The appellee brought an action of debt against W. I). Jacoway, as the administrator of Benjamin J. Jacoway, deceased, /on a lost writing obligatory for $4,500, with interest thereon ¡at ten per cent, from the 4th of October, 1861.
The defendant, in the court below, filed two special pleas, and after his removal as administrator, and the appellant’s appointment as his successor, she filed one special plea; to all of which pleas the appellee interposed a demurrer, which, by con■sent, was entered in short upon the record.
The first plea was, in substance: that the obligation sued upon was given in Arkansas, for three negro boys; that the appellee covenanted with the deceased that said boys were all .■slaves for life; that they were sound in body and mind, and that his title to them was good; that, by the adoption of the Constitution of 1862, for this State, said boys, while living, .■all became free, and no compensation was paid for them, and therefore the appellee’s covenant was broken, the consideration for said writing obligatory failed, and he was not bound to pay off the same.
The second plea sets up a like agreement, and avers that, by the adoption and ratification of an amendment to the Constitution of the Hnited States, the negro boys became free, with the same conclusion as the first plea.
The third plea sets up that the writing obligatory, sued upon, was given in said State, for the purchase price of three slaves sold by appellee to appellant’s intestate, and therefore it is null and void; and she prays judgment, that the court take no cognizance of the case, &e.
The court sustained the demurrer to all the pleas; the appellant rested; final judgment was rendered for the appellee for $7,912, to bear interest at the rate of ten per cent.; from which judgment the appeal to this court is prosecuted.
It may be borne in mind, in the discussion of the questions presented in this case, that at the time this contract was entered into, (October, I860,) it is conceded by all parties that negro slaves, under the laws of Arkansas, were property; that the owners of such property had then a legal right to sell and convey the same, and that a sale and delivery, under the laws then in force, was a sufficient and valid consideration for a writing obligatory or other promise to pay; that the contract in this case, when made between the parties, w.as legal and binding, and, under the then Constitution and laws of the State, could have been enforced.
These facts being understood, we will proceed to discuss the sufficiency of the defendant’s pleas.
It is insisted that the contract, though valid between the parties when made, has become nugatory; that the consideration has failed, and such contracts have been made unlawful.
It is argued, in support of the first plea, that the Constitutional Convention of 1864 had the power, and did liberate all slaves within the State, and the destruction of all property in the slaves, without fault of the obligor,-was a breach of the obligee’s warranty that they were slaves for life'; and, after ■.such failure of consideration, an action can not be maintained.
For the second plea the same argument is presented, only it bases the slaves’ freedom upon the amendment of the United States Constitution.
None question the fact that all slaves in the State have been ■emancipated and forever made free, but- lawyers and courts do not so well agree as to the sovereign act which gave them freedom;
The slave, in one sense, was property — the mere chattel interest of his master; in another, he was a person — a free agent — while the master was entitled to the services of him and his offspring forever, and could Sell and transfer them at will; yet he was, to an extent, recognized as an intelligent human being, held responsible to and protected by the law. He was a person and property, and capable of being acted upon by law in either capacity, and therefore was entitled to a position before the law that could not be claimed for property that was purely chattels, and we are not prepared to say the sovereign will of the people, acting upon his higher and personal status, might not have conferred upon him the privileges of a citizen, and placed him beyond the control of the property owner.
We deem it not necessary, now, to discuss the power of sovereignty, of State or nation, to liberate the slave, by acting upon his personal relationship to society. Be that power what it may, it was as well known to Jacoway as to Benton, and he then took such property with its status, as the same was well Understood before the law; and contingencies arising thereafter, from accident, death, act of Government, or of God, were matters for his consideration at the time he executed the contract, and not controlled by such contingencies in the future. See Grace v. Dorris, 24 Ark., 326; Haskill v. Sevier, 25 Ark., 152.
■ When the people of the slaveholding States, in 1861, entered into a combination with the intent and for the purpose of throwing off their allegiance to the Federal Government, and .setting up and maintaining an independent government for themselves, and to this end put on the paraphernalia, and assumed the responsibilities of open, hostile war, they then lost all the protection of citizens under the Constitution and Government of the United States, became public enemies of that Government, and were liable to all the deprivations and penalties consequent upon a state of war.
Having thus asserted their independence, declared their allegiance dissolved, and their right to maintain a separate hostile government by force of arms, they then fully assumed all the risks and consequences of existing war and its results.
Under these circumstances it was legitimate and proper for the Federal Government to move an armed force upon such rebellious States and pretended government, and, by physical strength, compel them to hear her mandates. In the exercise of such force, she was not to look to the rules laid down in her Constitution for her guidance between herself and peaceful States, which were performing all their duties towards the central government, but she, of necessity, was to be governed by the laws of war. She had to grant rebels the rights of war, and she could justly impose upon them the burdens, pains and penalties of war. Among these were the right to destroy their armed forces; to take and hold the territory they occupied; to confiscate their property; to levy duties upon their citizens under her control, or to seize their property and effects for temporary or permanent government use; and such captures, in war, not only deprive the former owner of the use of his property, but, by well understood' laws, forever extinguish his title. Another important consequence, assumed by all States engaging in war, is, that the conquering power has the lawful right to determine and fix the conditions of returning peace.
The proclamation of the President of the United States, declaring all slaves in the rebel States emancipated from the first day of January, 1863, was an important act in the war. Whether or not it was effective throughout the rebel States, as a war measure, it was .certainly valid as far as the Government forces could execute it. It was direct authority to the armies of the Union to make free all such slaves as might be by them captured.
All property of rebels, captured by the army, as soon as secure, became vested in the Government; and, when brought within her military lines, she could, with the utmost propriety, liberate slaves, muster them into her armies, or make any other disposition of them approved by humanity, and by her deemed best.
When the rebellious armies and civil authorities of this Confederacy had to acknowledge the superior force and right of the Federal Government, by the laws of war the will of the conqueror, the rules established for her armies, the mandate of the commander, was the law then, until other regulations could be properly made, and they could only be had under the direction of the triumphant government. Consequently, as a war measure, the Government had a legal right to seize this property, and to dispose of it as she saw fit. She exercised that right, and, through her Chief Executive, made known her intention by public proclamation ; and to this end her agents, the officers and soldiers in the field, issued orders that all such persons as had been and were held in slavery, be forever made free; and at once, through such agents, her armies, she proceeded to carry out said proclamation; and, as fast as they advanced, took possession of the tex’ritoxy, and extended protection to the colored men, they became unconditionally free. When the Confederate armies were overpowered, and threw down their ax’ms, the entire tex-ritory and population of the rebellious States at once passed under the military power and control of the armies of the Government, and all the people and property in such States became subject to their will and authority, and all slaves, not before that time liberated, at oxxce, ipso facto, became absolutely and forever free.
The better to secure the jxxst execution of the laws of the Government, and the faithful recognition of the newly acquix’ed rights of these people, and as terms for peace axxd protection to the conquei’ed soldiers, the oath of amnesty was tendered the x-eturning rebels, requiring their allegiance to the Government, and their most solemn pledge to maintain the rights of the freedmen. The slaves being free, to take all xúghts of that institution from the States and their laws, axxd bar future attempts to x’eestablish it, the Constitution of the United States was amended, and the late rebellioxxs States adopted new organic laws, prohibiting slavery or involuntary servitude (except for crime) for all time to come.
Ve are therefore of the opinion that the former slave does not trace his freedom to the amendments of the Constitution of the United States, or the enactments in the Constitution of the State of Arkansas, hut to the sovereign will of the nation,, in the assertion of her rights and privileges during active warj, manifested by her proclamations and carried into effect by her armies, under the laws of war, and assented to by her enemies; in their terms of peace. To this result, and these settled principles of policy, the organic and other laws readily conformed.
The third plea is a direct allegation that the writing obligatory, sued upon, was given for slaves; and avers that, under the Constitution of 1868, of this State, it has become null and void, and the courts of the State caii not take cognizance in the suit.
Ve feel that this presents a question of great importance, if not of much doubt. The late Convention not only declared slavery forever abolished, but attached other rights growing out of that institution, and enacted that contracts for slaves shall be held null and void.
This unmistakably demands of us to pass upon the powers of an important department of government, a task unusually difficult; and, of all others, the most delicate that can come before a court. We hesitate when a question is presented' with an apparent well founded constitutional objection to the action of a Legislature, and so much more do we feel to shrink from the responsibility of declaring whether or not the deliberate action of the sovereignty of a State, in Convention assembled, is or is not in conformity to or in violation of the natural and inalienable rights of a citizen of such State, or of the fundamental law of the nation. But the delicacy of the task, the importance and effect of the issue, the consciousness of the want of the high attainments for such solution, are no sufficient excuse, when the question requires an answer of this court; and, therefore, we will declare our convictions of the law from the very best lights that are before us.
Section 14, article XV., of our Constitution of 1868, enacts that “ all contracts for the sale or purchase of slaves are null and void, and no court of this State shall take cognizance of any suit founded on such contracts; nor shall any amount ever ■be collected or recovered on any judgment or decree which shall have been, or which hereafter may be, rendered on account of any such contract or obligation, on any pretext, legal or otherwise.”
Under the well understood rule that legislative acts should never have a retrospective construction, if they admit of any other, we could hold the first clause of this section operative only upon the future conduct of men; but the language used in the remaining part of the section is clearly retrospective, and shows beyond doubt that the Convention intended to cut off all remedy, in the courts of the State, upon all preexisting as well as future obligations and contracts based upon the consideration of slave property. The clauses in this section that beyond doubt are retrospective form a clear index to the true meaning of the entire paragraph, and irresistibly brings us to the conclusion that the whole section was to have such retro-action, and we prefer to meet these grave questions upon a fair and legitimate construction of those clauses in our Constitution, upon a just definition of what was the meaning and intention of the Convention, rather than try to quiet our consciences and avoid responsibility by some strained construction to show that it means a thing that never entered the mind of a single delegate in that Convention.
Then we assume that the Convention did intend, and by the section referred to did enact and declare, that both past and future obligations and contracts, resting upon the sale or purchase of slaves, should be held null and void, and that no court should take cognizance of or enforce any such obligation. Had the State Convention power to annul these existing contracts ? All concedo she could prohibit the enforcement of such future contracts ; that, when assembled in her sovereign capacity, she was perfectly competent to decide upon future public policy within her limits, and to prohibit or encourage any kind of business or class of dealings she might deem 'for the best interest of the people, regulated only by natural justice and the Constitution of the United States.
Before going into a full discussion of the legislative powers of a State, it may be well to notice what some consider a marked distinction between contracts growing out of transactions in slave property and those arising upon dealings in ordinary goods and chattels. The former are charged with being wrong in themselves; not that they were in violation of the laws of the land; not that they were criminal mala in se, or malaprohibita; hut they are said to have been contrary to natural right, immoral, and therefore tainted with -wrong, and of less binding force and effect than other civil obligations.
We must say, as a court, we can not see the legal force of the distinction. As a moralist, a religionist, or as an individual member of society, we may seriously condemn slavery, and every circumstance and incident attendant upon it; we may feel the just censure and guilt that rests upon our State and nation for so long maintaining such an institution, and from the depths of our consciences wish'to charge the offense back more than behind the third or fourth generation. Yet, as lawyers, we can but view the rights of individual members of society as the law-making powers -have declared or long suffered them to exist, and as judges we can not expound the laws according to our own views of ethics, or our own code of morals ; we can not declare that -which ought to have been but was not enacted, to be law; but that which emanated from the will and properly regulated action of the legislative department, we must utter as the correct rule of action — as the law unto the people.
Binding children out as apprentices is now right, because it is law. It is said to be for their good; that the master will care for and protect his servant. Should public sentiment change, and better provision be made for the poor, and acts placing children of the State under bonds of indenture to serve a master for fifteen or twenty long years, by law be declared a restraint upon. natural liberty, and an involuntary servitude for that great number of years, and a crime against the law, then courts would adjudge apprenticeships against public policy, a restraint upon natural rights, contrary to law, and void. But no objections which we may now have to placing a bright child for years under a master will allow us to adjudge against such act; and, under our system of government, can a change in policy and future legislative action come back and make void what we are lawfully doing now ? Public policy is but the manifested will of the State, and the question is, whether by a change in her will or policy, under our national Constitution, she can destroy a contract made underand sanctioned by her former policy.
The mind of the people, the deepest convictions of right and wrong, depend much upon education, as well as upon an innate sense of duty to men and God. 'What was just, right and religious, with the purest Christianity, of some communities and some ages, by others, equally intelligent, was regarded the most devilish of all earthly crimes. And, while we have attained a higher civilization than has blessed any other people, we are not to perfection. An age in the future may as deeply censure some of our present lawful practices as we now do that which has been termed “the legalized crime of the past.”
The appeals of the right and wrong must go to the political departments of the Government, to be there acted upon. Citizens need only conform to those acts, and the courts, under the national Constitution, are to protect rights as they have accrued under existing laws. Any contract properly sanctioned by the law-making power of a State, it matters not how defective in policy, how repugnant to our sense of moral justice, we can have no discretion in according to each one what the law has granted him as a right.
Under the oath of judges they must support the Constitution and administer the law, and when Constitutions and laws say a thing is right, courts dare not say it is wrong. "When that authority allowed slavery as a right, no court could adjudge censure or crime against one who dealt therein.
The sentiment of natural injustice to holding man in perpetual bondage has rapidly grown under modern civilization, and, in our country, become so intensified under the heat and protracted excitement of unparalleled war, that we can not expect men so soon to look calmly and dispassionately upon that institution and the rights that legally and equitably grow out of it.
When we see that the slave’s freedom ivas born in that terrible clash of arms, we may readily account for the fog and smoke that beclouds so many minds, when attempting to explain the peculiar institution of slavery, and the incidents naturally and legally growing out of the same.
Some men seem yet not to appreciate that our colored people are free. Others can not recognize the fact that they ever were slaves. With such evidences of remaining passion, can we expect extremists on either side to properly discern and appreciate property rights growing out of the institution of slavery ?
Notwithstanding the very general notion, the conceded proposition, that legal rights and legal wrongs have always been based upon the customs of men and the declared will of the State, some do violence to every principle of law and argue that slaveiy was always a crime, though sanctioned by the custom of ages, confirmed by law, adjudged by the ablest and purest courts of the country, and supported by the power of the nation ; yet they say it tainted and destroyed all contracts. The opposing zealots, with like pretended earnestness, say they had a property right in their slaves; that it was an inalienable right; that the whole sovereignty of the Government could not lawfully deprive them of such right; that the negroes are still their slaves, and that it is only illegal force which prevents them controlling them as property.
To such as have no comprehension of the powers and results of war, or the true basis of our Government and the nature of the political rights of her citizens, no one can expect to furnish a satisfactory conclusion. We must leave the field of so refined ethics, and avoid the mire of such bitter, blinded prejudice ; we must take clear and tenable ground; we must act as rational men; we must accept the law as it was and now is with imperfections ; we must examine slavery as it was ; we must consider the nation, the State and the people as they were, not as we think they should have been ; and in this view only-can we arrive at a correct conclusion and duly appreciate the rights of the parties to this suit.
When scrupulous as to slavery and its consequences, we must take comfort that it was not the creature of statute law, for which we or our immediate ancestors are responsible. It was entailed upon our nation at her birth; it grew up as she grew; it was the error of that age and of past ages ; it was regulated and sustained by State statutes, but not so created ; it was sanctioned by the people, and by their common consent it was made law, and that law allowed contracts to be made concerning slaves as property, as chattels, and that which was sanctioned by constitutional law the courts found to be right, and that which was against such law they always adjudged to be wrong.
One further observation: In speaking of the power of the Government over private rights, we may be understood as referring to rights generally, and not to those, well known exceptions — such as the taking of private property for public use, or the forcible taking, rising or desti’Oying.private property under the necessities of active war, &c. Where vast interests of large communities are at stake, private claims must give way to public necessities; and such cases are provided for in an exception to the general rule laid down in the fundamental laws of the Government.
Then, to the argument against this recovery:
1.. It is argued that, upon an agreement to perform an act which becomes unlawful to do, the obligor is excused. Be that true, it is in no way applicable to the case at bar. Jaeoway executed his writing obligatory, by which he was to pay $4,500 and interest. It is certainly not unlawful for his representatives to pay off his written obligation, and hence not a parallel case to those cited.
It is also said a contract must be mutual, and if one part fails, the whole must fall; that one party can not be bound and not the other. That is no more applicable than the other proposition. Denton was not hindered or excused by law from performing his part of the contract. lie had title to certain property, which, by mutual agreement, he sold, bill of saled and delivered to Jacoway. The whole understanding was completed. The contract on his part was fully complied with; nothing remained but for Jacoway to pay him the sum agreed upon.
This contract, when entered into, (October, I860,) was but an ordinary, valid agreement, under the laws of the State of Arkansas, and the consideration for the writing obligatory was ample. Denton, under the contract, had an unquestioned, plain, vested property right in that obligation, and this presents the distinct simple question, can he by any State authority be divested of that right without fault of his or public necessity.
We are told the Hnited States Constitution leaves it within the power of States, within their respective limits, to destroy vested rights, and to do so can only bring censure and condemnation upon such legislative act, but that it can not be set aside for want of power.
Grant that the national organic law, for objects worthy of so great latitude, does allow such arbitrary power to a State, the taking of a citizen’s property for the mere purpose of its destruction, or the taking of one man’s property and turning it over to another, would be outrages of singular enormity. No one could ever expect or fear State insanity and degradation that would procure such results. There might be danger of private citizens being divested of property for pretended public use. Here the national Constitution interposes and declares it shall not be done without just compensation.
But, in the frequent crashes and wonderful fluctuations in commerce, seeming necessities arise for a change in existing agreements, and the powerful influence of vast moneyed associations might possibly reach some fallible legislative body, where contracts and rights would be swept from the humbler, if not more honest, portion of society. Hence our fundamental law interposes and declares: “No State shall pass a law impairing the obligation of a contract.”
If we knew nothing of the force of combined commercial and moneyed interests, and the plausibility that could at*times be shown for a legislative change in contracts; if we knew nothing of the history of this provision in the Federal Constitution, and of the stupendous outrages imposed upon individuals and classes of individuals, by legislative changes, upon existing contracts, when these States were independent colonies, with no limit upon their power; if we knew nothing of the war of 1776 and its consequences, the disregard had for private contracts, compared with what was deemed public interests, we might wonder that our legislative bodies try to hasten every interest into the channel of improved public policy. Such is natural, and that natural proclivity called forth this constitutional barrier between the public will and individual contracts and rights. But we need not stop to reason in favor of this wise provision. It is enough for us to know that our proposition is within its intent and meaning.
This State constitutional provision does not take from our courts jurisdiction in actions of debt, or of contracts generally; but, whex-e it appears the consideration was a certain kind of property, xxo cognizance shall be taken or x'ecovery had. The vex-y language of the Constitution acknowledges this to be a contract, recognizes the obligation, and thexx declares it null and void.
Jaco way’s third plea accox’ds with this clause, axxd does not question the jurisdiction of the coux’ts to try matters of contract. Jurisdiction caxx be properly takeix — the parties, the subject matter, the whole case comes regularly before the court — but a fact, in evidexice, discloses the consideration, and then, and not till then, we are commanded to stop. It is not, therefore, for want of jurisdiction in such causes, nor for original illegality in the contract, or -wrong on the part of Denton, but solely and entirely upon the single, striking declaration of the Convention, that existing slave contracts are annulled and made void. Could they divest Denton of his right to recover upon an existing contract ?
In that clause of the United States Constitution, partially above quoted, section 10, article 1, it is declared: “No State shall * * * make any thing' but gold and silver coin a legal tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
It will be observed, in limiting the powers of these local or State Governments, the Constitution does not declare an inhibition against ordinary legislative assemblies, but declares no State shall impair such obligation. This injunction is to the sovereignty. The whole people, in any capacity or for any purpose assembled, can not constitute more than the State. Such assemblage is but the' sovereign power of the State, and of necessity can not be more or greater than the State; and, therefore, the prohibition is to the sovereignty. The prohibition goes to the power of a State, and not to the manner or character of her action.
In opposition it is urged that the State has sovereignty within herself, and that so far as her people are concerned, and her internal affairs and business are to be controlled and regulated, she is independent and all powerful. Upon this too great assumption of State rights and State power rested some of the weightiest and most disastrous errors of the present generation.
While our institutions and Government are largely democratic, it is a great mistake of its true character and foundation to suppose that all power is left in the hands of the people of a State; that their will is absolutely supreme over all the persons and property within such State, and that a majority, when assembled in person or-by delegates in convention, is to or can unconditionally' control all existing and future rights of property wdtlxin such limits.
This doctrine, we think, is made clear by the Constitution of the United States in these general declarations of inalienable rights: Paragraph 2, of article 6, declares: “This Constitution, and. the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”
And the next paragraph declares, that “ all judicial officers * * * of the United States and the sqjreral States shall be bound by oath to support this Constitution,” &c.
Thus, after declaring the United States Constitution the supreme law of the land, the judges of all the States are declared bound thereby, without regard to their own State Constitution or laws. Then, can there be any thing clearer than that it was a fundamental principle, in the'fonnation of our national organic law, that it was the very groundwork of our system, to place some restriction upon all law-making powers, less than the whole people of the Federal Government.
Our Territorial Government was organized under that Constitution. Our first and all valid subsequent constitutions have been formed under and in obedience to that, and with the well understood principle that our Constitution and laws must conform to those of the General Government, and with the express stipulation that our officers must take an oath to support that Constitution, and that it was and is paramount, notwithstanding any provision that might be made in our State Constitution or laws. We then feel that our obligations and duty-are plain, if we are fully convinced that there is a conflict between the Constitution of the United States and the Constitution or laws of our own State.
It is argued that there may be a violation of a contract, yet the State courts are prohibited, by the very power that created those courts, from inquiring into that question ; that so soon as they ascertain the contract is based upon slave property, as a consideration, the jurisdiction ceases, because the'7power that gave the courts their life has declared they shall not adjudge the rights of the parties after such, facts appear. This is but shifting the original proposition.- If the Convention cut off all remedy, no jurist would say they hail not impaired the right. Riggs v. Martin, 5 Ark., 506; Bennett v. Dawson, 18 Ark., 337; Leach v. Smith and wife, 25 Ark., 246; Bronson v. Kenzie, 1 How., 311; Green v. Biddle, 8 Wheat., 1 and 75.
If no State court can take jurisdiction between citizens of the State, there is no tribunal that can hear such complaints,, and the parties are deprived of all rights in such contract, and hence the same question arises, could the Convention divest them of such rights ?
In speaking of the protection of rights, and acts impairing the obligation of contracts, in 24 Ark., 320, Chief Justice Walker says: “Nor are these restrictions upon the State to be evaded or overridden by any claim of omnipotence by a Convention. In this respect, like a State Legislature, it is-subordinate to the Constitution of the United States.”
In the ease of Sturgess v. Crowninshield, 4 Wheat., 206, which was a proceeding attacking a State act of bankruptcy, the Supreme Court of the United States, through Chief Justice Marshall, says: “The Convention appears to have intended to establish the great principle that contracts should be inviolable.. The Constitution, therefore, declares that no State shall pass any law impairing the obligation of contracts.”
In an earlier paragraph of the same opinion, the court says: “ A contract is an agreement in which a party undertakes to do or not to do a particular thing.. The law binds him to perform his undertakings, and this is of course the obligation of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money, on or before a certain day. The contract binds him to pay that sum on that day, and this is its obligation. Any law which releases a part of the obligation must, in the literal sense of the word, impair it; much more must a law impair it which makes it totally invalid and entirely discharges it.”
Jaco way’s third plea admits the making of the contract, but avers that since then the State, through her Convention, has made it void and of no effect. The national Constitution says she shall not impair the obligation of a contract. The Supreme Court of the nation, through her chief justice, declares that any law releasing a part of an obligation impairs it, and much more must a law impair a contract if it makes it totally invalid. Yet in this case we are urged to declare Jacoway’s obligation invalid and utterly void.
In the case of McCracken v. Hayward, 2 How., 612, in which the validity of a law of Illinois, requiring property taken in execution to be appraised, and to bring two-thirds of its appraised value, was questioned, the United States Supreme Court says of the law, as operating upon contracts: “ 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, annulling all State legislation. 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 upon the latos 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 one party, and the right acquired by the other.”
How emphatically that court says the contract must be judged of by the laws existing when it was made. They say these laws are referred to, and they form a part of the contract, and the obligation and rights of the respective parties must be determined by these laws. There is no question as to the rights of Denton, or the duties of Jacoway, under the laws in force when this contract was made.
The Chief Justice of Kentucky, in Blain v. Williams, 4 Littell, 38, says: “The legal obligation of a contract evidently consists in the remedy to enforce it. If the remedy be withheld, or taken away, the contract has no legal obligation.” And he proceeds to declare a law, extending the time for the payment of a debt, void because it impaired the contract.
Chief Justice Sharkey, in discussing the power of a Legislature to change the law affecting acquired rights of a banking •company, says: “Where any vested right is taken away, or the obligation of any contract is impaired, the act so far is void. It is beyond the power of the Legislature.” Again he says: “The fundamental maxims of free government seem to require that the rights of personal liberty and private property should be held sacred.” He further says: “The people in this country understand very well that there is no power in the Legislature to take from them 'that which they own. * * * It can not admit of question that, where the remedy is entirely taken away, the obligation is impaired,” &c. 8 S. and M. 56.
In the case of Fletcher v. Peck, 6 Cranch, 127, the "United States Supreme Court, in discussing the power of the State of Georgia to annul a contract made by her Legislature, by a subsequent act, declaring the contract fraudulent and against good policy, says: “It may well be doubted whether the nature of society and of government does not prescribe some limits to legislative power, and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation ?”
The court further says: “The validity of this rescinding act then might well be doubted were Georgia a single sovereign power, but Georgia can not be viewed as a single, unconnected sovereign power, on whose Legislature no other restrictions are imposed than may be found in its own Constitution. She is a part of a large empire. She is a member of the American Union, and thatUuion has a Constitution, the supremacy of which all acknowledge and which imposes limits to the Legislatures of the several States, which none claim a right to pass. ” And the court continues: “Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed'with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions; on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.”
Herein the distinguished jurist, and the highest court of the nation, declare that the people, in adopting the Constitution of the United States, intended to shield themselves and their property from the strong passions that might control a State, and held that those rights vested by contract were above the power of a State.
If those wise men had well founded fears of the force of passion in a State, might we not well expect to see some of its ebullitions upon the close of a desolating war? Was there ever a time when feeling was more likely to control, or when men were nearer excusable for crossing the bounds of propriety ?
Constitutional limitations, as will readily be inferred from the language used in all the cases above referred to, are not, as has been argued before the court, confined to acts of State legislatures alone, but are applicable to the acts of the State in Convention.
In the case of Oliver Lee & Co.’s Bank, the High Court of Appeals for the State of New York, says : “We have seen that the Supreme Court of the United States has held that a State constitutional provision, acting prejudicially upon a contract, is a law passed by a State impairing its obligation within the intention of the Federal Constitution. This is upon the ground that the substance of the provision is, that the State shall not interfere in any way with the rights which citizens, have acquired by contract.”
We refer to the case of Dodge v. Woolsey, 18 How., 331, wherein the Supreme Court of the United States says: “ The departments of the Government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all -rightfully done by either is binding upon the others. Thé Constitution is supreme over all of them, because the people, who ratified it, have made it so. Consequently, any thing which may be done unauthorized by it, is unlawful, but it is so to the extent of its delegated powers over all who made themselves parties to it, States as well as persons, within those concessions of sovereign powers yielded by the people of the States when they accepted the Constitution in their conventions. Nor does its supremacy end there. It is supreme over the people of the United States, aggregately and in their separate sovereignties. * * * The people, in ratification of it, have chosen to add, this Constitution * * * shall be the supreme law of the land, and the judges of every State shall be bound thereby; * * * and to make its supremacy more complete, impressive and practical» * * * all executive and judicial officers ■ * * * shall be bound by an oath to support this Constitution. * * * It is claimed by counsel that a new Constitution of a State supersedes every legislative enactment touching its own internal policy, and bearing upon the interests of persons, which may have been the subject of legislation under a preceding Constitution. * * * That all such legislation must give way when found to contravene the will of the sovereign people subsequently expressed in a new State Constitution. * * * A change of Constitution can not release a State from a contract-made under a Constitution which permits it to be made. The inquiry is, is the contract permitted by the existing Constitution? If so, and that can not be denied in this case, the sovereignty which ratified it in 1802 was the same sovereignty' which made the Constitution of 1851, neither having more power than the other to impair a cóntract made by the State Legislature with individuals.’’
Is this extract not a conclusive answer to the strongest objection against Denton’s recovery. It was claimed by counsel before that court that a new Constitution supersedes former laws, and must control the State’s internal affairs — her courts, her persons and property — that it is the sovereign will, and must be obeyed. But that court said not so. "Where contracts existed under a former State Constitution, they must be observed. Apply the principle to this case. Was Denton’s contract in 1860 permitted by the Constitution of 1836? If so, and that can not be denied, the sovereignty which made the Constitution of 1836 is-equal to the sovereignty that made the Constitution of 1868, neither having the power to impair a contract.
Has not every principle in this case been adjudged by the highest court in the Government ? That court, upon the most mature consideration, have decided, in several cases, that a State Constitution impairing the obligation of a contract is inoperative, being in conflict with the United States Constitution. See Piqua Branch Bank v. Knoop, 16 How., 369; Dodge v. Woolsey, 18 ib., 331; Mechanics’ &c. Bank v. Debalt, 18 ib., 380; same v. Thomas, 18 ib., 384; Jefferson Branch Bank v. Skelly, 1 Black, 442; Franklin Branch Bank v. State of Ohio, 1 ib., 474; Cummings v. State of Missouri, 4 Wallace, 277.
In these cases, the decision depended upon the power of the sovereign people of Ohio and Missouri, in convention, to impair existing obligations; and that court uniformly held that such power did not exist.
In the case of Cummings v. The State of Missouri, 4 Wallace, 325, that court says: “ The theory upon which our institutions rest, is that all men have certain inalienable rights. * * * It (the Constitution) intended that the rights of the citizen should be "secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be avoided by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.
As a further answer to the argument that the State courts. can not assume jurisdiction and give judgment, we may say it is not disputed that the inferior courts had original and this court appellate jurisdiction, in actions of debt upon contracts, where the consideration was for slaves or other property, before the adoption of the Constitution of 1868; in which, referring to courts below, the Supreme Court, section 5, article 7, declares that “the inferior courts of the State, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as they noto possess” &e. The only exception in the least affecting this case, is in section 14, article 15, above quoted. Now, if this section is inoperative because it is repugnant to the Constitution of the.United States, the Constitution of 1868 stands exactly as if that section had never been inserted in it. That being true, under the clauses of general jurisdiction, the courts of the States have all requisite power to hear and determine such suits. And, to the assertion that we can not declare a clause in our State Constitution void, we need only say, the Supreme Court of the United States has decided differently. In the case of Cummings against the State of Missouri, a direct attack was made upon Missouri’s Constitution. That court decided that the Supreme Court of the State of Missouri erred because it did not declare a provision in the Constitution of its own State void.
In the several cases last referred to, the United States Supreme Court held that the Supreme Courts of the States committed error because they did not declare their State Constitutions void, in so far as they had passed acts impairing the obligation of contracts. State, like national courts, must first obey the fundamental law of the Government.
Then it is necessarily right, according to the opinion of the Supreme Court of the United States, that, wherein our State Constitution declares a valid contract null and void, we decide it to that extent contrary to the Constitution of the United States, and not binding upon the courts and people of the State.
It therefore follows that, in our opinion, the court below did not err in sustaining the demurrer of the appellee to the appellant’s three several pleas. The judgment of that court is affirmed.