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contract, were the same; that obligation and remedy were identical and synonymous. But the answer given to this proposition seems to be conclusive. It was,“ that the obligation and the remedy originate at different times.” The obligation to perform is certainly coeval with the contract itself, and operates anterior to the time of performance; while the remedy acts upon a broken contract, and enforces a pre-existing obligation. The right to contract is the acknowledged attribute of a free agent, and he may rightfully coerce performance from another free agent who violates his faith. Contracts have, consequently, an intrinsic obligation. When men enter into societies, they can no longer exercise this original and natural right of coercion ; it is surrendered for the means of coercion afforded by society. But the right to contract is not surrendered with the right to coerce performance. The former is still incidental to that degree of free agency which the laws of society leave to every individual, and the obligation of the contract is the necessary consequence of the right to make it. Laws regulate this right; and where it is not regulated, it is retained in its original extent. Obligation and remedy, then, are not identical; they originate at different times, and are derived from different sources.
But it was alleged that “the power of the state over the remedy might be used to the destruction of all beneficial results from the right ;” and hence it was inferred that “the construction which maintains the inviolability of the obligation must be extended to the power of regulating the remedy.” The difficulty, however, which this view of the subject presents, does not proceed from the identity or connexion of right and remedy, but from the existence of distinct governments, acting on kindred subjects.
The Constitution of the United States contemplates restraint as to the obligation of contracts, not as to the application of the remedy. If this restraint affect a power which the Constitution did not mean to touch, it can only be when that power is used as an instrument of hostility to invade the inviolability of contracts, which is placed beyond its reach. A state may use many of its acknowledged powers in such a manner as to come into conflict with the provisions of the Federal Constitution ; thus the powers over the domestic police, and the power to regulate its purely internal commerce, may, as we have already
be so exercised as to interfere with the regulation by Congress of commerce with foreign nations, or among the states. In such cases, as we have before observed, the power which is supreme must coritrol that which is subordinate. This principle neither involves self-contradiction, nor denies the existence of the several powers in the respective governments. So, if a state shall not merely modify or with. hold a particular remedy, but shall apply it in such a manner as to extinguish the obligation without performance of a contract, it would be an abuse of power which could scarcely be misunderstood ; but it would not prove that remedy could not be regulated without regulating obligation.
It was urged, however, as a conclusive argument against the existence of a distinct line of division between obligation and remedy, that “ the same power which can withdraw the remedy against the person of the debtor, can also withdraw that against his property,” and thus effectually defeat the obligation. “ The Constitution,” it was said, “ did not deal with form, but with substance; and could not be presumed, if it designed to protect the obligation of contracts from state legislation, to have left it thus obviously
exposed to destruction.” The answer is, that the state law goes farther, and annuls the obligation without affording the remedy which satisfies it; or, if its action on the remedy be such as palpably to impair the obligation of the contract, the very case arises which was supposed to be prohibited. If the law leaves the obligation untouched, but withholds the remedy, or affords one which is merely nominal, why, this is like all other cases of misgovernment, and leaves the debtor still liable to his creditors, should he, or his property, be found where the laws afford a remedy. But should it even be determined that such a law was a successful evasion of the Constitution, it would not follow that an act which operates directly on the contract after it is made was not within the restriction imposed on the states. The validity of a law acting immediately upon the obligation is not proved by showing that the Constitution has provided no means for compelling the states to enfore the contract. The prohibition in question is, therefore, not incompatible with the fair exercise of that discretion which the state legislatures possess, in common with all governments, to regulate the remedies afforded by their own courts.
It is impossible to look back to the history of the times when the august spectacle was exhibited of a whole people assembling by their representatives in order to unite thirteen independent sovereignties under one government, so far as might be necessary for the purposes of union, without being sensible of the great importance which was attached to this article of the Constitution. The power of changing the relative situations of debtor and creditor, of interfering with contracts, a' power which comes home to the business of every man, touches the interest of all classes, and controls the conduct
of every individual in those things which he supposes proper for his own exclusive management, had been abused to such an excess by the state legislatures as to break in upon the ordinary intercourse of society, and destroy all confidence between man and
The mischief had become so great and so alarming, as not only to impede commercial intercourse and threaten the existence of public credit, but to injure the morals of the people, and destroy the sanctity of private faith. To guard against the recurrence of such evils was an object of deep interest with all the truly wise and virtuous men in the community, as well as in the Convention, and one of the most important benefits anticipated and realized from the reform of the government.
The imposition of restraints on state legislation in regard to this delicate subject was thought necessary by all who took an honest, enlightened, and comprehensive view of the situation of the country, and the principle in question obtained an early admission into the various schemes of government submitted to the Convention. In framing a national compact intended to be perpetual, the presumption is, that every important principle introduced into it was intended to be perpetual also; and, if expressed in terms which give it operation in all future time, the fair inference is, that it was intended so to operate. But, if the construction against which we have been contending be the true one, the Constitution will have imposed a restriction in words, which every state in the Union may elude at pleasure. The obligation of contracts in force at any given period is but of short duration, and if the inhibition be of retrospective laws only, a very short lapse of time would remove every subject on which the act is forbidden by the Constitution to operate, and render this provision so far useless.
Instead of introducing a great principle prohibiting all laws of this obnoxious character, the Constitution would only suspend their operation for a season, or only except pre-existing cases: an object which would hardly have been deemed of sufficient importance to have found a place in that instrument. Such a construction, moreover, would change the character of the provision, and convert an inhibition to pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws. Had this been all that was intended by the Convention, it would probably have been expressed in those very words: the prohibition would have been against “ any retrospective law,” instead of the more general one against “any law impairing the obligation of contracts ;" or, if the intention had been not to embrace all retrospective laws, but those only which related to contracts, the State Legislature would have been forbidden to pass “ any retrospective law impairing the obligation of contracts,” or “any law impairing the obligation of contracts previously made.” For if the minds of the Convention, in framing this prohibition, had been directed not generally to the operation of laws upon the obligation of contracts, but particularly to their retrospective operation, it is scarcely conceivable, notwithstanding the imperfection of human language, that some words would not have been used to indicate that idea, and limit their intention. In instruments prepared on great consideration, and especially in those granting political power, general terms, comprehending a whole subject, are seldom employed to designate a particular or minute portion of it. The general language of this clause is such as might be suggested by a general intent to prohibit state legislation on the subject to which that language is applied--the obligation of contracts—not such as