網頁圖片
PDF
ePub 版

of the state held that the law fell within the provisions of the Constitution of the United States, so far as contracts entered into before its passage were concerned. But the courts held a different doctrine-that the remedy by which the contract was enforced formed no part of the contract. The decisions of the courts of New York have been followed by every other state in the Union where similar laws have been enacted, and it was not until 1845 that the subject was carried to the Supreme Court of the United States, where the doctrine of the state courts was reversed. On this decision he (Mr. B.) based his change of opinion since what he had expressed yesterday. Today he should vote for the motion to amend, that it may prevent such suits as the one here reported. The operation of the amendment would prevent any subsequent act of the legislature from affecting a transaction entered into before the passage of the law. If there were no danger of the courts in this state following the decisions of the states rather than that of the United States, then the provision would be unnecessary. The amendment covered no more ground than is covered by the decision, and would, he believed, tend to prevent lawsuits.

(Mr. B., in the course of his remarks read several extracts from the opinion of the court, which were also referred to by Mr. Tweedy, and will be found in his remarks, reported below.)

Mr. Ryan. The case of Bronson vs. Kenzie, decided in 1843 and of McCracken vs. Hayward are contradictory to and overrule all the former decisions of the state courts, and he well remembered with what surprise the decisions were received by the bar; and he was not aware that those opinions had been followed by the state courts. All that he desired by the proposed amendment was to place the law as laid down in the decisions beyond dispute; while if it be not adopted it will be a mooted point. Before these late decisions there was no question of the law in these cases; but since, the whole matter is cast afloat, and it is exceedingly difficult to determine what course the state courts will pursue, and it will prove a fruitful source of litigation till the points are again settled. To

adopt this amendment will be saying no more than that we adopt the law as decided by the supreme court.

Mr. Ryan defended the constitution of New Jersey in particular and showed from the commentator in the Democratic Review alluded to by G. B. Smith that this provision had his approbation.

Mr. Beall spoke against the amendment, but owing to his remote position from the reporter's desk and some noise in the hall his argument was lost to the reporter. He closed by asking if any such provision could be found in the new constitution of New York.

Mr. Tweedy: A proposition to insert such a provision was introduced in the convention, but owing to the opposition of the antirenters it did not prevail, and their new constitution has no provision on the subject, leaving the matter to the operation of the Constitution of the United States. The first and most important decision on this point was the case of Bronson vs. Kenzie made in 1843, which is not in this library. That was followed by McCraken vs. Hayward (2 Howard, 608). From this last case he read as part of his argument. Judge Baldwin in delivering the opinion of the court says:

"In placing the obligation of contracts under the protection of the constitution, its framers looked to the essentials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution. 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 law in existence when it is made; these are necessarily referred to in all contracts, and forming 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 affects to

diminish the duty, or to 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.

"The obligation of the contract between the parties, in this case, was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions. If the defendant had made such an agreement as to authorize a sale of his property, which should be levied on by the sheriff, for such price as should be bid for it, at a fair public sale on reasonable notice, it would have conferred a right on the plaintiff, which the constitution made inviolable; and it can make no difference whether such right is conferred by the terms or law of the contract. Any subsequent law which denies, obstructs, or impairs this right, by superadding a condition that there shall be no sale for any sum less than the value of the property levied on, to be ascertained by appraisement, or any other mode of valuation than a public sale, affects the obligation of the contract as much in the one case as the other, for it can be enforced only by a sale of the defendant's property, and the prevention of such sale is a denial of a right. The same power in a state legislature may be carried to any extent, if it exists at all; it may prohibit a sale for less than the whole appraised value, or for three-fourths, or nine-tenths; for if the power can be exercised to any extent, its exercise must be a matter of uncontrollable discretion in passing laws relating to the remedy, which are regardless of the effect on the right of the plaintiff. This was the ruling principle in the case of Bronson vs. Kenzie, which arose on a mortgage containing a coyenant, that, in

[graphic][merged small][merged small][merged small]
[ocr errors]
« 上一頁繼續 »