It cannot be said that “the obligation,” which the constitution designed to protect, was any arbitrary “obligation,” that was unknown at the time the constitution was established, but that was to be created, and made known afterward; for then this provision of the constitution could have had no effect, until such arbitrary “obligation” should have been created, and made known. And as it gives us no information as to how, or by whom, this arbitrary “obligation” was to be created, or what the obligation itself was to be, or how it could ever be known to be the one that was intended to be protected, the provision itself becomes a mere nullity, having no effect to protect any “obligation” at all.
It would be a manifest and utter absurdity to say that the constitution intended to protect any “obligation” whatever, unless it be presumed to have intended some particular “obligation,” that was known at the time; for that would be equivalent to saying that the constitution intended to establish a law, of which no man could know the meaning.
But this is not all.
The right of property is a natural right. The only real right of property, that is known to mankind, is the natural right. Men have also a natural right to convey their natural rights of property from one person to another. And there is no means known to mankind, by which this natural right of property can be transferred, or conveyed, by one man to another, except by such contracts as are naturally obligatory; that is, naturally capable of conveying and binding the right of property.
All contracts whatsoever, that are naturally capable, competent, and sufficient to convey, transfer, and bind the natural right of property, are naturally obligatory; and really and truly do convey, transfer, and bind such rights of property as they purport to convey, transfer, and bind.
All the other modes, by which one man has ever attempted to acquire the property of another, have been thefts, robberies, and frauds. But these, of course, have never conveyed any real rights of property.
To make any contract binding, obligatory, and effectual for conveying and transferring rights of property, these three conditions only are essential, viz., 1, That it be entered into by parties, who are mentally competent to make reasonable contracts. 2. That the contract be a purely voluntary one: that is, that it be entered into without either force or fraud on either side. 3. That the right of property, which the contract purports to convey, be such an one as is naturally capable of being conveyed, or transferred, by one man to another.
Subject to these conditions, all contracts whatsoever, for conveying rights of property—that is, for buying and selling, borrowing and lending, giving and receiving property—are naturally obligatory, and bind such rights of property as they purport to convey.
Subject to these conditions, all contracts, for the conveyance of rights of property, are recognized as valid, all over the world, by both civilized and savage man, except in those particular cases where governments arbitrarily and tyrannically prohibit, alter, or invalidate them.
This natural “obligation of contracts” must necessarily be presumed to be the one, and the only one, which the constitution forbids to be impaired, by any State law whatever, if we are to presume that the constitution was intended for the maintenance of justice, or men’s natural rights.
On the other hand, if the constitution be presumed not to protect this natural “obligation of contracts,” we know not what other “obligation” it did intend to protect. It mentions no other, describes no other, gives us no hint of any other; and nobody can give us the least information as to what other “obligation of contracts” was intended.
It could not have been any “obligation” which the State lawmakers might arbitrarily create, and annex to all contracts; for this is what no lawmakers have ever attempted to do. And it would be the height of absurdity to suppose they ever will invent any one “obligation,” and attach it to all contracts. They have only attempted either to annul, or impair, the natural “obligation” of particular contracts; or, in particular cases, to substitute other “obligations” of their own invention. And this is the most they will ever attempt to do.
Section XIX.
Assuming it now to be proved that the “obligation of contracts,” which the States are forbidden to “impair,” is the natural “obligation”; and that, constitutionally speaking, this provision secures, to all the people of the United States, the right to enter into, and have the benefit of, all contracts whatsoever, that have that one natural “obligation,” let us look at some of the more important of those State laws that have either impaired that obligation, or prohibited the exercise of that right.
1. That law, in all the States, by which any, or all, the contracts of persons, under twenty-one years of age, are either invalidated, or forbidden to be entered into.
The mental capacity of a person to make reasonable contracts, is the only criterion, by which to determine his legal capacity to make obligatory contracts. And his mental capacity to make reasonable contracts is certainly not to be determined by the fact that he is, or is not, twenty-one years of age. There would be just as much sense in saying that it was to be determined by his height, or his weight, as there is in saying that it should be determined by his age.
Nearly all persons, male and female, are mentally competent to make reasonable contracts, long before they are twenty-one years of age. And as soon as they are mentally competent to make reasonable contracts, they have the same natural right to make them, that they ever can have. And their contracts have the same natural “obligation” that they ever can have.
If a person’s mental capacity to make reasonable contracts be drawn in question, that is a question of fact, to be ascertained by the same tribunal that is to ascertain all the other facts involved in the case. It certainly is not to be determined by any arbitrary legislation, that shall deprive any one of his natural right to make contracts.
2. All the State laws, that do now forbid, or that have heretofore forbidden, married women to make any or all contracts, that they are, or were, mentally competent to make reasonably, are violations of their natural right to make their own contracts.
A married woman has the same natural right to acquire and hold property, and to make all contracts that she is mentally competent to make reasonably, as has a married man, or any other man. And any law invalidating her contracts, or forbidding her to enter into contracts, on the ground of her being married, are not only absurd and outrageous in themselves, but are also as plainly violations of that provision of the constitution, which forbids any State to pass any law impairing the natural obligation of contracts, as would be laws invalidating or prohibiting similar contracts by married men.
3. All those State laws, commonly called acts of incorporation, by which a certain number of persons are licensed to contract debts, without having their individual properties held liable to pay them, are laws impairing the natural obligation of their contracts.
On natural principles of law and reason, these persons are simply partners; and their private properties, like those of any other partners, should be held liable for their partnership debts. Like any other partners, they take the profits of their business, if there be any profits. And they are naturally bound to take all the risks of their business, as in the case of any other business. For a law to say that, if they make any profits, they may put them all into their own pockets, but that, if they make a loss, they may throw it upon their creditors, is an absurdity and an outrage. Such a law is plainly a law impairing the natural obligation of their contracts.
4. All State