Part 8
The cause was heard at two terms, that of 1824, and that of 1827.
It was argued by Webster, Wheaton, Wirt, Clay, Livingston, Ogden, Jones, Sampson, and Haines; nine in all. Their arguments were so voluminous that they could not be reported at length. Only summaries of them are given. But these summaries occupy thirty-eight pages in the reports.
The judges, at that time, were seven, _viz._, Marshall, Washington, Johnson, Duvall, Story, Thompson, and Trimble.
The judges gave five different opinions; occupying one hundred pages of the reports.
But no one definition of "the obligation of contracts" could be agreed on; _not even by a majority_.
Here, then, sixteen lawyers and judges--many of them among the most eminent the country has ever had--were called upon to give their opinions upon a question of the highest importance to all men's natural rights, to all the interests of civilized society, and to the very existence of civilization itself; a question, upon the answer to which depended the real validity, or invalidity, of every contract that ever was made, or ever will be made, between man and man. And yet, by their disagreements, they all virtually acknowledged that they did not know what "the obligation of contracts" was!
But this was not all. Although they could not agree as to what "the obligation of contracts" was, they did all agree that it could be nothing which the State lawmakers could not prohibit and abolish, _by laws passed before the contracts were made_. That is to say, they all agreed that the State lawmakers had absolute power to prohibit all contracts whatsoever, for buying and selling, borrowing and lending, giving and receiving, property; and that, whenever they did prohibit any particular contract, or class of contracts, _all such contracts, thereafter made, could have no "obligation"_!
They said this, be it noted, not of contracts that were naturally and intrinsically criminal and void, but of contracts that were naturally and intrinsically as just, and lawful, and useful, and necessary, as any that men ever enter into; and that had as perfect a natural, intrinsic, inherent "obligation," as any of those contracts, by which the traffic of society is carried on, or by which men ever buy and sell, borrow and lend, give and receive, property, of and to each other.
Not one of these sixteen lawyers and judges took the ground that the constitution, in forbidding any State to "pass any law impairing the obligation of contracts," intended to protect, against the arbitrary legislation of the States, the only true, real, and natural "obligation of contracts," or the right of the people to enter into all really just, and naturally obligatory contracts.
Is it possible to conceive of a more shameful exhibition, or confession, of the servility, the baseness, or the utter degradation, of both bar and bench, than their refusal to say one word in favor of justice, liberty, men's natural rights, or the natural, and only real, "obligation" of their contracts?
And yet, from that day to this--a period of sixty years, save one--neither bar nor bench, so far as I know, have ever uttered one syllable in vindication of men's natural right to make their own contracts, or to have the only true, real, natural, inherent, intrinsic "obligation" of their contracts respected by lawmakers or courts.
Can any further proof be needed that all ideas of justice and men's natural rights are absolutely banished from the minds of lawmakers, and from so-called courts of justice? Or that absolute and irresponsible lawmaking has usurped their place?
Or can any further proof be needed, of the utter worthlessness of all the constitutions, which these lawmakers and judges swear to support, and profess to be governed by?
SECTION XVIII.
If, now, it be asked, what is this constitutional "obligation of contracts," which the States are forbidden to impair, the answer is, that it is, and necessarily must be, the _natural_ obligation; or that obligation, which contracts have, on principles of natural law, and natural justice, as distinguished from any arbitrary or unjust obligation, which lawmakers may assume to create, and attach to contracts.
This natural obligation is the only _one_ "obligation" which _all_ obligatory contracts can be said to have. It is the only _inherent_ "obligation," that any contract can be said to have. It is recognized all over the world--at least as far as it is known--as the one only _true_ obligation, that any, or all, contracts can have. And, so far as it is known--it is held valid all over the world, except in those exceptional cases, where arbitrary and tyrannical governments have assumed to annul it, or substitute some other in its stead.
The constitution assumes that this _one_ "obligation of contracts," which it designs to protect, is the natural one, because it assumes that it existed, _and was known_, at the time the constitution itself was established; and certainly no _one_ "obligation," _other than the natural one_, can be said to have been known, as applicable to all obligatory contracts, at the time the constitution was established. Unless, therefore, the constitution be presumed to have intended the natural "obligation," it cannot be said to have intended any _one_ "obligation" whatever; or, consequently, to have forbidden the violation of any _one_ "obligation" whatever.
It cannot be said that "the obligation," which the constitution designed to protect was any arbitrary "obligation," that was unknown at the time the constitution was established, but that was to be created, and made known afterward; for then this provision of the constitution could have had no effect, until such arbitrary "obligation" should have been created, and made known. And as it gives us no information as to how, or by whom, this arbitrary "obligation" was to be created, or what the obligation itself was to be, or how it could ever be known to be the one that was intended to be protected, the provision itself becomes a mere nullity, having no effect to protect any "obligation" at all.
It would be a manifest and utter absurdity to say that the constitution intended to protect any "obligation" whatever, unless it be presumed to have intended some particular "obligation," _that was known at the time_; for that would be equivalent to saying that the constitution intended to establish a law, of which no man could know the meaning.
But this is not all.
The right of property is a natural right. The only real right of property, that is known to mankind, is the natural right. Men have also a natural right to convey their natural rights of property from one person to another. And there is no means known to mankind, by which this _natural_ right of property can be transferred, or conveyed, by one man to another, except by such contracts as are _naturally_ obligatory; that is, naturally capable of conveying and binding the right of property.
All contracts whatsoever, that are naturally capable, competent, and sufficient to convey, transfer, and bind the natural right of property, are naturally obligatory; and really and truly do convey, transfer, and bind such rights of property as they purport to convey, transfer, and bind.
All the other modes, by which one man has ever attempted to acquire the property of another, have been thefts, robberies, and frauds. But these, of course, have never conveyed any real rights of property.
To make any contract binding, obligatory, and effectual for conveying and transferring rights of property, these three conditions only are essential, _viz._, 1. That it be entered into by parties, who are mentally competent to make reasonable contracts. 2. That the contract be a purely voluntary one: that is, that it be entered into without either force or fraud on either side. 3. That the right of property, which the contract purports to convey, be such an one as is naturally capable of being conveyed, or transferred, by one man to another.
Subject to these conditions, all contracts whatsoever, for conveying rights of property--that is, for buying and selling, borrowing and lending, giving and receiving property--are naturally obligatory, and bind such rights of property as they purport to convey.
Subject to these conditions, all contracts, for the conveyance of rights of property, are recognized as valid, all over the world, by both civilized and savage man, except in those particular cases where governments arbitrarily and tyrannically prohibit, alter, or invalidate them.
This _natural_ "obligation of contracts" must necessarily be presumed to be the one, and the only one, which the constitution forbids to be impaired, by any State law whatever, if we are to presume that the constitution was intended for the maintenance of justice, or men's natural rights.
On the other hand, if the constitution be presumed not to protect this _natural_ "obligation of contracts," we know not _what_ other "obligation" it did intend to protect. It mentions no other, describes no other, gives us no hint of any other; and nobody can give us the least information as to what other "obligation of contracts" was intended.
It could not have been any "obligation" which the _State_ lawmakers might arbitrarily create, and annex to _all_ contracts; for this is what no lawmakers have ever attempted to do. And it would be the height of absurdity to suppose they ever will invent any _one_ "obligation," and attach it to _all_ contracts. They have only attempted either to annul, or impair, the natural "obligation" of _particular_ contracts; or, _in particular cases_, to substitute other "obligations" of their own invention. And this is the most they will ever attempt to do.
SECTION XIX.
Assuming it now to be proved that the "obligation of contracts," which the States are forbidden to "impair," is the _natural_ "obligation"; and that, _constitutionally speaking_, this provision secures to all the people of the United States the right to enter into, and have the benefit of, all contracts whatsoever, that have that _one natural_ "obligation," let us look at some of the more important of those State laws that have either impaired that obligation or prohibited the exercise of that right.
1. That law, in all the States, by which any, or all, the contracts of persons, under twenty-one years of age, are either invalidated, or forbidden to be entered into.
The mental capacity of a person to make reasonable contracts, is the only criterion, by which to determine his legal capacity to make obligatory contracts. And his mental capacity to make reasonable contracts is certainly not to be determined by the fact that he is, or is not, twenty-one years of age. There would be just as much sense in saying that it was to be determined by his height or his weight, as there is in saying that it should be determined by his age.
Nearly all persons, male and female, are mentally competent to make reasonable contracts, long before they are twenty-one years of age. And as soon as they are mentally competent to make reasonable contracts, they have the same natural right to make them, that they ever can have. And their contracts have the same natural "obligation" that they ever can have.
If a person's mental capacity to make reasonable contracts be drawn in question, that is a question of fact, to be ascertained by the same tribunal that is to ascertain all the other facts involved in the case. It certainly is not to be determined by any arbitrary legislation, that shall deprive any one of his natural right to make contracts.
2. All the State laws, that do now forbid, or that have heretofore forbidden married women to make any or all contracts, that they are, or were, mentally competent to make reasonably, are violations of their natural right to make their own contracts.
A married woman has the same natural right to acquire and hold property, and to make all contracts that she is mentally competent to make reasonably, as has a married man, or any other man. And any law invalidating her contracts, or forbidding her to enter into contracts, on the ground of her being married, are not only absurd and outrageous in themselves, but are also as plainly violations of that provision of the constitution, which forbids any State to pass any law impairing the natural obligation of contracts, as would be laws invalidating or prohibiting similar contracts by married men.
3. All those State laws, commonly called acts of incorporation, by which a certain number of persons are licensed to contract debts, without having their individual properties held liable to pay them, are laws impairing the natural obligation of their contracts.
On natural principles of law and reason, these persons are simply partners; and their private properties, like those of any other partners, should be held liable for their partnership debts. Like any other partners, they take the profits of their business, if there be any profits. And they are naturally bound to take all the risks of their business, as in the case of any other business. For a law to say that, if they make any profits, they may put them all into their own pockets, but that, if they make a loss, they may throw it upon their creditors, is an absurdity and an outrage. Such a law is plainly a law impairing the natural obligation of their contracts.
4. All State insolvent laws, so-called, that distribute a debtor's property equally among his creditors, are laws impairing the natural obligation of his contracts.
If the natural obligation of contracts were known, and recognized as law, we should have no need of insolvent or bankrupt laws.
The only force, function, or effect of a _legal_ contract is to convey and bind rights of property. A contract that conveys and binds no right of property, has no _legal_ force, effect, or obligation whatever.[4]
[4] It may have very weighty moral obligation; but it can have no legal obligation.
Consequently, the natural obligation of a contract of debt binds the debtor's property, and nothing more. That is, it gives the creditor a mortgage upon the debtor's property, and nothing more.
A first debt is a first mortgage; a second debt is a second mortgage; a third debt is a third mortgage; and so on indefinitely.
The first mortgage must be paid in full, before anything is paid on the second. The second must be paid in full, before anything is paid on the third; and so on indefinitely.
When the mortgaged property is exhausted, the debt is cancelled; there is no other property that the contract binds.
If, therefore, a debtor, at the time his debt becomes due, pays to the extent of his ability, and has been guilty of no fraud, fault, or neglect, during the time his debt had to run, he is thenceforth discharged from all legal obligation.
If this principle were acknowledged, we should have no occasion, and no use, for insolvent or bankrupt laws.
Of course, persons who have never asked themselves what the _natural_ "obligation of contracts" is, will raise numerous objections to the principle, that a legal contract binds nothing else than rights of property. But their objections are all shallow and fallacious.
I have not space here to go into all the arguments that may be necessary to prove that contracts can have no _legal_ effect, except to bind rights of property; or to show the truth of that principle in its application to all contracts whatsoever. To do this would require a somewhat elaborate treatise. Such a treatise I hope sometime to publish. For the present, I only assert the principle; and assert that the ignorance of this truth is at least one of the reasons why courts and lawyers have never been able to agree as to what "the obligation of contracts" was.
In all the cases that have now been mentioned,--that is, of minors (so-called), married women, corporations, insolvents, and in all other like cases--the tricks, or pretences, by which the courts attempt to uphold the validity of all laws that forbid persons to exercise their natural right to make their own contracts, or that annul, or impair, the _natural_ "obligation" of their contracts, are these:
1. They say that, if a law forbids any particular contract to be made, such contract, being then an illegal one, can have no "obligation." Consequently, say they, the law cannot be said to impair it; because the law cannot impair an "obligation," that has never had an existence.
They say this of all contracts, that are arbitrarily forbidden; although, naturally and intrinsically, they have as valid an obligation as any others that men ever enter into, or as any that courts enforce.
By such a naked trick as this, these courts not only strike down men's natural right to make their own contracts, but even seek to evade that provision of the constitution, which they are all sworn to support, and which commands them to hold valid the _natural_ "obligation" of all men's contracts; "anything in the constitutions or laws of the States to the contrary notwithstanding."
They might as well have said that, if the constitution had declared that "no State shall pass any law impairing any man's natural right to life, liberty, or property"--(that is, his _natural_ right to live, and do what he will with himself and his property, so long as he infringes the right of no other person)--this prohibition could be evaded by a State law declaring that, from and after such a date, no person should have any natural right to life, liberty, or property; and that, therefore, a law arbitrarily taking from a man his life, liberty, and property, could not be said to impair his right to them, because no law could impair a right that did not exist.
The answer to such an argument as this, would be, that it is a natural truth that every man, who ever has been, or ever will be, born into the world, _necessarily has been, and necessarily will be, born with an inherent right to life, liberty, and property_; and that, in forbidding this right to be impaired, _the constitution presupposes, implies, assumes, and asserts that every man has, and will have, such a right_; and that this _natural_ right is the very right, which the constitution forbids any State law to impair.
Or the courts might as well have said that, if the constitution had declared that "no State shall pass any law impairing the obligation of contracts made for the purchase of food," that provision could have been evaded by a State law forbidding any contract to be made for the purchase of food; and then saying that such contract, being illegal, could have no "obligation," that could be impaired.
The answer to this argument would be that, by forbidding any State law impairing the obligation of contracts made for the purchase of food, the constitution presupposes, implies, assumes, and asserts that such contracts have, and always will have, a _natural_ "obligation"; and that this _natural_ "obligation" is the very "obligation," which the constitution forbids any State law to impair.
So in regard to all other contracts. The constitution presupposes, implies, assumes, and asserts the natural truth, that certain contracts have, _and always necessarily will have_, a _natural_ "obligation." And this _natural_ "obligation"--which is the only real obligation that any contract can have--is the very one that the constitution forbids any State law to impair, in the case of any contract whatever that has such obligation.
And yet all the courts hold the direct opposite of this. They hold that, if a State law forbids any contract to be made, such a contract can then have no obligation; and that, consequently, no State law can impair an obligation that never existed.
But if, by forbidding a contract to be made, a State law can prevent the contract's having any obligation, State laws, by forbidding any contracts at all to be made, can prevent all contracts, thereafter made, from having any obligation; and thus utterly destroy all men's natural rights to make any obligatory contracts at all.
2. A second pretence, by which the courts attempt to evade that provision of the constitution, which forbids any State to "pass any law impairing the obligation of contracts," is this: They say that the State law, that requires, or obliges, a man to fulfil his contracts, _is itself_ "_the obligation_," which the constitution forbids to be impaired; and that therefore the constitution only prohibits the impairing of any law for enforcing such contracts as shall be made under it.
But this pretence, it will be seen, utterly discards the idea that contracts have any _natural_ obligation. It implies that contracts have no obligation, except the laws that are made for enforcing them. But if contracts have no _natural_ obligation, they have no obligation at all, _that ought to be enforced_; and the State is a mere usurper, tyrant, and robber, in passing any law to enforce them.
Plainly a State cannot rightfully enforce any contracts at all, unless they have a _natural_ obligation.
3. A third pretence, by which the courts attempt to evade this provision of the constitution, is this: They say that "the law is a part of the contract" itself; and therefore cannot impair its obligation.
By this they mean that, if a law is standing upon the statute book, prescribing what obligation certain contracts shall, or shall not, have, it must then be presumed that, whenever such a contract is made, the parties intended to make it according to that law; and really to make the law a part of their contract; _although they themselves say nothing of the kind_.
This pretence, that the law is a part of the contract, is a mere trick to cheat people out of their natural right to make their own contracts; and to compel them to make only such contracts as the lawmakers choose to permit them to make.
To say that it must be presumed that the parties intended to make their contracts according to such laws as may be prescribed to them--or, what is the same thing, to make the laws a part of their contracts--is equivalent to saying that the parties must be presumed to have given up all their natural right to make their own contracts; to have acknowledged themselves imbeciles, incompetent to make reasonable contracts, and to have authorized the lawmakers to make their contracts for them; for if the lawmakers can make any part of a man's contract, and presume his consent to it, they can make a whole one, and presume his consent to it.
If the lawmakers can make any part of men's contracts, they can make the whole of them; and can, therefore, buy and sell, borrow and lend, give and receive men's property of all kinds, according to their (the lawmakers') own will, pleasure, or discretion; without the consent of the real owners of the property, and even without their knowledge, until it is too late. In short, they may take any man's property, and give it, or sell it, to whom they please, and on such conditions, and at such prices, as they please; without any regard to the rights of the owner. They may, in fact, at their pleasure, strip any, or every, man of his property, and bestow it upon whom they will; and then justify the act upon the presumption that the owner consented to have his property thus taken from him and given to others.
This absurd, contemptible, and detestable trick has had a long lease of life, and has been used as a cover for some of the greatest of crimes. By means of it, the marriage contract has been perverted into a contract, on the part of the woman, to make herself a legal non-entity, or _non compos mentis_; to give up, to her husband, all her personal property, and the control of all her real estate; and to part with her natural, inherent, inalienable right, as a human being, to direct her own labor, control her own earnings, make her own contracts, and provide for the subsistence of herself and her children.