State v. Carew

. The opinion of the Court was delivered by

Dtjnkin, C. J.
On 21 December, 1861, the Legislature of South Carolina passed an Act entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at public sales.”

By the first section it is provided that “ it shall not be lawful for any officer of this State to serve or execute any mesne or final process of any of the Courts of this State for the collection of money, until after the expiration of the first session of the next General Assembly of this State, except in the cases hereinafter specially provided.” This Act was renewed in February and December, 1863 ; again in December, 1864; and in December, 1865, it was continued in force until the adjournment of the next regular' session of the General Assembly. But, by the second section of the last-mentioned Act, it was declared that nothing therein contained should be construed to apply to any causes of action which might thereafter originate; nor should any debtor be entitled to the benefit of the Act who should fail, on three months’ previous notice, to pay his creditor, on or before 1st December, 1866, one-tenth of the aggregate amount *507due at the time of demand; and, on such failure, the creditor was authorized to proceed to judgment and execution, but that no execution should be enforced for more than one-tenth, as aforesaid, during the continuance of the Act. Similar provision was made in regard to any debtor on final process at the time subsisting.

The case first entitled is that of a rule on the Sheriff to show cause why he had failed to serve the writ. The second case was a motion, on behalf of the defendant, to set aside the service of the writ. The cause shown by the Sheriff was, that the original cause of action was a money bond, executed in February, 1860, and he relied on the prohibition in the Acts above recited as the justification of his refusal to serve the process. The cause of action in the second case was a due bill, payable on demand, in 1860.

The rule against the Sheriff was discharged, and the service of the writ in the latter case was set aside by order of the Circuit Court.

An appeal was taken, ppon the following ground:

Because the Act of December, 1861, entitled “An Act to extend relief to debtors and to prevent the sacrifice of property at public sales,” as also the Act of 21st December, 1865, entitled “ An Act to amend the law known as the Stay Law,” impair the obligation of contracts existing at the time of the passage of said Act, are repugnant to the Constitution of the United States and of this State, and are unconstitutional and void.

The cases were transferred from the Court of Appeals to the Court of Errors, as the highest tribunal in the State, for final adjudication.

By Section 10, Article 1, Constitution United States, passed 17th September, 1787, it is declared that “no State shall enter into any treaty, alliance or confederation, grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post-facto law, or law impairing the obligation of contracts.” So, in the Constitution of the State *508of South Carolina, adopted 3d June, 1190, Section 2, Article 9, it is declared, “nor shall any bill of attainder, ex post-facto law, or law impairing the obligation of contracts, ever be passed by the Legislature of this State.” A prohibition in the same terms is adopted in the Constitution of this State of September, 1865. (Article 9, Section 2.) It is necessary to determine what is “the obligation of a contract” as a preliminary to the inquiry, whether it has been impaired by State legislation. The distinction between the contract itself and the obligation is thus stated in Sturges vs. Crowninshield, (4 Wheat. 197 :) “A contract is an agreement by which a party undertakes to do or not to do a particular thing. The law binds him to perform his engagement, and this is the obligation of the contract.” In the argument of that cause, Mr. Hunter remarked that “the Judges of the State Courts and of this Court have confessed that there is, in these words — ‘ impairing the obligation of contracts ’ — an inherent obscurity. They are not taken from the English common law, or used as a classical or technical term of our jurisprudence in any book of authority. Were thejr furnished from that great treasury and reservoir of rational jurisprudence, the Roman law ? We are inclined to believe this. The tradition is that Mr. Justice Wilson, who was a member of the Convention, and a Scottish lawyer, and learned in the civil law, was the author of the phrase.” Whatever may be the correctness of the tradition, the term “ obligation ” is certainly recognized familiarly by the Roman jurists as denoting the legal tie which imposes a necessity of doing, or abstaining from, a particular act, as distinguished from the imperfect obligation arising from gratitude, charity, or other moral duties, binding upon conscience, -but having- no legal remedy for their enforcement. This latter is the essence of the legal obligation. Sub hac condilione, si volam, nulla fit obligatio. (Corpus Juris, Book 44, Chapter T, Lex. 8.) According to the Roman law, where the right of action is destroyed, the legal obligation ceases to exist. Gum nulla subest causa constat non posse constituí obligationem. (Corpus Juris, Book 2, Chapter 14, L. I, § 2-4 de pactis.)

In Ogden vs. Saunders, 12 Wheat. 213, it i's said, “the obliga*509tion. of a contract, as spoken of in the Constitution, is a legal, not a mere moral obligation; it is the law which binds the party to perforin his undertaking. The obligation does not inhere or subsist in the contract itself proprio vigore, but in the law applicable to the contract; and this law is not the universal law of nations, but it is the law of the State where the contract is made. Any law which enlarges, abridges, or in any manner changes the intention of the parties resulting from the stipulations in the contract, necessarily impairs it.” Adverting to these principles, Mr. Justice Trimble, who acted with the majority of the Court, thus expresses himself: “The great principle intended to be established by the Constitution was the inviolability of the obligation of contracts as the obligation existed, and was recognized by the laws in force at the time the contracts were made.” “ Whether the law professes to apply to the contract itself, or to regulate the remedy, it is equally within the true meaning of the Constitution, if it, in effect, impairs the obligation of existing contracts. I do not mean to say that every alteration of the existing remedies would impair the obligation of contracts; but I do say, wdth great confidence, that a law taking away all remedy from existing contracts would be manifestly a law impairing the obligation of contracts. On the other hand, a great variety of instances may readily be imagined in which the Legislature of a State might alter, modify or repeal existing remedies, and enact others in their stead, without the slightest ground for a supposition that the new law impaired the obligation of contracts. If there be intermediate cases of a more doubtful character, it will be time enough to decide them when they arise.” In Mather vs. Bush, 16 John. R. 233, Chief Justice Spencer commented on the case of Sturges vs. Crowninshield, then recently decided. He said he bowed to the supremacy of the Supreme Court of the United States upon the point actually decided, Viz., the limited power of a State Legislature to pass bankrupt laws.- But in reference to the distinction taken between “a case impairing the obligation of a contract and operating directly upon it, and a law affecting or modifying the remedy upon the contract, and that the latter is under the control of the *510legislative power of a State,” lie proceeds thus: “And, although we may not feel the full for'ce of the distinction, it does not become us to analyze the opinion, or to reason upon it any farther than to observe that the remedy is essential, in many cases, to the contract; and to modify it, so as to frustrate the contract or render it less valuable, must have the indirect effect to impair its obligation.” The criticism of this distinguished jurist, thus respectfully intimated in 1819, has been vindicated by time and experience; and the manifest impracticability of preserving inviolate the obligation of the contract, and recognizing at the same time an uncontrolled power of State legislation ovár the remedy, thus pointed out by Chief Justice Spencer, has been felt and recognized by text writers as well as judicial authorities for the last forty years..

Chancellor Kent says: “To deny any remedy under a contract, or by burdening the remedy with new conditions and restrictions to make it useless or hardly worth pursuing, is equally a violation of the Constitution.” Again : “The better doctrine is, that all effectual remedies affecting the interests and rights of the owner, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor’s right, and ought not to be disturbed. All suspensions by statute of remedies, existing when the contract was made, is more or less impairing its obligation.” (1 Kent Com. 419.)

Mr. Justice Story uses this language: “When we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are denied, the obligation of a contract is understood to be impaired, though it may not be completely annihilated.” (Story Const. § 1381.)

Mr. Sedgwick says: “Looking at a contract legally and practically as an instrument by which rights of property are created, and on which they repose, obligation and remedy are strictly convertible terms. Take away the whole remedy, and it is admitted the contract is gone. And it seems the only logical rule to hold,-that any legislation which materially diminishes the remedy given by the law to the creditor at the time his contract *511is made, just so far impairs the obligation of the contract.’’ (Stat. and Const. Law, p. 652.)

The alleged distinction between the right and the remedy was pressed upon the Court in Green vs. Biddle, 8 Wheat. 381. It was a case twice elaborately argued, and well considered. Mr. Justice Washington, speaking for the Court, says : “A right to land includes the right to enter upon it — to recover possession where withheld.” Again: “Nothingcan beráore clear upon the principles of law and reason than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, or which clogs his recovery of such possession by conditions and restrictions tending to diminish the value of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist, but it is impaired and rendered insecure, according to the nature and extent of such restrictions.” Twenty years afterwards, these principles came under review before the same Court, in Bronson vs. Kinzie, 1 How. 311. This latter case arose under what was called “the valuation law” of the State of Illinois. The opinion was delivered by Chief Justice Taney. He says: “ Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract. But, if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case, it is prohibited by the Constitution.” He then adverts to the case of Green and Biddle, and repeats the emphatic language there used by the Court: “ It is no answer that the Acts of Kentucky, now in question, are regulations of the remedy and not of the right to the lands.” “If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they directly overturned his rights and interests.” “ We concur entirely,” adds the Chief Justice, “in the correctness of the rule *512above stated. It is difficult, perhaps, to draw a line that would be applicable to all cases between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing.” He then cites the authority of Mr. Justice Blackstone : “ The remedial part of the law is so necessary a consequence of the declaratory and directory parts, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law.” (1 Black. Com. 55.) “It is that part of the municipal law,” (the remedial part,) continues the Chief Justice, “ which protects the right, and the obligation by which it enforces and maintains it. It is this protection which the clause in the Constitution now in question mainly intended to secure. And it would be unjust to the memory of the distinguished men who framed it, to suppose that it was designed to protect a mere barren and abstract right, without any practical operation upon the business of life. It was undoubtedly adopted as a part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout the Union, by placing them under the protection of the Constitution of the United States. And it would but ill become this Court, under any circumstances, to depart from the plain meaning of the word used, and to sanction a distinction between the right and the remedy, which would render this provision illusive and nugatory, mere words of form, affording no protection, and producing no practical result.” He then applies these principles : “ The mortgagee is entitled to the aid of this Court; for this purpose it is his absolute and undoubted right, under an ordinary mortgage deed, if the money is not paid at the appointed day, to go into the Oburt of Chancery and obtain *513an order for the sale, &e. This is his right by the law of the contract; and it is the duty of the Court to maintain and enforce it without any unreasonable delay.” “ When this contract was made, no statute had been passed by the State changing the rules of law or equity in relation to a contract of this kind.” “ They were the laws of Illinois at the time; and, therefore, entered into the contract, and formed a part of it, without any express stipulation to that effect in the deed; and any subse- • quent law, impairing the rights . thus acquired, impairs the obligation which the contract imposed.” He then comments upon the Act of Illinois of February, 1841: “ The observations already made (sa_ys he) in relation to the other Act, apply with equal force to this. It is true that this law apparently acts upon the remedy, and not directly upon the contract. Yet, its effect is to deprive the party of his pre-existing right to' foreclose, etc.”

In the following year the same subject was discussed in McCracken vs. Hayward, 2 How. 609. The opinion of the Supreme Court was delivered by Mr. Justice Baldwin. “ The obligation of a contract (says he) consists in its binding force on the party who makes it. This depends on the laws 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 the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party to the injury of the other; hence, any law which, in its operation, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution. This principle is so clearly stated and fully settled *514in Bronson vs. Kinzie, that nothing remains to be added to the reasoning of the Court, or requires a reference to any other authority than as therein referred to.” Alluding to the particular case under consideration, “the obligation of the contract between the parties in this case (says Judge Baldwin) was to perform the promises and undertakings contained therein ; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions.” “Any subsequent law which denies, obstructs, or impairs this right, by superadding a condition to the sale, &c., affects the obligation of the contract, for it can be enforced only by a sale of the defendant’s property, and the prevention of such sale is the denial of a right. The same power in a State Legislature maybe carried to any extent, if it exists at all.” “ If the power can be exercised to any extent, its exercise must be a matter of uncontrollable discretion, in passing laws relating to the remedy which are regardless of the effect on the right of the plaintiff. This -was the ruling principle of the case of Bronson vs. Kinzie.” The law of Illinois, prohibiting a sale under execution for less than two-thirds of the appraised value, was held to be unconstitutional and void.

In Planters’ Bank vs. Sharp, 6 How. 301, and again in Curran vs. State of Arkansas, 15 How. 319, these principles were reaffirmed. In the former case, Mr. Justice Woodbury says: “ One of the tests that a contract has been impaired is, that its value has, by legislation,- been diminished. It is not, by the prohibition of the Constitution, to be impaired at all. This is not a question of degree, or manner, or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.” (P. 321.) In the latter case (15 How.) the doctrine is well condensed by Mr. Justice Curtis: “ It by no means follows, because a law affects only the remedy, that it does not impair *515the obligation of ,a contract. The obligation of a contract, in the sense in which these words are used in the Constitution, is that duty of performing it which is recognized and enforced by the laws; and if the law is so changed that the means of enforcing this duty are materially impaired, the obligation of the contract no longer remains the same.”

This last case was decided A. D. 1853; and so lately as December, 1864, in Hawthorne vs. Calif, 2 Wallace, 10, the Supreme Court of the United States, by Mr. Justice Nelson, took occasion to recognize and re-afflrm “the principle decided in Bronson vs. Kinzie, and the several subsequent cases of this class;” and held that the Acts then under consideration so seriously affected the remedy of the mortgagee as to impair the obligation of the mortgage contract within the meaning of the Constitution, and declared them void.

It would seem superfluous to add that this series of decisions by the Supreme Court of the United States is conclusive upon this tribunal in settling the. construction of the Constitution upon this subject.

But we are not left without the light of instruction from the adjudications of our sister States, During the war of 1812, when the people of our country were greatly harassed in their affairs, the Legislature of North Carolina passed an Act staying execution upon judgments until the first term of the Court after February, 1814, upon the defendant giving security, &c. The Supreme Court of North Carolina held the law to be null and void, as violating the prohibition of the Constitution against impairing the obligation of contracts. (Crittenden vs. Jones, 1 Car. Law Rep. 385.) That case came under review before the same tribunal in the case of Barnes vs. Barnes, decided June and August term, 1861. The opinion of the Court was announced by Chief Justice Pearson: “ The plea (says he) claiming for the defendants the benefit of what is commonly called the Stay Law, presents for our decision the question of the constitutionality of an Act of the last session of the General Assembly, entitled ‘ An Act to provide against the sacrifice of property, and to suspend proceedings in- certain cases.' Our province is *516to give judgment on the question of the constitutional power of the Legislature to pass the statute. In the discharge of this doty, we are relieved by the fact that a question of such importance is not now presented for the first time, so as to put upon us the responsibility of making a decision on the strength of our own convictions ; for we find that the line has been plainly marked, in fact, ‘blazed out,’by many previous adjudications, so that it can be easily followed; and all we have to do is to make an application of well-established principles.” “ Our opinion is, that the statute under consideration, so far as it opposes the right of the plaintiff to a judgment in the Court below, or the motion for a judgment in this Court, and for execution, is void and of no effect, because it is in violation of the Constitution of the United States, &c. 1st. It is patent, by the face of the statute, that it does impair the obligation of contracts. This is settled in Jones vs. Crittenden, 1 Car. Law J. 385. In that case, the argument is exhausted, and we only add, we concur in it.”

Lapsley vs. Brashears is a case from Kentucky, 4 Litt. Rep. 49. The' Legislature had authorized a stay of execution on judgments obtained prior to the Act, for one year, upon the defendant’s giving bond to replevy, &c. The Court declared the Act null and void, as violating the prohibition of the Constitution. The opinion of Mr. Justice Owsley, speaking for the Court, is instructive: “But (says he) in a state of civil government, contracts may derive an additional obligation — an obligation which arises from the civil laws of the government, and which, but for the limitations contained in the Constitution, might have been impaired and totally annihilated by the Legislatures of the States. This obligation operates through- the medium of the sanction of the law, and consists emphatically in those remedies which the law supplies, and may be denominated the legal obligation.” “ The Act of the Legislature is in conflict with that provision of the Constitution of the United States which forbids any State from passing a law impairing the obligation of contracts.” “By the Act in question, it is true the obligation of the defendant’s prior contract has not been entirely *517destroyed.” “But duiing the time of the replevin, which is allowed, by the Act, all pre-existing remedies upon the prior contract are suspended, and the obligation of the contract thereby weakened and impaired. To be in conflict with the Constitution it is not necessary that the Act of the Legislature should import an actual destruction of the obligation of the contract; it is sufficient if the Act imports an impairment of the obligation. If, by the legislative Act, the obligation of the contract be in any degree impaired, or, what is the same thing, if the obligation be weakened or rendered less operative, the Constitution is violated and the Act so far inoperative.”

In the State of Mississippi, the doctrine is thus stated in Briscoe vs. Anketell, 28 Miss. R. 371: “ It is too well settled to admit of question at the present day, that it is within the power of the State Legislature to regulate the remedy and modes of proceeding in relation to past as well as to future contracts. This power is subject only to the restriction that it cannot be exercised so as to take away all remedy upon the contract, or to impose upon its enforcement new burdens and restrictions which materially impair the value and benefit of the contract.”

But the case of Coffman vs. Bank of Kentucky is a recent decision of the Supreme Court of Mississippi. The Legislature of Mississippi had passed Acts, in 1861 and 1865, not unlike those passed in the same years by the General Assembly of South Carolina. By the Act of 1865, all laws for the collection of debts, &c., were suspended until 1st January, 1868. Chief Justice Handy delivered the judgment of the Court. After admitting in the most ample terms the general authority of State legislation in regard to the remedy for the enforcement of contracts, and vindicating this authority as sanctioned by previous adjudications — “but (continued he) this power of the Legislature over remedies is not without restriction, and any legislation which impairs the value and benefit of the contract, though professing to act upon the remedy, must impair the right intended to be secured by the contract, and come within the evil intended to be prohibited by the Constitution. For, though the particular remedy existing at the time of making the contract *518is not an essential part of it, yet no contract would be of any value without a remedy to enforce it. Its obligation would be nugatory, if all remedy to enforce it were taken away, and it would be impaired, if the remedy were obstructed and rendered impracticable. The remedy is, therefore, an incident to the contract, and though the party may have no right, under the contract, to any particular remedy, yet he has a right, at all times, to some adequate and available remedy to enforce it, and that is manifestly within the contemplation of the contract. Hence, it has been held generally by Courts and jurists of the highest authority in this country that Acts of the Legislature, preventing all legal remedies on contracts, or so changing and obstructing them as materially to impair the value and benefit of the contract as it existed when made, are violations of the contract, and within the prohibitions of the Constitution of the United States.” Subsequently analyzing the provisions of the Act of 1865, the Chief Justice says: “It is urged that it is within the legitimate powers of the Legislature, because it appertains to the remedy. But is that its true character ?” “ It does not attempt to make any new regulations in relation to the prosecution of suits then pending, or any proceedings to be hád therein, but absolutely prevents all proceedings in such suits for more than two years. Instead of modifying the remedies existing for the cause of action specified, or providing- any new remedies thereon, it takes away all'remedies, and closes the Courts upon all remedies upon them for a period exceeding two years. This can with no propriety be classed or justified as legislation regulating remedies, but is in effect a denial of all remedy for the time specified. It is, therefore, clearly within the principles above stated, and comes within the prohibition of the Constitution of the United States.”

While preparing this opinion, a Montgomery newspaper furnishes the report of a decision made a few days since by the Supreme Court of Alabama. Ex parte G. F. Pollard and ex parte M. L. Woods.

It appears that in Alabama, as in South Carolina, the Circuit Courts are held at an interval of about six months. By the *519former practice in Alabama, under the regulations of a law, as in South Carolina for half a century past, no judgment is regularly entered against the defendant until the second term. He was thus entitled to what may be called an imparlance. But by the code adopted in Alabama in 1853, the proceedings were expedited and judgment might be rendered at the first or return term. The law so continued until February, 1866, rrhen the Legislature passed an Act “to regulate judicial proceedings.” By one of the provisions, a defendant became entitled to what may be termed a second imparlance, and judgment would be entered at six or twelve months, according to the service of the writ. By another provision, after judgment, the execution might be superseded by what is called “ a suggestion of irregularity.” The Supreme Court consists of a Chief' Justice and two associates. All united in holding the law unconstitutional and void, so far as it stayed or hindered the collection of money under the judgments rendered. But the two associate Justices thought the other provision strictly a regulation of the remedy ; that, as the Code of 1853 had taken away the imparlance without any impeachment of its constitutionality, so the Act of 1866, which gave a second imparlahce, might be sustained in the same view. Mr. Justice Byrd, however, who concurred in this respect with his associate, took the occasion to express his condemnation of "Stay Laws.” “The Act in question (says he) is said to be of that class. It is not so styled, by the General Assembly in the Act; and, being a co-ordinate branch of the government, it is proper to attribute to its action the best motives and objects that could be reasonably presumed;” and agrees with his associate that it was merely a regulation of the proceedings. Chief Justice Walker, in a very elaborate judgment, pronounced the entire Act a violation of the Constitution. He said that the first provision was manifestly “ a mere plan for the delay and postponement of the performance of contracts, and not an adjustment of the machinery of the Courts to the attainment of a fair trial, or to the security of j ustice. ” “ I can perceive (adds he) no ground upon which the convictions of the Legislature as to the welfare of the State or *520the necessities of the people can enlarge their authority to interfere, through the manipulation of the remedy, with the obligation of contracts.”

It is manifest that the judgment of the Alabama Court forms no exception to the unbroken current of decisions. But surely no “ doubtful interpretation ” can be alleged against the legislation of South Carolina upon this subject. The General Assembly said what they meant. It is their habit to do so. They call things by their right names. The Act of 1861 is entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at public sales.” The subsequent annual enactments are entitled “An Act to continue in force” (the Act of 1861.) " But the Act of 1865 anticipates any misconception, andis entitled “An Act to amend the law known as the Stay Law.” In the case first stated (the State vs. Carew) the obligation of the bond required the obligor to pay to the obligee $1,011 on the 1st February, 1861. The A°t of December, 1861, precludes the creditor from any legal remedy whatever to enforce his demand for twelve months. This prohibition is renewed and continued by successive enactments until December, 1865, when the law was so altered as to allow the creditor, after three months’ previous notice to the debtor, to demand payment of one-tenth of his debt on the 1st December, 1866 ; and, on non-payment, he was allowed to obtain judgment and enforce the same for one-tenth of his debt, and no more. The plain, open, and avowed purpose of the General Assembly was not the regulation of judicial proceedings, but a modification or amelioration of the obligation of the parties — “to extend relief to debtors” — “to prevent the sacrifice of property at public sale” — to amend the “ Stay Law.” By the manifest and necessary effect of the legislation, the creditor is reduced to the condition in which (as has been elsewhere said) “his rights live but in grace, and his remedies in entreaty only.”

It may be that in great emergencies, in periods of general embarrassment, this extraordinary power of interfering for the relief of the citizen ought to have been reserved to the State Legislatures.

*521It remains only to inquire whether this particular matter was not fully considered by the framers of the Constitution. When Luther Martin, a delegate from Maryland, returned to his constituents, he was opposed to several provisions of the Constitution which had been adopted, and thus expresses his dissatisfaction with the clause prohibiting the States from passing any law impairing the obligation of contracts: “I considered (said Mr. Martin) that there might be times of great public calamity and distress, and of such extensive scarcity of specie, as would render it the duty of the government, for the preservation of even the most valuable part of its citizens, in some measure to interfere in their favor by passing laws totalljq or partially, stopping Courts of justice, or authorizing the debtor to pay by instalments, or by delivering up his property to his creditors at a valuation, &c. Such times have been and may again arrive. I therefore voted against depriving the States of this power.’’ (1 Elliott’s Deb. 316.)

Mr. Madison, in the introduction of his report of the debates on the Federal Constitution, describing the condition of things which led to the assembling of sucha Convention, says: “In the internal administration of the States, a violation of contracts had become familiar in the form, of depreciated paper made a legal tender, of property substituted for money, of instalment laws, and of the occlusion of Courts of justice, although evident that all such interferences affected the right of other States, • relatively creditors, as well as citizens creditors within the States.” (Madison Papers, p. 120, 5 Ell. Deb.)

General Davie, of North Carolina, returning from the Convention, congratulated his constituents on the adoption of this prohibition of the Constitution. That, hereafter, a sister State could not again do what they had heretofore done — “make Pine Barren Acts to discharge their debts; declare that our citizens shall be paid in sterile, inarable lands, at an extravagant price; pass instalment laws, procrastinating the payment of debts due from their citizens for years.” “ It is essential (said he) to the interests of agriculture and commerce that the hands of the State should be bound from making paper money, Instalment Laws, *522and Pine Barren Acts.” “ That section is the best in the Constitution. It is founded in the strongest principles of justice. It is a section, in short, which I thought would have endeared the Constitution to this country.” (4 Ell. Deb. 15Y, 159, 191.)

Mr. Charles Pinckney, of South Carolina, was a member of the Convention which adopted the Constitution of the United States, in 1Y8Y. He was subsequently a member of the Convention which formed the State Constitution of 1Y90, and is said to have prepared the draft of the Constitution of South Carolina. In the debates of the State Convention, commenting on this clause of the Constitution of the United States, (Article 1, Section 10,) Mr. Pinckney said: “This section I consider as the soul of the Constitution; as containing, in a few words, those restraints upon the States which, while they keep them from interfering with the powers of the Union, will leave them always in a situation to comply with their Federal duties ; will teach them to cultivate the principles of public honor and private honesty, which are the sure road to national character and happiness.” The prohibition was reiterated in the State Constitution then adopted: “Nor shall any law impairing the obligation of contracts ever be passed by the Legislature of this State.” (Article 9, Section 2.)

The venerable Chancellor DeSaussure had walked with those who fought in the Revolution, and with those Avho framed the •Federal Constitution. The following is his note to Glaze vs. Drayton, (1 Des. R. 110:) “The Legislature, in consideration ■of the distressed state of the country after the war, had passed .an Act prohibiting the immediate recovery of debts, and fixing «certain periods for the payment of debts far beyond the periods fixed by the contract of the parties. These interferences with private contracts became very numerous with most of the State Legislatures, even after the distress arising from the Avar had ceased in a great degree. They produced distrust and irritation throughout the community to such an extent that new troubles were apprehended; and nothing contributed more to prepare the public mind for giving up a portion of the State sovereignty, *523and adopting an efficient national government, than these abuses of power by the State Legislatures.”

In a similar strain, Mr, Justice Colcoclr speaks in Alexander vs. Gibson, 1 N. & McC. Rep. 186, (A. D. 1819:) “In giving construction to this part of the Constitution, it is necessary to take a view of the state of things which existed at the time of its adoption, and of the particular Acts which had been passed by many of the States during the struggle for our independence. From the difficulties which had arisen during the war, it was found to be impossible for debtors to satisfy the demands of their creditors. The value of property was diminished. There was little circulating medium in the country. And hence had originated ‘Pine Barren Acts,’ ‘Instalment Laws,’ and other Acts of similar character, impairing the obligation of contracts, and thereby destroying credit. Many of these laws were then-in operation, and to guard against the continuance of them was the avowed object of this clause in the Constitution.”

Such was the contemporaneous testimony; such has been the uniform tradition of the country. Laws of the character of those under consideration were precisely those against which the prohibition of the Constitution was directed. Perhaps our forefathers miscarried in judgment, and Luther Martin was right. But he failed to convince his constituents. The people of the several States acted with their eyes open. They set one thing over against another, and the counsels of General Davie, and Mr. Madison, and Mr. Pinckney, prevailed over the counsels of Mr. Martin and other distinguished patriots. They ratified the prohibition of the Constitution. They thus voluntarily submitted to this self-restraint, and determined to protect their representatives in the State Legislature from the perils of temptation. If there has been any authoritative adjudication, since the adoption of the Constitution, sustaining the validity of “ Instalment Laws ” or “ Stay Laws,” it escaped the research of the learned counsel who argued this cause, and has not been brought to the notice of the Court,

In Lindsay vs. Commissioners, 2 Bay, 61, Judge Waties uses this language: “It was painful to him to be obliged to question *524the exercise of any legislative power. In exercising this high authority, the Judges claim no judicial supremacy; thejr are only the administrators of the public will. If an Act of the Legislature is held void, it is not because the Judges have any control over the legislative power, but because the Act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in an3^ law. As the Act under consideration was repugnant to this high will, he was bound to say that it ought not to have any operation. ”

In the judgment of this Court, the provisions of the Acts of 1861 and 1865, which interdict the service of mesne process, or the enforcement of final process, are at variance with the article of the Constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts, and such provisions are, consequently, inoperative and void.

Wardlaw, Glover, Munro, Inqlis, Moses, and Dawkins, J. J., and Carroll, Lesesne, and Johnson, C. C., concurred.

Aldrich, J.,
dissenting., I proceed to give my reasons for dissenting from the opinion of the majority of the Court.

Since the delivery of my opinion in the case made against Mr. Carew, in Charleston, subsequent investigation and reflection, and the able and searching argument to which the question has been subjected, have convinced me of the correctness of my original conclusion, that the remedy is no part of the contract. I do not understand the majority as adopting this broad doctrine, which, nevertheless, is the doctrine of the cases upon which they rety for the support of their decision ; but that, in some way, the remedy mysteriously,'imperceptibly, or logically, infuses itself into the obligation, and thus any interference with the remedy impairs the obligation. How this is done has not been satisfactorily explained to my mind, and I therefore desire to give additional reasons in support of my first judgment.

The difficulty which I encountered on the threshold was how does the remedy, which the law provides to enforce the obligation, impair that obligation, which is the creation of th& parties *525to the contract ? I could not see it then; I cannot see it now ; reflection, reading, and argument, all combined, fail to conduct my mind to that conclusion. I understand how the remedy is an incident to the contract; but, how a law, which simply affects that remedy by preventing service for the present, and which does not touch the contract at all, impairs the obligation, I do not understand.

The State is the sovereign; under the Constitution, the Legislature controls the Court as well as the suitor. — it is the supreme authority, and, although it may “not impair the obligation of contracts,” becáuse the Constitution forbids that, yet, it may regulate the time, the mode and the manner of enforcing contracts. Thus, it may prescribe imprisonment for debt; it may abolish imprisonment for debt; it may prescribe imparlance in suits; it may dispense with imparlance in suits; it may establish separate Courts of law and equity; it may combine the two jurisdictions; it may regulate the time and order of the sittings of the Courts on the different circuits; it may change them at will. All these, in a greater or lesser degree, interfere with the remedy, but I do not see that they impair the obligation. Take an example: as the Southern Circuit is now arranged, Edgefield is the first Court on the circuit, and Orangeburg is the last; there is an interval of six weeks between the meeting of the Edgefield Court and the meeting of the Orangeburg Court. A, a merchant, doing business in Edgefield and Orangeburg, contracts a debt of one thousand dollars, for dry goods, with B, a merchant of Charleston, and orders the goods to be sent to Edgefield; and, on the same day, he contracts another debt of one thousand dollars, for groceries, with C, also a merchant of Charleston, which he orders to be sent to Orangeburg. He makes two “notes for these purchases, on the same day, in October, for the same amount, and payable at nine months. The notes are not paid at maturity, and suit is commenced. In December, after the commencement of the suit, and before judgment, the Legislature changes the arrangement of the circuit, and, instead of Orange-burg being the last Court, it is made the first, and Edgefield the last. Before the expiration of the nine months, A becomes *526embarrassed; if he be pressed, he cannot pay both B and 0, but he can pay either, and he who shall obtain the first judgment will recover his debt. When these debts were made, and when the suits were commenced, all the parties — debtor and creditors — knew, or were supposed to know, the arrangement of the circuits, and the time when the remedy for the enforcement of the contracts could be used. It -was the existing law of the land; but by the change in the law, as regards the circuit, B, who had six weeks the advantage of 0, is postponed, and loses his debt. Does any one maintain that such a change in the times of the sittings of the Courts impairs the obligation of these contracts ? Does any one maintain that such a change in the law would be unconstitutional ? It has been done again and again, without question. And yet if the remedy be a part of, or, in some way, controls the contract, B would have recovered judgment six weeks before C, and saved his debt; whereas by the change he has lost his debt entirely. It may be said, both creditors could have sued to the same Court, in Orangeburg; true, but neither may have suspected the true condition of A ; each may have supposed that he lived in the district to which the goods were sent, and both may have concluded that all that was necessary to secure their respective debts -was to obtain judgment. This example is only used as an illustration. It maybe replied, the creditor has not lost his remedy by the change in the circuit, because he can still sue. And so it may be replied, he has not lost his remedy here, because the Act is limited to the year, and, at the expiration of that time, he may sue. So it may be said of any law which changes the practice of the Courts, or the law of the land, that it impairs the obligation because it interferes with the remedy. Imprisonment for debt was the law of the land, yet that law has been repealed, thus depriving the creditor of a remedy which he had at the making of the contract. I have never heard the constitutionality of that law questioned, although it interferes quite as much with the remedy of the creditor as does this law which simply postpones the collection of his debt. On the contrary, the Courts have maintained its constitutionality. Nor will it do to *527say, these are general laws affecting the arrangement of the circuits and the practice of the Courts, which must ne'cessarily be under the control of the Legislature. The example given above, of the Southern Circuit, only affects that circuit in which A, B, and C, happen to live. And be it always remembered, that we are. not considering a particular case, but a great principle ; and if the Legislature may not pass a law affecting the remedy in one case, because it impairs the obligation, then, in all cases coming within the reason of the rule, must the argument lead to the same conclusion, or the reasoning is false and mischievous.

The confusion arises from confounding the postponement of the remedy with the preventing of all remedy. It is said the Governor of Georgia, a distinguished lawyer, has vetoed a bill of this character passed by the Georgia Legislature, because he considers it unconstitutional. I have seen his message vetoing the bill. Among other objections, he argues, that the Legislature may continue to postpone the collection of debts from year to year, until the end will be repudiation. This is not argument, it is not reason, it is mere assertion. It is a very violent presumption to suppose that a Legislature, which in a time of universal calamity, to afford temporary relief, passes a law for the general good, which is limited in its duration, will continue the law after the exigency has passed away. It is not to be conceived that a body of wise and patriotic men will so deliberately abuse their office and destroy the character of their State. Nor can it be presumed that any people will tamely submit to have the very foundation-stone of society broken up. The sacred and binding obligation of contracts is a principle implanted in the hearts of the American people; it is announced in the Constitution of the United States; it is announced in all the State Constitutions ; and however individuals may seek to avoid their obligations, the public heart beats true to the sentiment, and the law will express the public will. So long as the necessity exists for preventing the sacrifice of property, and for staying the collection of debts, it is fair to presume, the Legislature in its wisdom, and with a due regard to the general welfare, *528will interfere to prevent wide-spread ruin and distress, but no longer.

Again, in this forcible and ingenious argument in support of his position, the Governor contends that the clause in the Constitution, as to impairing the obligation of contracts, means the legal obligation, which he argues is the power to enforce by the aid of the Court. But this is the same error, expressed in different language, to wit: confounding the remedy, which is the act of the Legislature, with the obligation, which is the act of the parties to the contract. Before the judicial power was furnished by society, the obligation to perform the contract was the same as it was after the establishment of the Courts. Society only changed the mode of enforcing it. In a state of nature, men were impelled to a performance of their engagements by a sense of moral obligation — conscience—and by brute force. In a state of society, it was found, that it would be intolerable to permit each man to be the judge in his own case, and to use his strength to enforce the performance, so the Courts were instituted in the place of brute force; but this change of the remedy to enforce did not add to, or detract from, the obligation to perform. It is no part of the contract; it does not infuse itself into it so as to control it; it is simply another mode of enforcing performance, which restrains the strong and prevents oppression, which sustains the weak and prevents imposition.

The argument is: “ the obligation of contracts,” which the Legislature is forbidden to impair by law, means their legal obligation, since no human Legislature could impair their moral obligation. But the legal obligation of contracts consists in their being enforceable by legal process, and, therefore, a law which should altogether take away the legal remedies for the enforcement of contracts would destroy their legal obligation. If, then, the legal obligation of contracts be extinguished by wholly abolishing the remedies for their enforcement, the temporary suspension or withholding of those remedies must necessarily “ impair the legal obligation of contracts.” This seems to be the favorite argument; it is the one used by the honorable Senators, who asked leave to enter on the journal of the Senate *529their reasons for voting against the bill of 1861; it is reproduced and enlarged upon at the bar. I do not know who is entitled to the credit of it, but, in nay humble judgment, it is more S2iecious than solid. The difference is between “ remedy ” and “ obligation.” Do these words have the same meaning, convey the same idea ? It seems to me to be straining the language very hard to say that they do. The great, the good, and the wise men, who framed the Constitution, knew exactly what they wished to ex2oress; every clause in the Constitution proves that. Among them were experienced statesmen, learned philosophers, distinguished lawyers, and ripe scholars ; no set of men on the continent, either before or since, better understood the use of language and the pow'er of words. Now if this be true, would they have used “ obligation ” in the sense of “ remedy ?” Would so important a provision have been left open to misconstruction, when they were framing a clause to meet an existing evil ? Would they not have used the word “ enforcement ” instead of “ obligation,” if they meant the remedy ? It ap2rears to me so plain and conclusive that language is not strong enough to make it more so. What was the evil to be cured ? The States, in consequence of the great distress which so generally prevailed after the war, and the great scarceness of coin, had resorted to various legislative expedients to relieve their citizens. They had emitted bills of credit, they had passed what were called “ Pine Barren Acts,” all for the purpose of relieving the debtor class, of enabling them to meet their contracts with something which they had, else than money, which they did not have, and this paper, this land, was to be received in payment of debts; it was, in effect, a legal tender. To obviate this evil, the Convention-which framed the Constitution made nothing but gold and silver a legal tender, and ordained that the obligation of contracts should not be impaired by making satisfaction in paper or pine barren land, when the obligation was to pay money. Now, when they used the word “ obligation,” if they had intended it in the sense of “remedy,” Washington, Rufus King, Alexander Hamilton, Livingston, Franklin, Governeur Morris, Madison, John Rutledge, and the Pinckneys would have' said so; *530they were too well acquainted with the English language to have used the word in that sense, and too highly impressed with the importance of the subject to have left it to construction; and to say that they did so use it, and did so leave it, is too great a tax upon the understanding. But to prove that these scholars carefully selected, with precision, with scholar-like accuracy, the very words to convey the exact idea, so as to avoid confusion or misconstruction, it is only necessary to refer to the Constitution adopted by the Provisional Congress, at Montgomery, where, after more than eighty years’ experience of the Constitution framed by these men and their compeers, the men who composed that body found it necessary only to change a word, here and there, in the old Constitution, to make more clear that which was, perhaps, sufficiently clear before. If, after this, it be insisted that in the use of the words “impairing the obligation of contracts,” is meant the legal remedy afforded by the Courts, then there is no defining the limit to which judicial construction may extend. The Legislature of Georgia, I am informed, passed the law by the constitutional majority over the Governor’s veto. It does not detract from him to say that the collective wisdom of that body is higher authority than his individual opinion.

Let us pursue this head a little further. Why is it insisted that “the obligation of contracts” means the legal remedy? Simply for the purposes of the argument; without that construction the argument halts, it cannot start. There is nothing in the cotemporaneous history to prove that such was the meaning of the framers of that clause in the Constitution. If so, Chief Justice Marshall would have known it, and surely the natural and critical signification of the words do not convey this idea. It has been so often repeated, and is so pertinaciously,insisted upon, that the mind has become fatigued in combating the assertion. The natural signification of these words is that duty which the contract imposes upon the parties thereto, not those means which the law provides for its enforcement. Men equally conscientious, being parties to a contract, have differed sincerely as to the construction, and will continue so to differ; such is the constitution of the human mind. In all such cases, it is abso*531lutcly necessary to seek the aid of the Courts for authoritative settlement. When that authority pronounces its decision, the matter is ended, and the parties to the contract immediately acquiesce; they being- equally conscientious, there is no necessity for the enforcing power of the Courts. If either party to the contract refuses to yield Ms assent to the decision so announced, then the party so refusing may be compelled to the performance by the executive power of the Court, which follows the judgment, but is by no means a part of the obligation, or necessary to its construction, or its controlling influence. Suppose the Legislature to pass a law, that all contracts of a certain character shall be construed in a uniform way, without regard to the general signification of the words used in framing the contract ? Such a law would come directly within the meaning of the clause, because the construction of every contract must depend upon the words used to convey the idea of the contracting parties, and the rules which the Courts have established for the construction, and- therefore an arbitrary rule of construction would impair the obligation; because it cannot be said that the obligation is not impaired when men contract for money, and the law insists that they shall be satisfied with paper or land. It is that sort of legislation which is provided against, not that legislation which, while it maintains the obligation of the contract in its integrity, for the general welfare withholds for a time the enforcement of the remedy. The legal construction is the obligation; the enforcement of that construction is the remedy. The supreme power may not impair the former; it may control the latter. “Impair the obligation of contracts.-” what does that mean ? The contract is the agreement; the obligation is the thing to be done or not to be done; the impairing is the “ weakening in quantity or quality.” Now I ask, how does the idea of remedy come in here, except by interpolating the word legal ? It is not in the clause, and it is not conveyed by the original signification of the words. The remedy is the means, provided by the lex fori, to enforce when the Courts have given construction. If the Legislature, from policy, with a due regard to the general welfare of the people, shall say, *532this remedy, this means to enforce, shall be withheld for a given time, it does not weaken the obligation either in quantity or quality, for that remains exactly the same as it was before the law. But when the law declares that all contracts of a certain character must be construed in a particular way, without regard to the meaning of the words, or the intention of the parties, or the construction of the Courts, then it is the duty of the Courts to hold that such a laiv is in violation of the Constitution, and is, therefore, void. The whole difficulty arises from the interpolation of the words “legal” and “moral,” before the word obligation; the framers of the Constitution deliberately adopted the clause as it now stands ; but ingenious men, in their anxiety to give a construction which would contract the power of the legislative department, have interpolated this word “ legal ” before the word " obligation,” for the purposes of the argument. If Ave take the clause as it came from the hands 'of its framers, and interpret it fairly, naturally, to arrive at the simple truth, and to determine the exact meaning of the words, I do not see how the mind can arrive at the conclusion that the law we are iioav considering is a violation of the Constitution. Look at the difficulty we are now in, suppose it be held that the law is constitutional as to contracts entered into after the passage of the law. I trust we may be able to reconcile all seeming contradiction, but I fear the logical conclusions will not be very apparent to the popular mind. If it be insisted, however, that the clause can only be correctly interpreted, bj^ interpolating the word “legal” before “obligation,” is there no other meaning to be attached to that phrase, than the suit, or the remedy provided by law — than Avhat is called the “ actionability” of the contract ? It onty goes to prove, that when the mind departs from the true and real meaning of a sentence or form of words, it is obliged to grope all around, inventing nevr meanings for accepted phrases, as well as coining new Avoids.

Whence arises this clamor ? In the first 3rears of the war, man3r of our merchants, under a patriotic impulse, or perhaps because Confederate money Avas cheap, complied promptly with the Act of the Confederate Congress, entitled “An Act for the *533sequestration of the estates, property and effects of alien enemies and for the indemnity of citizens of the Confederate States, and persons aiding the same in the existing war with the United States ;” and, under the provisions of this Act, paid over to the Receivers the debts due by them to their Northern creditors. Since our defeat and failure, these debts have to be paid to the original creditors, and these debtors desire to collect their home debts (which heretofore they have considered a very good investment) in order to restore their credit in the North and to resume business ; hence the clamor against the constitutionality of this law. These very men, although they paid their debts due to the North to the Receiver in Confederate money, could not, many of them, be persuaded to receive, in the same circulating medium, the debts due to themselves by their home debtors. All this class of peoj>le are loud against the constitutionality of the law; hut their consciences were not disturbed about the constitutionality of the Act of the Confederate Congress which enabled them to pay in Confederate money to the Confederate Receiver the debts due by them to their Northern creditors, although, under the law of the State and of the .Confederate States, the only legal tender was gold and silver. Now, without intending to impeach either the wisdom, or the justice, or the constitutionality, of the Act of the Confederate Congress, I may be permitted to say that I know conscientious and patriotic men who thought it was a duty which they owed to their Northern creditors, who had trusted them in good faith, and had extended a credit which enabled them to carry on a prosperous business, to pay the debts thus honestly incurred before the law went into operation. Why did Congress pass this law ? As a war measure and to relieve the people. If the revolution had been successful, it would have been a great relief. But we have failed, and, as we have no power, tiie debts must be paid again, and in a currency much more difficult to he obtained. Not so, however, in the State. Why did the Legislature pass the law we are now considering ? As a war measure and to relieve the people. It is true, we have failed; but the State has still the control of the subject-matter, and because the necessity to relieve *534the people is now greater even than it was when the Act was first passed, it is re-enacted, and because the Legislature has the power, and it is its duty to provide for the general welfare and happiness of the people, and in a time of such general distress and wide-spread ruin to prevent the sacrifice of prop'erty. Again, very many of those who now clamor have been able to make advantageous compromises with their Northern creditors, and I have but little doubt, if they will offer the same terms to their Southern debtors, it will be found that this law is no obstacle in the way of a settlement. It is very well now to Speculate upon the impolicy of the law, and to argue that, but for its passage, the indebtedness of the country would have been greatly decreased. But those who thus argue seem to forget the wild spirit of speculation which prevailed during the war, inducing those who were not in the service, as well as many who were, to engage in the most reckless enterprises. But for this law, as our affairs began to darken, when the wives and children of many of our brave men were being supported by State charity, when corn and all the other necessaries of life were at fabulous prices, instead of forbearing to press their demands, these speculators would have realized their debts, not in Confederate money, but in the land of the absent soldier, whose pay in the field afforded him no surplus for the payment of debts, and whose service in the front afforded him no opportunity to engage in successful speculation ; and be it always remembered that the legal tender in South Carolina is gold and silver coin, and not Confederate or Treasury notes.

Before society was organized, there were no Courts in which to enforce contracts, and yet men engaged in barter, relying upon the moral obligation and their ability to compel a performance. The savage who had corn and wanted skins exchanged his corn to the savage who had skins and wanted corn. Let us suppose that the savage who stood in need of the corn failed to deliver the skins which he had promised to pay for the corn. What was the remedy ? Why, the savage who let him have the corn' took him by the throat and beat him, or went into his wigwam and seized his implements of the chase, his blankets,' *535his trinkets, or any other property that he could find, in satisfaction of his debts, if he was strong enough; if he was not strong enough, he was remediless. Let us suppose, further, that just at the point of time when this primitive mode of enforcing performance is about to be put in practice, the chief should interfere, and say, “Hold your hand; you'must not beat him now, because you will disable him, and he cannot hunt and get the skins to pay yon for your corn; or you must not take his hunting implements and blankets, because that will deprive him of the means which he has to obtain the skins with which to pay you for your corn. If, horvever, he does not hunt and get the skins that he has promised you within a given time, you may beat him and take his property.” Will any one say that this withholding of the natural right to enforce performance, or to obtain satisfaction for the failure to meet the engagement, impairs the obligation? Is not the obligation as strong and binding after the interposition of the chief as it was before? The savage who exchanged the corn was under no obligation to beat; if his neighbor failed to deliver him the stipulated number of skins he had the natural right to beat or to seize property, if he was strong enough, but he was under no obligation to do so. And so with the savage who was to deliver the skins. He was under a moral obligation to deliver skins; but it did not follow that, if he failed, he must be beaten. He ran that risk; that was an incident to the contract, but was no part of it. So with us; the State, the sovereign, says, You have suffered a common calamity ; debtors and creditors have alike been injured. If the creditor be permitted now to enforce his remedy, it cuts off the debtor from all chance of retrieving his broken fortunes. Every thing has been swept away but his land; it is all that remains to him. To sell that and divide it among his creditors will help no one; it will be a mere pittance to them and utter ruin to him, cutting off the last and only chance to recuperate. At this point, the State, the sovereign, comes in, and wisely, beneficently, constitutionally says, “Stay; hold your hand; give your debtor, who has been equally unfortunate with yourself, a chance to recover; and if, within a given time, he does *536not begin to.pay, then you may enforce jrour remedy.” Is the obligation less binding now than it was before the war, or before the passing of the Act ? Is not the debtor still morally and legally bound by his contract ? Does the changing of the time when to sue impair the obligation to pay or perform 1 I cannot see it.

The means of enforcing the performance of a contract by suit is the lex fori, which is always regulated by the Legislature, and which may be changed, altered, amended, or suspended, as in the wisdom of the sovereign power will best promote the public good. Because the Legislature, being the sovereign of both parties to the contract, it is not only'' its right, but it is its duty, to see that the public good is secured and the public happiness promoted. This is all that the Legislature has done now; it has not interfered with the obligation of the contract, which is ’the lex contractus; that remains unimpaired. It has simply suspended, for a given time, the application of the remedy, which is the lex fori. To contend that the Legislature, the sovereign, cannot pass laws to promote the general welfare and to secure the general good of the governed, is to deprive it of its highest and most essential prerogative. And in all such cases they alone must be the judges, and must necessarily be so, because they alone.represent the people, the source of all power. In 1824 the Court considered a case which, in my opinion, goes far to settle this question. It is the case of Lowden vs. Moses, 1 McC. 93. By the Act of 1815, a vendue master was deprived of the benefit of the Act for the relief of insolvents “ in all eases where his or their debt or debts arose from not paying to the owner or owners who shall place property in their hands for sale the proceeds of the property so disposed of.” Moses sold property placed in his hands by Lowden for seventeen thousand dollars, and failed. Lowden sued him, and in June, 1821, obtained his judgment. Moses was put in jail, and was there in December, 1823. At the session of the Legislature of 1823 the Act of 1815 was repealed, and in a few days after the ratification of the repealing Act Moses applied for the benefit of the Insolvent Debtors’ Act. It was objected to his discharge, *537among other grounds, that an essential part of Lowden’s remedy, when the debt was contracted, was, that if Moses failed to pay, he could not have the benefit of the Insolvent Debtors’ Act, and that the Act of 1823 was not retrospective. The case appears to have been fully and ably argued on both sides; Messrs. Prioleau and Holmes sustaining the application, and Messrs. Gadsden and King opposing the discharge. Judge Bay, who heard the case on circuit, said: “ I do admit that when a man contracts a debt, he contracts eo instanti, or comes under an obligation to pay it or make satisfaction for it, and that this obligation remains until such satisfaction is made. And this is the sum and substance of every such contract; indeed, it is literally the lex contractus, both by the civil and common law. After this contract is made and entered into, then it is to be governed and regulated by the lex fori, or the general laws of the land; ' one of which is, that if the debtor does not pay and satisfy the debt, the creditor has the right to sue and imprison him.” He concludes his reasoning on this point by saying: “It cannot be denied that our Legislature, by the Act of 1815, did suspend the operation of this humane and benevolent Act against vendue masters, for reasons which, no doubt, they thought sufficient to justify them in such suspension. But, in the year 1823, they thought proper to remove that suspension, for reasons which induced them, no doubt, to conclude that the suspension of the insolvent Acts to that class of men was unreasonable and unjust. But this was no interference with the obligation of any contract any vendue master may have entered into. It left all those contracts in the same state where the Act of 1815 found them ; and this is an inherent act of sovereign power which every State has a right to exercise as it thinks proper. Chief Justice Marshall (4 Wheat. 200) says: ‘The distinction between the obligation of a contract and the remedy given by the Legislature to enforce the obligation of it, is founded in the nature of things; without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the State shall direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means *538of inducing Mm to perform it. But the State' may refuse to inflict this punishment, or withhold this means and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation.’ ” The prisoner was discharged, and on the appeal the Court did not hear the counsel for the defendant, but agreed with the Court below. Now, if the remedy be a part of the contract, or, in some way, controls the obligation, a great injustice was done to this man Lowden, and Moses ought to have been kept in jail until he paid him his seventeen thousand dollars. But it was no part of the contract; it in no way affected the obligation; like the right to sue, it was the general law of the land, which is subject to such restraint, conditions, modifications, alterations, and suspensions as the lex fori, in the wisdom of the Legislature, shall, from time to time, ordain and establish. Let us examine another case, in our own books, in which that eminent man, Judge Cheves, (a fit name to be mentioned in connection with that great light, Chief Justice Marshall,) expresses an opinion which, in my judgment, entirely sustains the view I am now presenting. In Alexander vs. Gibson, 1 N. & McC. 492, he says: “A foreign creditor who sues in this State, to whose suit the Statute of Limitations of this State is pleaded, will in vain say that the debt was contracted in another State or country by whose laws it was not barred. It would be answered, the statute belongs, not to the law of the contract, but is part of the lex fori, and must, therefore prevail. * * * Thus, the lex fori will extinguish the contract itself without any pecuniary or other valuable satisfaction.” At page 493, he continues: “Is the discharge of the debtor from his obligations to creditors, who have not arrested his person, but who have sued in the tribunal which administers the benefit of the insolvent Act, within the principle of the lex foril I think, from the examples which we have discussed, we are prepared to say the remedy, if not the debt, may be extinguished by this law, not only in the particular tribunal, but in every other tribunal, and in every other country.” And this Act also provides that no creditor, who is such at the date of the application, shall *539implead the debtor, so as to charge his person, in less than twelve months from the time of his release under the Act; which is, to all intents and purposes, the law now under discussion. It is said, however, all this reasoning applies to the insolvent laws. Certainly; but it also applies to the very principle we are now considering. If the Legislature can control the remedy, can alter it, can extend it, can abridge it, in one instance, what hinders that it may not do it in another ? Mr. Chitty, in his work on Contracts, *p. 628, says: “ At common law, the lapse of time cannot be offered as a bar to the remedy; the limitation is entirely prescribed by statute. But, even at common law, great delay in instituting proceedings may, unless explained, furnish the jury with a ground for presuming that the claim has been satisfied. The Statute of Limitations does not discharge or extinguish the debt — it only bars the remedy by action ; so that a lien in respect of the debt is not destroyed, though the remedy by suit to recover the debt begone.” And yet, it is supposed that an Act preventing the service of mesne or final process by the Sheriff, for one year, is unconstitutional, because it impairs the obligation of contracts. All the reasoning and authority go to prove that the remedy is. no part of the lex contractus, but is simply a creation of the lex fori, and, therefore, a change of the remedy does not impair the obligation of the contract. The lex fori is a matter of legislative regulation; the lex contractus is a matter of judicial construction. The one is regulated by the enactments of the Legislature; the other is governed by the decisions of the Courts.

If it be assumed that the remedy is a part of the contract, or-if, in order to avoid this broad doctrine, it be contended that the remedy, in some way not explained, influences and controls, the obligation, then it is not difficult to maintain that any alteration thereof “impairs the obligation.” But this is the very thing to be shown; and, when it is shown, it will be very difficult to maintain our insolvent and limitation Acts. It must be proved that the remedy is a part of the contract, before it can be contended that an alteration or suspension thereof im*540pairs the obligation. I have been looking for that proof; I have been listening to hear it; but I have neither read it in the books, nor heard it at the bar or in council. Where is it? Eminent men have asserted that it is; men equally eminent have asserted that it is not. It is simply the assertion of opinion, either way, and the onus is on those who assert that it is. I have looked in vain for the proof; I have looked in vain for the reason of the assertion. If I be told that Chancellor Kent and Mr. Justice Story say that it is, and that they are high authority, I reply, that Mr. Chief Justice Marshall, a cotemporary and associate of the men who framed the Constitution, and Judge Cheves, one of the wisest and greatest men that this State has ever produced, say that it is not, and that they are higher authority. If I be told that the majority of juridical writers say that it is, while I do not admit the assertion, I may reply, that the most eminent and the most learned say that it is not. But I do not admit that the majorityof writers say that it is. Nor am T convinced that Chancellor Kent and Mr. Justice Story maintain any such latitudinarian construction. They speak of the destruction of the remedy as a violation of the Constitution, but I do not understand them as objecting to any modification of, or change in, the remedy. I rather conclude they admit that the remedy is under the control of the legislative authority, and may be changed, modified, or suspended, so that it be not entirely destroyed. And those who cite these writers as authority for the position that any change in the remedy impairs the obligation of the contract, must show that they regard the suspension of the remedy as equivalent to its extinguishment I find Chancellor Kent using this language: “If a party be discharged from imprisonment only, he remains liable to arrest for the same debt in another State; for imprisonment relates only to the remedy, which forms no part of the contract.” 2 Kent, 611, marg. p. 462, ch. 39, 9 Am. ed. And in note A, on same page, he cites a number of authorities to sustain him in the position, Mr. Justice Story being one of them. But even if they do so maintain, I repeat I am not disposed to yield my judgment on a disputed point of constitu*541tional law to these authorities when I find such men as Marshall and Cheves differing from them. I concede much to their industry and to their learning, but on a question of'constitutional construction I have never considered them as the highest authority; certainly not to compai-e with such minds as Marshall and Cheves; nor am I singular in this opinion. We are considering this question for ourselves, for our State, and for our people. Let us be governed by reason and argument, not by numbers and assertion. The restriction in the Constitution is against the passing of “ a law impairing the obligation of contracts.” How can a law, which merely hastens or retards the remedy, impair the obligation? This question constantly recurs. My mind may be so constituted as not to be able to arrive at a correct conclusion on this subject, but certainly I am not able to come to that conclusion. The obligation is to do or not to do. The means of enforcing the performance, the remedy, is something very different from the obligation itself. It is entirely outside of the contract, it is a creation of society, it is a part of that machinery which society has erected for its government, and which we call the “judicial power.” But that it forms a part of the obligation of every contract which is entered into by the individuals composing society, I cannot understand. What does the word “impair” mean? It means “to make worse, to diminish in quantity, value or excellence, to weaken, to enfeeble.” (Webster.) “To make or become worse or less, to lessen, reduce, or diminish the quantity or quality.” (Richardson.) I ask, then, in what essential is the obligation impaired by a suspension of the remedy ? Is it lessened, reduced, or diminished in quantity or quality? The obligation to do or not to do is the same. The privilege to enforce or not to enforce by the aid of the Courts is the same. The time when the contract may be enforced by the aid of the Courts has been changed, or I should rather say put off. Is time in bringing the suit an essential element of the remedy ? Ho man is compelled to sue; it is a privilege conferred by law.

Before society was organized,’ there was no remedy but brute force. There was simply the moral obligation to perform that *542which the party had promised to perform. Society has provided the remedy: it has adopted a Constitution, in which certain fundamental principles are announced for the government of the body politic; it has organized a Legislature, to which it has given the power to establish Courts and to prescribe rules for the administration of justice, and which also has the power to make the laws by which all the transactions between the individuals composing the State are to be regulated. If these laws do not violate the fundamental principles announced in the Constitution, they are supreme. The law which governs the contract is the lex contractus. The law which enables the citizen to enforce the performance of the contract is the lex fori. But they are as distinct and separate as day and night. I cannot see, therefore, how the supreme power in the State, (supreme in reference to the subject-matter,) which has the right to regulate the administration of justice, to organize the Courts, to arrange the circuits, to say when the Courts shall be holden and when thejr shall not be holden, and to enact such laws as will best promote the welfare, the interest and(the happiness of the whole people, and best protect their rights of person and property, impairs the obligation of contracts by the passage of this law, “ to extend relief to debtors, and to prevent the sacrifice of property at public sales,” which forbids “any officer of this State to serve or execute any mesne or final process of any of the Courts of this State for the collection of money,” for a time therein limited, except in certain cases therein provided. It pretends to no construction; in anticipation of a war, it forbids the officers of the State to serve mesne or final process until the adjournment of the next Legislature, and that is all. The anticipation is realized ; a war, the most gigantic in history, which taxes the utmost powers and resources of the whole country in its length and breadth, ensues, and the law is continued for another year, and so on from year to year, until failure and defeat is the end, leaving the country prostrate, ruined, and desolated, with its cities, towns, and villages burne-1, its labor destroyed, its plantations and farms devastated, its commerce crippled, its people stripped and suffering ; when the Legislature is allowed to meet again by permission of the conqueror, *543and in its wisdom, with a full knowlege of the distressed condition of the country, re-enacts the law for another year. Is it for us, a co-ordinate branch of the government, to saj*-, that such a law, so wise, so humane, so eminently proper under the circumstances, is unconstitutional and void ? If it be so, we must say so. But if it be unconstitutional to extend relief to debtors, and to prevent the sacrifice of property, under such circumstances, by what is here ealled the “ Stay Law," then I do not see how we can avoid the conclusion, that every law which has been passed changing the time of holding the courts, altering the arrangement of .the circuits, modifying the provisions in regard to insolvency, prison-bounds and holding to bail, by the same line of reasoning is unconstitutional, for every such law interferes with the remedy in a greater or lesser degree. What does Chief Justice Marshall say, in Ogden vs. Saunders, 12 Wheat. 343: “We have, then, no hesitation in saying, that, however law may act upon contracts; it (Joes not enter into them, and become a part of the agreement. The effect of such a principle would be a mischievous abridgment of legislative power over subjects within the proper'jurisdiction of States, by arresting their power to repeal or modify such laws with respect to existing contracts.” This is all thaít I have contended for. I find no difficulty in receiving this idea; but I do find it impossible to receive as a part of the eontract-.the'femedy which the Legislature has provided for its enforcement. The right to contract is an original right, and so is the right to "enforce. These rights are not derived from society ; they are individual rights which have been brought into society. After society was formed, and constitutions and laws were made, and courts established, the Legislature, representing the sovereign will, framed a system of rules and regulations by which Courts are governed in the construction and enforcing of contracts; but these rules and regulations being at all times liable to change, as the wisdom of the sovereign may direct, or the necessities of society may demand, it follows naturally, and it seems to me inevitably, that the remedy cannot be a part of the contract, or control the obligation. I repeat, can any two things be more distinct than the obligation and the remedy ? The obligation is the thing to be done or not *544to be done, and is tlie act of the parties to the contract. The remedy is the mode which society has provided to enforce the performance of the obligation, and is the act of the Legislature. How, then, can it be said that the remedy, which is the creation of society, provided by the sovereign power to enable the governed to enforce performance, is a part of, or controls, the obligation of the contract itself, which is the thing to be enforced, and which is the creation of the parties thereto ? If this law annuls the obligation, destroys the contract, the argument may apply; but, as it does not, in the language of Chief Justice Marshall, “ We perceive, then, no reason for the opinion, that the prohibition ‘to pass any law impairing the obligation of contracts’ is incompatible with the free exercise of that discretion which the State Legislatures possess, in common with all governments, to regulate the remedies afforded by their own Courts. We think •that obligation and remedy are distinguishable from each other— that the first is created by the act of the parties, the last irf afforded by the government. The words of the restriction we have been considering countenance, wo think, this idea. ‘No State shall pass any law impairing the obligation of contracts.’ ■ These words seem to import that the obligation is intrinsic, that it is created by the contract itself, not that it is dependent on the laws made to enforce it.” 12 Wheat. 353. In none of the cases referred to was the identical question here presented considered; some were as to insolvent acts, some were as to legislative acts, which made new contracts; but in all, it is worthy of remark, there is a great conflict of opinion.

If, however, the question is to be decided by numbers rather than by reason, it seems to me that the weight of authority in favor of the constitutionality of the law greatly preponderates. The Act was first passed in 18G1, it was re-enacted in 1862, 1863, 1864 and 1865, and was sanctioned and approved by the Convention of September, 1865, which met before the Legislature of 1865. If that Convention be recognized as a power in the State that had a right to declare the fundamental law, and it did change the Constitution in fundamental articles, the ordinance of that body, “to declare in force the Constitution and laws heretofore in *545force,” &c., which includes this Act, and describes it as the law “ usually known as the Stay Law,” would seem to put the question at rest in South Carolina. Seven of the Judges now composing this Court were in that Convention.

It is not necessary now to inquire how far the decision against the constitutionality of this Act will affect contracts not under seal, and whether that portion of the Act which prevents the service of process can be declared unconstitutional and void, and that portion which suspends the operation of the Statute of Limitations be declared in full force and effect.

To conclude, this legislation is not new in South Carolina. In 1182, 4 Stat. 513, the Legislature, “for the want of specie, and because the people have been greatly distressed by the war,” passed an Act in which it was enacted, “that no suit shall be commenced until ten days after the next meeting and sitting of the General Assembly, unless the creditor shall make oath before some magistrate that he has good reason to believe the debtor intends to quit, or send his property out of this State,” &e. In 1183, 6 Stat. 621, this Act was continued in force, because “the reasons and circumstances which induced the enactment of the same do still operate.” And in 1185, 4 Stat. Ill, “in consequence of the failure of crops, and from the exportation of specie, and because many citizens of the State were threatened with total ruin,” a similar Act was passed. It is curious to see how the legislation has repeated itself in this, our day, and if it was proper then, how much more eminently proper is it now ? Therefore, reason, legislation, argument, and authority, all combine to sustain me in the correctness of the opinion pronounced on circuit.

An argument might be here urged that, when this Act was passed, it was not in derogation of the Constitution of the United States, because the State had then seceded from the Union; and when the ordinance of secession was repealed, the Convention, so attempting to bring the State again under the old Constitution, especially declared this Act tobe in force,-and it may be supposed intended to free it from all constitutional objection. If, however, the argument against the constitutionality of the law is *546conclusive, it maybe that the same line of reasoning which proves that the Legislature may not pass such a law, will be equally potent to convince that the Convention cannot breathe into it vitality. It may be as well, however, to throw out the idea, that when the Convention passed the ordinance continuing this law in force, it was the act of a sovereign and independent State. At that time the State stood out by herself, not bound by the Constitution of the United States, and, therefore, not trammelled by any of its provisions. The Constitution of the Confederate States was a dead letter, because the Confederacy had ceased to exist, it had no government, its armies were broken and scattered, its arms and munitions of war were surrendered, its President a prisoner, and all its officials fugitives or captives, so that the State stood • out alone as a sovereign independent State, or as a captured province. It was not the latter, because, at the invitation of the President of the United States, the Convention was then in session, altering the fundamental law, to suit the changed condition of things, and to reinstate her in her place in the Union. The ordinance affected only her own citizens, and, as an act of sovereign power, was not in derogation of the Constitution of the United States. I am not disposed to extend this opinion, already much longer than I desire, and therefore decline to pursue the discussion.

The near approach to unanimity in the Court of course makes me very distrustful of the correctness of my opinion ; but I cannot see the error in the argument which has convinced my mind, and not being able to agree with the majority, it is due to myself and to the Legislature which passed,the Act to give the reasons for my judgment. I trust the conclusion to which the Court has arrived will be conducive of good to the country, and that the fears and doubts which agitate my mind will prove illusive.

Motions granted.

Note. — Is it not remarkable that Courts -will undertake to decide that a law deliberately enacted by the Legislature of a sovereign State is unconstitutional and void, because it is in derogation of that clause in the Constitution of the United States which forbids a State to pass a “ law impairing the obligation of contracts,” when no Court of final jurisdiction has yet determined what is meant by the *547obligation of contracts? Mark the expression: it is, the “obligation” (in the singular) of “contracts,” (in the plural.) Now what does that mean? Certainly something that is the same in all of the States. -Whatever it may be, it must be the same in Maine, in South Carolina, in Texas. It is not, and cannot be, something that is doubtful; and, if this case is to be decided by authority, I call for the decision that decides what is the meaning of the phrase. It cannot be the moral obligation, because that existed before the Constitution was adopted, and was obligatory on the parties without its aid. It cannot be the legal obligation, because that was an existing right at the framing of the Constitution, which the Courts could then enforce, and if that was the meaning, it would have been so expressed. What then was it ? Congress, by the first article of the amendments, declared that no law shall be made respecting an establishment of religion, or abridging the freedom of speech, or of the press, or of the right to petition the government, or of the right of the people to keep and bear arms. What rights were these ? They were not rights conferred by law, but they were natural rights which existed independently of law, and with which neither States nor Congress were allowed to interfere. The freedom of speech does not mean slander ; the freedom of the press does not mean libel; the right to petition does not mean the impertinent interference of the people of one State with the domestic regulations of the people of another State ; the right to bear arms does not mean the right to shoot any man who may offend you. Henee, I infer, that the obligation referred to in the clause under consideration is that natural obligation of contracts which existed before the Constitution was adopted and with which the States were forbidden to interfere. That is, that real obligation, the exact meaning of the contract, which the Courts are to determine whenever the parties thereto disagree, and which no State can impair by legislation. It is the something which is the same in each and every of the States. It cannot be the right to sue, because the practice of the Courts is different in different States, and that was a right which each citizen possessed without the aid of the Constitution, and before it was adopted. It must then be “that natural obligation, which contracts have of natural right in conformity to natural justice.” Thus, when A and B enter into a contract which has a plain and natural meaning, the Legislature will not be permitted to place upon the words used to express the contract an artificial meaning, and, if they do, the Courts must declare that every such strained and artificial meaning is unconstitutional and void. How a law, which acts simply upon the remedy, can be forced to come within the meaning of this clause, is what I cannot see.

Let us take the case of Ogden vs. Saunders, which is the leading case, and on the authority of which all the cases cited have gone ; did that case decide what is the “ obligation of contracts ?” It did not. Of the seven Judges composing the Court, there were four different opinions, and of the four Judges who did agree in deciding the case, three different opinions prevailed; and so as to the text writers, the same division of opinion obtains. I therefore repeat, it is remarkable that a Court will undertake to decide that the law is unconstitutional, when it has not yet been decided what is “the obligation of contracts.”

Since writing this opinion, Lysander Spooner, Esq., of Boston, kindly sent me his book, entitled “A New System of Paper Currency,” and to it I am indebted for the point made in this note. — A. P. A.