is the law which gives the remedy, how is it possible, we ask, upon the supposition that the remedy constitutes the obligation of a contract, that any law passed before a contract is made, can impair its obligation? Most evidently, if it is the law which gives to the contract its obKgation, as long as the law which was in force at the time the contract was made, continues the same, the obligation of the contract must remain the same, and, of course, cannot he impaired. But conceding that the obligation of a contract in the meaning of the constitution, were, that which arises from conscience alone, and that such obligation could be impaired or destroyed by a bankrupt or insolvent law, yet the case would not be altered; for if a law of that sort could destroy or impair the obligation of a contract, arising from conscience, it would, if the contract was made after the passage of the law, prevent the obligation from ever existing, or from existing in a greater extent than that which was prescribed by the law. Unless, therefore, we could adopt the absurd and inadmissible position, that the obligation of a contract can exist before the contract has an existence, we cannot conceive how the decision of the supreme court can be corred.- The error, if it be an error, as we suppose, m,ust have resulted from not ascertaining with sufficient precision in what the obligation of a contract consists, and in confounding the contract with its obligation; things which are perfectly distinct. But although the obligation of a contract cannot exist before the contract, it most obviously must exist cotemporaneously with the contract. The contract gives to the one party a right, and, of course, must give rise to the obligation of the other; for the right and the obligation are' correlative,
2. Does, then, the act of assembly in question, impair that obligation ? By the law as it stood at the date of the contract, the defendants were allowed to replevy the debt but for three months only, and the mSney, if not then paid, was required to be made of their estate, without farther delay; but by the act in question, they are allowed to replevy the debt for two years, or enter into a recognizance for the payment of the money within that time. And surely it cannot require argument to prove that the latter act impairs the obligation imposed by the former law. Indeed, the avowed object of the act in question, was, to relieve the debtor from the obligation he was under, to pay his debt in the time-prescribed by the former law, and give him farther time of payment; and according to any sense of the word, the act in question must impair the obligation imposed by the former law, and is, therefore, unconstitutional and void, as it relates to the contract between the parties in this case, as well as to all contracts made previous to the passage of the act.
As the judgment of the circuit court, quashing the recognizance, is, on this ground, correct, it is unnecessary to examine into the subject as it relates to the constitution of this state.
The judgment must, therefore, he affirmed with costs.
