dissenting, says:
I have been unable to arrive at the conclusions reached by a •majority of the court, and shall now proceed to give the reasons which have led to a dissent:
The writings obligatory sued on, as appears from the record, were given for the purchase of negro slaves. In March, 1868, the people of the State of Arkansas adopted the present Constitution, which was submitted to the Congress of the United States, and by that body approved in June of the same year.
In the Constitution alluded to there is a provision prohibiting slavery or involuntary servitude. There is also another clause, containing three separate and independent declarations, two of which may fall without affecting the other. The clause to which I allude declares: First. That all contracts for the sale or purchase of slaves are null and void. Second. That no court of this State shall take cognizance of any suit founded on ■such contracts. Third. That no amount shall 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.
The object of the first declaration was to destroy the right of property in all slave contracts. The object of the second declaration was to deprive the State courts of the power to hear •and determine any cause wherein the amount sought to be recovered was for the purchase of slaves — no matter whether the contract was. entered into without or within the State. The object of the third declaration was to not only destroy the right of property in a judgment that had already been obtained upon slave contracts, but to destroy the right of property in such judgments as might be rendered between the adoption of the Constitution by the people and the admission of the State by Congress.
. Whether any of these objects were laudable, is a question that I conceive this court has no power to determine. The second declaration is that: “ No court of this State shall take cognizance of any suit founded on such (slave) contracts;” and to the force and effect of this language I shall confine the present discussion; and, in order to determine the authority and power of the State courts, it may not be amiss to inquire from whom and from what source the courts of this State derive the authority to hear and determine causes ? If it appears from the examination that the courts exist without any action on the part of and independent of. the people who constitute the sovereignty of the State, then it will be admitted that the constitutional provision under consideration is an unwarranted act of usurpation on the part of the people toward a sovereign judiciary. But, on the other hand, if we should find that the authority under which we act is delegated, and not a sovereign authority, then I conceive that the Constitution should be the rüle and guide of our action.
In Rhode Island v. Massachusetts (12 Peters, 657) it was held that “ the Supreme Court of the "United States exists by virtue of a direct grant of power from the' people,” and that “ it exercises its authority as their agent for the purposes specified.” This, I conceive, to be the true status of the judiciary of every State of the Union — that is, that the courts, like the Legislature, exist by virtue of a direct grant of power by the people. "When we are called upon to pass on the question as to whether the executive or legislative branches of the Government had authority to perform ail act questioned, we at once turn to the Constitution for the purpose of ascertaining whether they have gone beyond the scope of their authority; if, then, -we would turn to the Constitution to ascertain the measure of their authority, why not turn to it to ascertain the measure of our own authority ?
Justice "Washington, in Ogden v. Saunders, (12 Wheat., 280,) says: “Every judiciary in the Union.owes its existence to some legislative act.” The Supreme Court of the United States, in Prigg v. Pennsylvania, (16 Peters, 614,) said that: “ Every State is perfectly competent, and has the exclusive right, to prescribe remedies in its own judicial tribunals ; to limit the time, as well as the mode of redress, and to deny their jurisdiction over cases which its own policy or its own Constitution either prohibit or discountenance.” Now, the same power that provided this court should consist of five judges, has declared that no court of this State shall take cognizance of any suit founded on a note given for slaves; and if the Constitution is the supreme law of the land, upon all subjects upon which it speaks, from what clause do we derive authority to say that one clause is binding and that another is not ?
The majority of the court, in reply to this question, point me to the second subdivision of article six of the Constitution of the United States, which declares: “ This Constitution, and the laws of the United States which shall be made in pursuance thereof, * * * 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.”
In reply to this, I say this is not the Constitution which authorizes us to adjudicate upon the rights of parties; in reply, I state that this Constitution is not our commission to act as judges in the State of Arkansas, and that no member of this court .derives any authority or power of a judicial character from the Constitution of the United States. In the language of the Supreme Court of New Hampshire, I say that “ Congress is nowhere authorized to employ, nor are the States any where prohibited from denying, the use of their judicial tribunals, to carry into execution the laws of Congress;” and that the right of regulating the State tribunal is one of the powers not delegated to the .United States by the Constitution, but reserved to the States or people respectively, under the tenth article of the amendments to that instrument.
I am admonished that we have each taken an oath to support the Constitution of the United States, and to acknowledge that instrument as the supreme law of the land. Admitting and conceding all this, I am still unable to see wherein that clause confers any jurisdiction upon the State courts.- A justice of the peace is a judicial officer, and takes the same oath that the members of this court do, but nobody ever dreamed that he derived any power or áuthority to hear and determine cases, or that his jurisdiction was enlarged or restricted by any other authority or power than the Constitution and laws of the State, whose officer he is. I concede that in protecting the rights of parties, or in the enforcement of a contract, the subject matter of which would be cognizable before a justice of the peace, that the rights of the parties would have to be measured by the Constitution of the United States, and the laws made in pursuance thereof; but, in a class of cases where by the law of the State they had no jurisdiction to enter a judgment at all, I emphatically deny that article VI. of the Constitution of the United States,- no matter what his oath may have been, or how often taken, would authorize him to take jurisdiction of a class of contracts expressly withheld from judicial cognizance by either the laws or Constitution of the State. And this is the principle applicable to this court. If the clause denying the courts jurisdiction in this class of contracts had not been inserted in. the Constitution of the State, then the question before this court would have been whether the people, in their sovereign capacity, could destroy the right of property in notes and - judgments, ’the consideration of which was the sale or purchase of slaves; but such is not the question now presented. The question is: 'Will this court assume jurisdiction of a class of cases the people have declared they shall not ? I have examined the writings and opinions of learned and eminent jurists, as to the construction to be placed on the section now under consideration, and, isolated and alone, this ease stands as the only authority that points to article VI. of the Constitution of the United States as the fountain from which the State'courts derive the power to hear and determine cases. ' -
"What is a court ? Bouvier says it is “a body in the government to which the public administration of justice is delegated.” Now, mark well what he says : “A body in the government to which the public administration of justice is delegated.” Is not this court a creature of the Constitution ? Does it not owe its existence to the Constitution ? Is not its jurisdiction limited by the Constitution ? Are not its members chosen in the manner pointed out by the Constitution ? If these questions be answered in the affirmative, it strikes me, that an assumption of power or authority in violation of its provisions, ought to be corrected by a court of impeachment.
What is a constitution ? It is a form of government delineated by the mighty hand of the people; it is that by which the powers of government are limited; it is to the departments of government what law is to individuals ; it is not only a rule of action to the different branches of government, but it is that from which their existence flows. If, then, there be any form of words which should be held sacred, it is the plain language of the fundamental law. No matter how cogent the reasoning may be — no matter how great the wrong complained of — the courts should be governed by the principles of law, and not by the hardship of any particular ease. The courts are creatures of organized society; they are created to perform the duties assigned them by the sovereign power. It is peculiarly the province of the Legislature to provide the remedies for the redress of wrongs and the enforcement of civil and natural rights. It is the duty of the courts to apply these remedies — but the Constitution nowhere authorizes this court to provide remedies or administer justice in cases where the people have prohibited the different branches of government from enforcing contracts which are against the declared policy of the State. If written constitutions can be invaded by one branch of the government, the experiment of setting a boundary to power will have proved a failure. In Purdy v. The People, 4 Hill, 384, the court said that “in construing the language of the Constitution, the courts liave nothing to do with the argument from inconvenience — their sole duty is to declare ita lex scripta est — thus saith the Constitution.”
Blackstone, or perhaps it may have been Stephens, says that “ law is a rule of civil conduct, prescribed by the Supreme power of the State.” This may be -a good definition of the word lato in England, but it does not strike me as being perfectly accurate when applied to this country. In the United States, not only the General Government, but the different State Governments all have written constitutions which place restrictions on the law-making power; therefore, strictly speaking, law is the will of the Legislature, in its derivative and subordinate capacity. The Constitution is the law governing and operating upon the judicial, executive-and legislative branches of the Government; while the will of the Legislature is the law that operates upon the great mass of the people. I have briefly referred to this distinction' between the Constitution and a law to the end that it may. not be. forgotten that the people do not derive their rights from the Constitution, but that it is the people from whom this court derives all authority to act. The English subject derives his rights from a kind of mythological document, known as the British Constitution, but the American citizen draws his rights from no such source. Instead of 'writing on parchment what rights he is entitled to, he shortens the task and limits the power of government.
It is urged that the clause of the Constitution (sec. 14, art. 15) now under consideration, denying jurisdiction to the courts of the State, in cases where the consideration was slaves, impairs the obligation, because the citizen is left without a remedy or tribunal to enforce his contract. It will be borne in mind that this court not only draws its- sustenance from the Constitution, but that it is a creature of that instrument. It will also be borne in mind that the judicial powers created by the Constitution of the United States can only be vested in the courts created by that Constitution, and the acts of Congress, and that the State courts derive no authority or power from either of these sources. Tliia'court, in a case in which it has jurisdiction, has the power to declare a law passed by the Legislature in conflict with the Constitution of the State, or the United States; but it does not follow from this, that it is the forum in which to determine what a sovereign people may do, even though private rights may have been invaded.
The point of divergence between the majority of the court and myself is, that they insist that the remedy, or rather the law affording a remedy, at the time the contract was made, enters into and becomes a part of the contract, while I contend that the law does not enter into the contract, but operates upon it in just such a manner as the sovereign" or law-making power may deem expedient. In other words, that the enforcement of contracts is a matter wholly within the control of the sovereignty of the State, and over which there exists no supervisory power, so long as there is, no attempt to discharge the debtor xoithout ■ payment. In support of their position, they quote from the opinion of Justice Baldwin, in McCracken v. Hayward, which says: “The obligation of a contract consists in its binding foi’ce on the party who makes it. This depends on the laws in existence when it was xnade; these are necessarily referred to in all contracts, and form a part of them,” &c. Again, they quote from the case of Blain v. Williams, 4 Littell, 38, wherein the court said : “The legal obligation of a contract evidently consists in the rexnedy to enforce it.” Again, they quote from the case of the Commercial Bank of Natchez v. Chambers, 8 Smeed and Marsh., 56, wherein Judge Sharkey says : “It can not admit of a doubt that where the remedy is entirely takexi away, the obligation is impaired.”
In response to these authorities, and the arguments made in support of them, I shall content myself by referring to and quoting from the opinions of the learned judges who presided at the hearing, in the Supreme Court of the United States, in the case of Ogden v. Saunders, 12 Wheat., 282. Justice Johnson, in that case, said: “The Constitution was framed for society, and an advanced state of society, in which I will undertake to say that all the contracts of men receive a relative and not a positive interpretation; for the rights of all must be held and enjoyed in subserviency to the good of the whole. The State construes them, the State applies them, and the State decides how far the social exercise of the rights they give us over each other can be justly asserted.” He further states, that “ when men enter into an organized state of society, the remedy for the enforcement of their contracts is no longer retained in their own hands, but surrendered to the community — to a power competent to do justice, and bound to discharge toward them the acknowledged duties of government to society according to the received principles of equal justice.” Again her says: “I must not be understood as reasoning upon the assumption that the remedy is grafted into the contract; for, if the remedy enters into the contract, then the States lose all power to alter their laws for the administration of justice.” Again he says: “The Constitution pledges the States to every creditor for the full and fair exercise of State power to the ends of justice. It is very true, that inconveniences may occasionally grow out of irregularities in the administration of justice by the States. But the citizen of the same State is referred to his influence over his own institutions for his security; and the citizens of the other States have the institutions and powers of the General Government to resort to. And this is all the security the Constitution ever intended to hold out against the undue exercise of the power of the States over their contracts and their ovm jurisprudence." Again he says: “ But it is not only in their execution laws that the creditor has been left to the justice and honor of the States for his security;” and he continues by saying: “Every judiciary in the Union owes its existence to some legislative act; what is to prevent a repeal of that act? What is to prevent the extension of the right to imparl, of the^time to plead, of the 'interval between the sittings of the State courts ? Where is the remedy against all this ? Why were not these powers taken also from the States, if they could not be trusted with the subordinate and incidental power here denied them ? . The truth is, the Convention saw all this,- aiid #saw the impossibility of providing an adequate remedy for such mischiefs, if it was not to be found in the wisdom and virtue of State rulers.” Continuing in this course of reasoning, he concludes by saying that: “The right of the creditor to the aid of the public arm for the recovery of contracts, is not absolute and unlimited, but may be modified by the necessity or policy of society.”
Justice Trimble in the same ease, says: “Men have by the laws of nature the right of acquiring and possessing property» and the right of contracting engagements; that, in a state of nature, when men have not submitted themselves to the controlling authority of civil government, the natural obligation of contracts is coextensive with the duty of performance. But when men form a social compact, and organize a civil government, they necessarily surrender the regulation and control of these natural rights and obligations into the hands of the government.” Again he says : “ It has often been said that the laws of a State, in which a contract is made, .enter into and make a part of the contract;” and, in reply to this proposition, he says: “ The argument is destitute of truth.” Again ‘he says: “The contract is nothing but the agreement of the parties; and that if the parties, in making their agreement, use the same words with the same object in view, where there is no law, or where the law recognizes the agreement, and furnishes remedies for its enforcement, or where the law forbids, or withholds all remedy for the enforcement of the agreement, it is the same contract in all these predicaments.” Again he continues, by saying: “Admit that men derive the right of private property and of contracting engagements from the principles of natural or universal law; admit that these rights are not derived from or created by society, but are brought into it; * * * yet it is equally ti-ue that these rights and obligations, resulting from them, are subject to be regulated, modified and sometimes absolutely restrained by the positive enactions of municipal law. If the positive lato of the State declares the contract shall have no obligation, it can have no obligation. This doctrine has been held and, maintained by all States and nations; and the power of controlling, modifying and even of talcing away all obligation from such contracts, has been exercised by all independent sovereigns.”
Chief Justice Marshall, in the same ease, speaking for himself and Justices Story and Duvall, says: “It is insisted that the law enters into the contract so completely as to become a constituent part of it. This is unquestionably pressing the argument very far; and the establishment of the principle leads inevitably to consequences which would affect society deeply and seriously. We (speaking for himself and Justices Story and Duvall) have no hesitation in saying that however a law may act upon contracts, it does not enter into them and become a part of the agreement.” Again he says: “The counsel insist that the right to regulate the remedy and to modify the obligation are the same; that obligation• and remedy are identical; that they are synonymous — two words conveying the same idea; that they are precisely commensurate with each other, and are such sympathetic essences that the action of law upon the remedy is immediately felt by the' obligation; that they live, languish and die together.” in reply to this, he says: “The obligation and remedy originate _at different times; that the obligation to perform is coeval with the undertaking to perform; it originates with the contract itself, and operates anterior to the time of performance ;• the remedy acts upon a broken contract and enforces a preexisting obligation; that, when men come into society, they can no longer exercise the original and natural right of coercion; its retention would be incompatible with the general peace, and is therefore surrendered. Society prohibits the use of private individual coercion, and gives in its place a more safe and more certain remedy. But the right to contract is not surrendered with the right to coerce performance. Obligation and remedy, then, are not identical; they originate at different times, and are derived from different sources.” Again he says-:- “We are told that the power of the State over the remedy may be used to the destruction of all beneficial results from the right;” and in answer to the proposition, he says: “The local governments ¿are restrained from impairing the obligation of contracts, but they furnish the remedy to enforce them, and administer that .remedy in tribunals constituted by themselves. To afford remedy is certainly the high duty of those who govern to those who are governed. A failure in the performance of this duty subjects the government to the just reproach of the world, but the Constitution (of the United States) has not undertaken to enforce its performance; its language is the language of restraint, not that of coercion; it prohibits the States from passing any law impairing the obligation of contracts ; it does not enjoin the States-to enforce contracts. Should a State be sufficiently insane to shut up or abolish its courts, and thereby withhold all remedy, would this annihilation of remedy annihilate the obligation of contracts also? Vb know it would not. If the debtor should come within the jurisdiction of any court of another State the remedy would be immediately applied, and the inherent obligation of the ■contract enforced. If that high sense of duty, which men •selected for the government of their fellow-citizens must be •supposed .to feel, furnishes no security against a course of legislation 'which must end in self-destruction; if the solemn •oath taken by every member, to support the Constitution of the United States, furnishes no security against intentional attempts to violate its spirit while evading its letter.” At this point the train of argument is lost, as will be seen by an examination of the case; (12 Wheat., 353;) but enough is presented to convince the mind that the citizens of the States are dependent upon the “sense of honor” of the men whom they have themselves chosen to protect and correct all denial of right or remedy, and failing in this, they must abide the consequences. In the remarks last quoted, it is evident that the Chief Justice was speaking of the power of the Legislature over the remedy; but, in the case now under consideration, the question is not •one of remedy, but of the jurisdiction of the courts; which, as I will show, is a very different question. The Supreme Court of the State of Kentucky, have always held, as I have stated, that “the legal obligation of a contract consists in the remedy given by law to enforce its performanceyet, in the same case in which this holding is made, it was further held that “an act of the Legislature which forbade the rendition in all courts of the State of any judgments for debt from date until January 1,1862, did not impair the' obligation of contracts; that the act did not relate to the remedy, but to the courts which administer the remedy, and that, in a legal sense, the courts constituted no part of the obligation of a contractThe inference to be drawn from this opinion (Johnson v. Higgins, 3 Metcalf, Ky., 566) is that, if the Legislature had attempted to have stayed the judgment, it would have impaired the obligation; but that a mere regulation of the jurisdiction was a matter within the control of the Legislature. In the States of Pennsylvania, Ohio and Illinois, during the late war, laws were passed continuing all actions for the recovery of debts against persons in the Federal army, until their return. In all of those States it was claimed- that the law impaired the obligation of a contract; but the Supreme Courts of those States held, in effect, that the courts were deprived of the power to render judgments until the return of the person of the debtor, and that this exercise of legislative power over the jurisdiction of the courts did not impair the obligation of contracts. In the ease now before us, we are not withheld by a legislative act, but by the solemn agreement of men entering into an organized body of society, wherein was defined the powers withheld from the j udiciary. "When the people adopted this Constitution it was not their intention to create a court with jurisdiction over slave contracts; but it seems that we, who were elected as their servants for one purpose, have now become their servants for another.
"Up to this point I have cited the elaborate opinions of Chief Justice Marshall and Justices Story, Duvall, Trimble and Johnson, upon the points of difference between the majority of the court and myself, while they have produced the opinions of Justice Baldwin, Judge Boyle, of Kentucky, and Judge Sharkey, of Mississippi. And, without attempting to detract from the ability of the latter, I am compelled to say that the reasoning of the former have aided me in coming to my present conclusions.
In quoting from these opinions I have had two objects in view: First. To show that a denial of a remedy, or a tribunal, to a citizen of the State, in no manner impairs or discharges the obligation of a contract, and that the only remedy the citizen has, where a tribunal or remedy is withheld, is by an appeal to the intelligence of the people or sovereignty that withholds the remedy, or, closes its tribunals. ■ The second object was to show that the neglect or refusal to provide a tribunal in this instance was a neglect of a political character, and one that can not be corrected or remedied under any authority — legislative, executive, or judicial — derived from the Constitution of the United States.
The five judges who delivered opinions in the case of Ogden v. Saunders, all agree that the citizen surrenders all right to individually enforce the obligation of the contract to the organized body of society of which he becomes a member. They all agree that the remedy and tribunal in which the contract may be enforced, is left wholly under the control of the State authorities; they all speak in uncomplimentary tei’ms of a State that would close its tribunals to prevent the enforcement of a contract; but, at the same time, they all admit that no judicial tribunal, sittixxg under or by virtue of a State or national Coxxstitutioxx, caxx remedy a wrong committed by a sovex’eign power.
The majority of - the court lay much stress upoix the fact that this clause of our State Constitution, and such action as I have alluded to, destroys private property — a thing in violation of the Constitution of the United'States. I do not propose to be drawn into the discussion of a question that I deem foreign to this case. But if the people of a State, or the United States, had the right to destroy all right of property in slaves without compensation, over that clause of the Constitution of the United States which declares: “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation,” it will be very difficult for the advocates of the thirteenth amendment to answer why the same power, in the same manner, is without authority to destroy all right of property in notes founded upon the sale or purchase of slaves ? I know it has been claimed that the Constitution of the United States was of a kind of magic circle thrown around the institution of slavery and its incidents; that an invasion of this circle would be visited with all the dire effects that would have followed the anathemas of the Church of Nome, but I am not advised that property in a slave note is any more sacred or entitled to a higher or holier protection than the property in slaves.
I have asserted that, in my opinion, the State courts derived no authority or power to hear and determine cases from any •clause of the Constitution of the United States; that they moved, breathed, and derived their existence and sole support from the Constitution of the State. No axiom is more clearly established in law or reason than that, wherever an end is required, the means are authorized; that wherever a general power to do a thing is given, every particular power necessary for doing it is included.
Section 5 of article VII. of the Constitution of this State, declares that “the G-eneral Assembly may provide for the establishment of such inferior courts, changes of jurisdiction, or abolition of existing inferior courts as may be deemed requisite.” It will be observed, from the language of pur Constitution, that the jurisdiction of the inferior courts is left wholly to the discretion of the Legislature. Not- only the jurisdiction of the courts is left to the discretion of the Legislature, but the abolition of existing inferior courts is left to their discretion. In every State in the Union the Legislature has regulated by law the time and place of holding the State courts. The circuit courts of this State are held under the provisions of an act entitled “An act to divide the State into ten judicial circuits and fix tbe time of holding circuit courts.” Suppose the Legislature, at its next session, should repeal this act, and neglect to pass any other act fixing the time of holding circuit courts. I will now suppose that the courts remain thus closed until the statute of limitation has become a bar, not only against these slave contracts, but all other writings obligatory for the payment of money. Will it be contended that there is any power in Congress to open the courts thus closed ? Will it be contended that Congress can regulate the jurisdiction and sittings of the State courts? If Congress can not do these things, will it be pretended that the Supreme Court of the United States can? The majority of the court would answer the question by saying that the repeal of the act fixing the time of holding the courts impaired the obligation of a contract, by depriving the creditor of all remedy; and, being in conflict with the Constitution of the United States, that -the circuit judges would be justified in disregarding the repeal of the law, and fully authorized to hold their courts as before the repeal.
We will now suppose that a court of impeachment was convened, and a circuit judge arraigned for attempting to hold a court under the provisions of a law that had been repealed. Admit that, on the trial before that court, he had produced the opinion of the Supreme Court of the United States, wherein it had declared that the action of the Legislature, in repealing the law regulating the holdings of the circuit courts, impaired the obligation of contracts, and was null and void, by reason of being in conflict with the Constitution of the United States.; but now let us suppose that the court of impeachment should think differently, and refuse to recognize the judgment of the Supreme Court as a good plea in bar, and remove the judge from office, where is the power to reverse this judgment, or reinstate this officer ? ■ There is none; and the fact that there is not, presents the proof that the State authorities have absolute control over the officers and courts of their own creation ;for, in every ease where a power is exercised tinder the provisions of the-Constitution or laws of the United States, its courts and officers are fally authorized and empowered to protect persons acting thereunder, from prosecution instituted by State authority, for the performance of a duty or act authorized by' the Constitution or laws of the United. States.
Justice Johnson says: “It is the ruling principle of the Constitution of the United States to interfere as little as possible between the citizen and his own government, and it is for this reason that the executive, legislative and judicial functions of the State are left as they were before the adoption of the Constitution by the people of the States.” An examination of the Constitution of the United States will disclose the fact that there are very few cases in which the courts created thereby, or thereunder, have jurisdiction between citizens of the same State. This fact alone presents itself to my mind as an intention on the part of the people, who created the General Government, to retain to the States, and the people, the right of controlling their own tribunals in accordance with the declared policy of the State; and any other solution of this question •would have placed the public policy of the State under the absolute control of Congress. I have'stated that, in my opinion, there was no power conferred upon any one of the branches of the General Government to regulate the sittings or jurisdiction of the State courts. In support of that view, I submit that if Congress or the Supreme Court are endowed with this power,, it would be impossible for any action of the State to violate the obligation of a contract, because, if either branch of the General Government has this power or authority, a neglect to exercise it is no proof that the State has impaired the obligation. It will be conceded that, where power or authority is granted in general terms, the compulsory power necessary to carry the grant into execution is an absolute incident. Have either Congress or the Supreme Court the compulsory power to compel a State judge to hold a court in a State, under the provisions of an act repealed by the Legislature, or to hear and determine a case prohibited by the Constitution of the State ? If it be conceded that neither of those branches of government have this compulsory power, then I submit that the concession admits the correctness- of my views, and presents an unanswerable argument in' support of the position that the State is supreme in all things pertaining to the sittings and jurisdiction of her own courts.
The majority of the court, with profound satisfaction,.quote from the opinion of the Supreme Court of the United States in the case of Dodge v. Woolsey, 18 How., 331, where it is said that “ a change of Constitution can not release a State from a contract made under a constitution which permits it to be made, because the same sovereignty that ratified the Constitution of 1802 was the same sovereignty that made the Constitution of 1851, neither having the power to impair the obligation of a contract made by a State Legislature with individuals.” This case is cited,as high authority to show that private contracts made by individuals between themselves, under the Constitution of 1836, can not be destroyed under the provisions of the Constitution of 1868. I submit that the decision establishes no such thing. It merely says that the same sovereignty can not change a contract made with an individual. An examination of the case will show that under the Constitution of Ohio, of 1802, the Legislature incorporated what was known as the “ State Bank of Ohio.” In the act of incorporation which constituted the charter of the bank, as the Legislature had power to do, the rate of taxation to be collected from the bank was fixed at a rate per cent, on the dividends. In 1851, the people of Ohio adopted a new Constitution, wherein a different rule of taxation was fixed upon all capital employed in banking. The banks claimed protection, because the State had stipulated to take a rate per cent, upon the dividends. It was insisted, on the other hand, that the people, in the exercise of the aggregate sovereignty of the State, had established a different rule, and the Supreme Court of the United States, in effect, said : “ By the Constitution of 1802, you clothed your Legislature with full power and authority to make this agreement with the bank ; the men who did this thing were of your own selection, and you will not now be allowed to ignore a contract which you gave your agents full power to enter into.” The contract in this case, however, is not made by the State on the one side and an individual or individuals on the other. It was an agreement entered into between individuals under the provisions of a Constitution that was destroyed by force and violence; and, when this body of unorganized society was called upon by Congress to form an organic law for their government, they solemnly declared slave eozitracts to be null and void, and pi’ohibited the courts created by the Cozzstitutiozz from exercising jurisdiction over them, as I am of opizrion they had a perfect right to do. It will be borne in mind that the political branch of the Government of the United States, whose duty it is to guarantee to every State izi the Union a republicazi form of government, had declared that zio legal governniezit existed izi the State of -Arkansas. This being true, I submit, that the people who constituted the sovereignty that adopted the Constitution of 1886, were nothing more or less than a disorganized state of society; and, being so, had a pez’fect right to prescribe the terms and' conditions upozi which they would enter a government republicazi in form, subject however, to the approval of Congress.
Look but for a moment to the condition of the people at the time Congress asked them to leave a disorganized state of society, and you behold that one-half of the taxable property of the State had been destroyed in the suppression of the rebellion; you beholdalarge proportion of the citizensof the State depi'ived of their former means of wealth by the emancipation of their slaves; you behold these same citizens indebted largely for the purchase of slaves that had been liberated long before their labor had approximated to any thizig like the cousideratiozi to be paid therefor. Under all the circumstances equity, justice and honor would seem to say, a people thus situate, without aziy legal government, azid who had, as yet, received little or zio consideration for the ziotes they had given for slaves, on their return to organized society ought to be allowed to settle upon a basis that would be just to all under the circumstances then existing.
But waiving the question, for the present, as to whether the people who adopted the Constitution of 1868 are the same sovereignty as those who adopted the Constitution of 1886,1 will proceed to inquire if a State may not destroy the right of property in a contract without impairing its obligation. The majority of the court say that it can not be done; that a State is prohibited by the national Constitution from taking private property without making just compensation. The reverse of this proposition has so often been decided by the Supreme Court of the United States that I am compelled to express some astonishment at the assertion. In 7 Peters, 247; 5 How., 411; 6 How., 507; and 20 How., 84, the question as to whether any restraint was placed on the States in relation to taking private property, with or without compensation, was fully presented to the court, and the uniform holding has been that the words “ nor • shouKL private property be taken for public use without just compensation,” was “ intended to prevent the Government of the United States from taking private property, and was not intended asa restraint upon the State Government.” Proceeding from this point on the theory that so long as the action of the States do not impair the obligation of contracts they are independent of the national Government, the question then arises, can a State destroy the right of property in a contract, without impairing its obligation ? The majority of the court say it can not; and, in so doing, they take issue with the decisions of the Supreme Court of the United States. In The West River Bridge Company v. Dix, et al., 6 How., 507, it -appears that the Legislature of Vermont chartered to that company the exclusive privilege of erecting and continuing a toll bridge over "West river for a period of forty years. That this charter was as much property and contract as the note of Jacoway to Denton, I presume will not be denied; yet the Legislature of Vermont rendered that charter valueless, and appropriated the property of the company, and the Supreme Court of tlie United States held that, in so doing, the obligation of the contract had not been impaired. In the case just cited, the toll bridge of the company was taken for public use, and it was alleged, before the Supreme Court „of the United States, that the Constitution of the State declared that a just compensation should .be made for all private property seized and dedicated to public use, and that such compensation had not been made. In reply to this proposition the court said they had no power to correct evils of that nature; that it was a matter wholly within the control of the State authorities.
Under every established government the tenure of property is derived mediately or immediately from the sovereign power of the political body ; it can rest on no other foundation, and can have no other guarantee. Every contract is made in subordination to the higher authority of the law of nature, or nations, or of the community to which the parties belong, and must yield to their control; such a condition, is the right of eminent domain. The exercise of this right of eminent domain does not operate to impair the contract; it is only the resumption of an investure that the parties to the contract knew belonged to the sovereignty of which they were members. The tenure of property in the slave was derived from the same authority that recognized the tenure of property in the note of Jacoway to Denton. In the light of property they drew life from the same fountain. Justice Daniels says the language and meaning of the constitutional inhibition, that States shall not pass laws impairing the obligation of contracts, was “ designed to embrace proceedings attempting the interpolation of some new term or condition, foreign to the original agreement.” The declaring these slave contracts “ null and void,” is not the “ interpolation of any new term or condition ;” it is the resumption of an investure, and the exercise of a power that the people, as a sovereignty, deemed commensurate with the public necessity. It • may be said that “ public necessity” did not require this; and, in reply, I say that this tribunal is not the judge of that fact. The power that si^s behind us, the sovereignty of which we are servants, have decided the question of “public policy,” and, in my opinion, there is no tribunal authorized to sit in judgment, or review their action. ,
I am aware that the stay and insolvent laws (of a retrospective character) of many of the States have been held to impair the obligation of contracts; but these rulings have al^ been placed ■ on the ground that “ a new condition had been interpolated ” into the terms of the contract. In these cases, the sovereignty of the State had not declared the contract a nullity; but, on the contrary, the validity of the contract was recognized, and the legislative action directed toward discharging the debtor without full payment, or to extending the time for payment.- In this case the contract itself is declared to be “ null and void,” and its enforcement against the public policy of the State. When the people of Arkansas were forming a government for themselves, they had a perfect right to provide that the Legislature should neither pass laws or organize courts to enforce the collection of debts due by one citizen to another, and there is no power in the national Government to compel them to. In the formation of the government, so far as related to themselves, they had an unquestioned right to declare that a note, the consideration of which was a slave, should not be considered an element of propery, within the sovereignty. A denial of this right to the people of Arkansas is an admission that the power is in Congress, or the Supreme Court of the United States, to declare of what things property shall consist in the different States of the Union — a power that neither branch of the national Government ever claimed or attempted to exercise. A declaration that these contracts are “ null and void ” of course can not affect the validity of slave contracts held by the citizens of other States against the citizens of this State, nor has any attempt been made in that direction. It is true that we have closed our courts against the citizens of other States, in relation to the enforcement of slave contracts; but, in doing so, no obligation of their contracts have been impaired. The Federal courts are open to them, and the inhibition placed on our courts, and the declaration of nullity has no application either to their contracts or the manner of enforcing them. The slave contract, held by the citizen of another State, is property within that State, and I concede that no action of the people of Arkansas could destroy the tenure of property therein; but, at the same time, contend that, as to the citizens of Arkansas, there is neither force or virtue in these slave contracts. They have consented that all such contracts are “ null and void.”
The majority of the court say, 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.” And, in support of this statement, they declare that “ the Supreme Court of the United States decided that the Supreme Court of Missouri erred because it did not declare a- provision of its own Constitution void.” An examination of the opinion, in the case referred to, (Cummings v. The State of Missouri, 4 Wall., 332,) will show that the principle announced must have been drawn from some other source than that cited, for there is no such doctrine laid down in that case. The court, in the case referred to, held that the second article of the Constitution of the State of Missouri, depriving priests and clergymen of the right to preach or tqaeh, is in violation of the provision of the Federal Constitution prohibiting States from passing an ex post facto law. In the-case now before the court, Denton’s right of property in the note was not attempted to be destroyed because of any participation, in the rebellion, or for any crime, as was the case in Cummings v. The State of Missouri. In that case the Constitution and laws of Missouri required priests and clergymen to take a certain oath, within sixty days, and if they did not, and still persisted in preaching, the individual so offending was to be imprisoned; and, under this state of affairs, Cummings was imprisoned, and from this imprisonment he was discharged by the Supreme Court of the United States. In the case now before the court, the parties were forming a government from a disorganized state of society, in which., by an upheaving of the rebellion, more than one-half of the wealth of the State had been destroyed, and in this reorganization, and under such circumstances, will it be contended that the people could not commence the new structure on the hard pan of equal and exact justice? This question, as to the power of the people to say, upon entering an organized body of society, of what property shall consist, and what subjects may be brought before the tribunals of their own creation, has never been settled by any court. The power of a State Legislature has received judicial construction, and its powers have been adjudged to have a limit; not so, however, with the power of the people as to questions of policy that only affect the citizens of the same sovereignty. In conclusion, I will state that this is the first and only instance, wherein the highest court of a State has held a provision of the Constitution of a State void, in order to extend its jurisdiction. In my opinion, a decent respect to the opinions and feelings of the people of the State, demanded that, if their Constitution was to be declared null and void by any tribunal, it was due to them that the task be left to other hands than ours. For the reasons here presented, I am of opinion that this court has no jurisdiction in this case. •
The manuscript opinion having been mislaid, accounts for its non-appearance here. ' Reporter. Judge Bowen dissented from the conclusions of the majority of the court, upon the ground that it was against public policy to enforce contracts for the sale of slaves.