Surely it is not because they do not know that all men have a natural right to make their own contracts; for they know that, as well as they know that all men have a natural right to live, to breathe, to move, to speak, to hear, to see, or to do anything whatever for the support of their lives, or the promotion of their happiness.
Why, then, is it, that they strike down this right, without ceremony, and without compunction, whenever they are commanded to do so by the lawmakers? It is because, and solely because, they are so servile, slavish, degraded, and corrupt, as to act habitually on the principle, that justice and men’s natural rights are matters of no importance, in comparison with the commands of the impudent and tyrannical lawmakers, on whom they are dependent for their offices and their salaries. It is because, and solely because, they, like the judges under all other irresponsible and tyrannical governments, are part and parcel of a conspiracy for robbing and enslaving the great body of the people, to gratify the luxury and pride of a few. It is because, and solely because, they do not recognize our governments, State or national, as institutions designed simply to maintain justice, or to protect all men in the enjoyment of all their natural rights; but only as institutions designed to accomplish such objects as irresponsible cabals of lawmakers may agree upon.
In proof of all this, I give the following.
Previous to 1824, two cases had come up from the State courts, to the Supreme Court of the United States, involving the question whether a State law, invalidating some particular contract, came within the constitutional prohibition of “any law impairing the obligation of contracts.”
One of these cases was that of Fletcher vs. Peck, (6 Cranch 87), in the year 1810. In this case the court held simply that a grant of land, once made by the legislature of Georgia, could not be rescinded by a subsequent legislature.
But no general definition of “the obligation of contracts” was given.
Again, in the year 1819, in the case of Dartmouth College vs. Woodward (4 Wheaton 518), the court held that a charter, granted to Dartmouth College, by the king of England, before the Revolution, was a contract; and that a law of New Hampshire, annulling, or materially altering, the charter, without the consent of the trustees, was a “law impairing the obligation” of that contract.
But, in this case, as in that of Fletcher vs. Peck, the court gave no general definition of “the obligation of contracts.”
But in the year 1824, and again in 1827, in the case of Ogden vs. Saunders (12 Wheaton 213) the question was, whether an insolvent law of the State of New York, which discharged a debtor from a debt, contracted after the passage of the law, or, as the courts would say, “contracted under the law”—on his giving up his property to be distributed among his creditors—was a “law impairing the obligation of contracts?”
To the correct decision of this case, it seemed indispensable that the court should give a comprehensive, precise, and universal definition of “the obligation of contracts”; one by which it might forever after be known what was, and what was not, that “obligation of contracts,” which the State governments were forbidden to “impair” by “any law” whatever.
The cause was heard at two terms, that of 1824, and that of 1827.
It was argued by Webster, Wheaton, Wirt, Clay, Livingston, Ogden, Jones, Sampson, and Haines; nine in all. Their arguments were so voluminous that they could not be reported at length. Only summaries of them are given. But these summaries occupy thirty-eight pages in the reports.
The judges, at that time, were seven, viz., Marshall, Washington, Johnson, Duvall, Story, Thompson, and Trimble.
The judges gave five different opinions; occupying one hundred pages of the reports.
But no one definition of “the obligation of contracts” could be agreed on; not even by a majority.
Here, then, sixteen lawyers and judges—many of them among the most eminent the country has ever had—were called upon to give their opinions upon a question of the highest importance to all men’s natural rights, to all the interests of civilized society, and to the very existence of civilization itself; a question, upon the answer to which depended the real validity, or invalidity, of every contract that ever was made, or ever will be made, between man and man. And yet, by their disagreements, they all virtually acknowledged that they did not know what “the obligation of contracts” was!
But this was not all. Although they could not agree as to what “the obligation of contracts” was, they did all agree that it could be nothing which the State lawmakers could not prohibit and abolish, by laws passed before the contracts were made. That is to say, they all agreed that the State lawmakers had absolute power to prohibit all contracts whatsoever, for buying and selling, borrowing and lending, giving and receiving, property; and that, whenever they did prohibit any particular contract, or class of contracts, all such contracts, thereafter made, could have no “obligation”!
They said this, be it noted, not of contracts that were naturally and intrinsically criminal and void, but of contracts that were naturally and intrinsically as just, and lawful, and useful, and necessary, as any that men ever enter into; and that had as perfect a natural, intrinsic, inherent “obligation,” as any of those contracts, by which the traffic of society is carried on, or by which men ever buy and sell, borrow and lend, give and receive, property, of and to each other.
Not one of these sixteen lawyers and judges took the ground that the constitution, in forbidding any State to “pass any law impairing the obligation of contracts,” intended to protect, against the arbitrary legislation of the States, the only true, real, and natural “obligation of contracts,” or the right of the people to enter into all really just, and naturally obligatory contracts.
Is it possible to conceive of a more shameful exhibition, or confession, of the servility, the baseness, or the utter degradation, of both bar and bench, than their refusal to say one word in favor of justice, liberty, men’s natural rights, or the natural, and only real, “obligation” of their contracts?
And yet, from that day to this—a period of sixty years, save one—neither bar nor bench, so far as I know, have ever uttered one syllable in vindication of men’s natural right to make their own contracts, or to have the only true, real, natural, inherent, intrinsic “obligation” of their contracts respected by lawmakers or courts.
Can any further proof be needed that all ideas of justice and men’s natural rights are absolutely banished from the minds of lawmakers, and from so-called courts of justice? or that absolute and irresponsible lawmaking has usurped their place?
Or can any further proof be needed, of the utter worthlessness of all the constitutions, which these lawmakers and judges swear to support, and profess to be governed by?
Section XVIII.
If, now, it be asked, what is this constitutional “obligation of contracts,” which the States are forbidden to impair, the answer is, that it is, and necessarily must be, the natural obligation; or that obligation, which contracts have, on principles of natural law, and natural justice, as distinguished from any arbitrary or unjust obligation, which lawmakers may assume to create, and attach to contracts.
This natural obligation is the only one “obligation,” which all obligatory contracts can be said to have. It is the only inherent “obligation,” that any contract can be said to have. It is recognized all over the world—at least as far as it is known—as the one only true obligation, that any, or all, contracts can have. And, so far as it is known—it is held valid all over the world, except in those exceptional cases, where arbitrary and tyrannical governments have assumed to annul it, or substitute some other in its stead.
The constitution assumes that this one “obligation of contracts,”