and the obligation by which it enforces and maintains it. It is this protection which the clause in the Constitution mainly intended to secure. And it would be unjust to the memory of the distinguished men who framed it, to suppose that it was designed to protect a mere barren and abstract right, without any practical operation upon the business of life. It was undoubtedly adopted as a part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout the Union, by placing them under the protection of the Constitution of the United States. And it would ill become this court, under any circumstances, to depart from the plain meaning of words used, and to sanction a distinction between the right and the remedy which would render the provision illusive and nugatory."

It would seem to be plain that Chief Justice Taney had in mind the distinction which I have stated from Austin, between the essential remedial right, and the modes of procedure. Yet it is remarkable that many state judges have shut their eyes to his whole course of reasoning, and to the conclusions reached by that reasoning, and not a few have given far more weight to the dictum incidentally thrown into his remarks concerning the power of a state legislature to exempt property from execution, than to the principle of constitutional construction upon which the judgment of the court proceeded.

§ 616. In McCracken v. Hayward1 (1844), Baldwin, J., while pronouncing the judgment of the court, used language as the foundation of that decision, even yet more emphatic : "In placing the obligation of a contract under the protection of the Constitution, its framers looked to the essentials of a contract more than the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it. The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all con1 2 Howard's R. 608, 612.

tracts, and form a part of them, as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law diminish the duty, or impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other. Hence, any law which, in its operation, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution."

In Grantly's Lessee v. Ewing (1845), the court said: "This court held in Bronson v. Kinzie that a right and a remedy substantially in accordance with the right, were equally parts of the contract, secured by the laws of the state where it was made; and that a change of these laws, imposing conditions and restrictions on the mortgagee in the enforcement of his contract, and which affected its substance, impaired the obligation and could not prevail; as an act directly prohibited could not be done indirectly."

"The

In Curran v. Arkansas 2 (1853), the court said: obligation of a contract, in the sense in which these words are used in the Constitution, is that duty of performing it which is recognized and enforced by the laws. And if the law is so changed, that the means of legally enforcing this duty are materially impaired, the obligation of the contract no longer remains the same."

These several citations are not mere dicta, unnecessary to the decision of the cases in which they were uttered, but are formal statements of the very principle of constitutional law upon which the judgments of the court are based. I shall now briefly notice the application of this principle to some of 1 3 Howard's R. 707, 717.

2 15 Howard's R. 304.

the most common species of state statutes which directly apply to the remedy.

§ 617. (1.) Deprivation of Remedies. If the law of a state should assume to deprive the injured party of all remedial right upon an existing contract, the legislative act would plainly impair the obligation of such contract. This doctrine is fully established. The cases cited in the foot-note will show how it has been recognized by state courts.1 But if in addition to the ordinary remedial right by action for a specific performance, or for the recovery of pecuniary damages, the common law or statute had given a special, cumulative, and perhaps more summary right of redress, the state courts have held that the destruction of this special right does not impair the obligation of the contracts to which it was appropriate, if the general right by action be left in full force." As an application of this principle, it has been held that a law abolishing distress for rent, and made applicable to existing leases, is valid. I think it is by no means clear that these decisions do not trench upon the rule established by the Supreme Court of the United States. We will now pass to those classes of statutes which purport not to destroy, but simply to modify, an existing remedial right.

§ 618. (2.) Statutes of Limitation. A statute of limitation, shortening the time within which actions may be brought, and made applicable to existing contracts, may fall within the prohibition of the Constitution, or may be entirely unobjectionable. If its effect be to prevent an action, where the right of action exists, it would not only impair but absolutely destroy the obligation, and would be void. But if it left a reasonable time within which the injured party might bring his action, although that time might be shorter than had

1 Call v. Hagger, 8 Mass. R. 423, 429; Mundy v. Monroe, 1 Manning's R. 68; Kennebec Land Co. v. Laboree, 2 Greenl. R. 275, 293; Society for the Propagation of the Gospel v. Wheeler, 2 Gallis. R. 105, 141, per Story, J.

2 Stocking v. Hunt, 3 Denio's R. 274; Wood v. Child, 20 Ill. R. 209; Evans v. Montgomery, 4 W. & S. 218.

3 Van Rensselaer v. Snyder, 3 Kernan's R. 299; Conkey v. Hart, 4 Kernan's R. 22.

before existed, the remedial right would be perfect, the obligation would be unimpaired. Statutes of limitation are measures of public policy; and if the person clothed with a remedial right be left free to pursue it immediately after its inception, he is not damnified and cannot complain, if he be required to pursue it with diligence. Thus, the ordinary period within which actions may be brought upon simple contracts is six years; a state might reduce this period to three years; this legislative act would be void as to all existing contracts where the right of action had accrued more than three years, and less than six years before, for in such cases no action could thereafter be brought, and the remedial right would be gone; but the new law would be valid as to all existing contracts where the right of action had not yet accrued, or where it had accrued a year or two years before, for even in the latter cases there would be ample opportunity left within which to enforce the remedial right. These doctrines have been acknowledged by the national and state judiciary, and form part of the settled constitutional law of the land. A few state courts, however, have shown a disposition to give a greater force and efficacy to statutes of limitation.2

§ 619. (3.) Imprisonment for Debt. — Upon the same principle, a statute abolishing imprisonment for debt might be made applicable to existing contracts, and would not impair their obligation. Arrest and imprisonment of the debtor, like a preliminary attachment of his goods, is clearly a part of the mere procedure; it does not enter into our notion of the essential remedial right; it does not perform the stipulations of a contract, or pay pecuniary damages for their non-performance. The assent to this particular rule seems to have been universal.3

1 Call v. Hagger, 8 Mass. R. 423, 429; Kennebec Co. v. Laboree, 2 Greenl. R. 275, 293; S. P. G. v. Wheeler, 2 Gallis. R. 105, 141, per Story, J.; Sturges v. Crowningshield, 4 Wheat. R. 122, 207, per Marshall, C. J.; Bank of Alabama v. Dalton, 9 How. R. 522; McElmoyne v. Cohen, 13 Peters' R. 312.

2 Beal v. Nason, 2 Shepley's R. 344; Kingley v. Cousins, 47 Maine R. 91.

3 Oriental Bank v. Freeze, 6 Shepley's R. 109; Mason v. Haile, 12

§ 620. (4.) Stay and Appraisement Laws. The common form of stay laws is that in which an execution or other process is forbidden to be issued for some definite period of time after the recovery of a judgment. Statutes, however, which prohibit the injured party from commencing, or from prosecuting an action for a certain definite period of time after the breach of a contract, are identical in principle with stay laws, and constitute a particular class thereof. Appraisement laws are those which require the property of a judgment debtor seized on execution to be appraised, and forbid its official sale for a price less than some determinate portion of the appraised value. As these two classes of statutes are generally found existing in connection, forming parts of the same system of state policy, they may properly be considered together. They are the most common methods by which state legislatures have assumed to interfere with the remedial rights growing out of contracts. There has been much dispute in respect to their validity. State courts have generally sustained them. I do not hesitate to say, however, that so far as they are made applicable to existing contracts, and abridge the remedial rights of the creditor, they impair the obligation, and are void. This proposition is true upon principle, and is supported by that judicial authority which is binding in matters of constitutional

construction.

§ 621. The Supreme Court of the United States has had occasion to pass upon the validity of several state laws of this description, and has uniformly pronounced them void so far as they attempted to affect existing contracts. In Bronson v. Kinzie, an action was brought to foreclose a mortgage given in 1838 upon lands in Illinois. At that time the holder of the mortgage was entitled, by the law of the state, to foreclose the same immediately upon a breach of the condition, and to procure the land to be sold absolutely as soon as could be done according to the practice of the courts. In 1841 the legisla

Wheat. R. 370; Beers v. Haughton, 9 Peters' R. 329, 359; Bronson v. Newberry, 2 Dougl. R. 38; Donelly v. Corbett, 3 Seld. R. 500; Fisher v Lacky, 6 Blackf. R. 373.

1 1 Howard's R. 311.