enforce it, which existed at the time it was made? To proclaim and enforce a doctrine
which unnerves the legislative arm, paralyzes its power, and throws it into a state nf
helpless inaction — of chemical fixation? It is not unfair when a doctrine so novel, and
so extensively operative, is about to be propagated, to dwell a little upon its probable-
political effects.
The governments of the United States and of the States are, it must be acknowl-
edged, dependent for their existence and duration upon the will of the good peojde
who compose them — this dependence is settled by fundamental law. In each Constitu-
tion the people have reserved to themselves, as an indefeasible right, the power to alter,
amend, and abolish the form of government thereby established. The will of men is
very much influenced by their feelings and their affections — their affections and their
feelings have much to do in the formation of their o|iinions. The strength of these
governments happily depends, not upon any system of physical force, contrived for their
invigoration, but depends upon, and consists in, the affections and will of the people who
compose them — the right of suffrage throughout the States, with but few exceptions, is,
as it ought to be, unqualified; consists alone in the unhampered exercise of matured
discretion. Can it, therefore, accord with correct political principles to diminish, or to
alienate, the affections of the people from their government, by demanding of them
"brick and denying them straw?" Are not the affections of the people the anchorage
of the government ? Let it not be forgotten that the affections of a people will always
be found flowing in the channels of their interest.
Let this argument be illustrated by example. The staple of the State of Louisiana
is sugar; that of the State of Mississippi, cotton; that of Ohio, flour, and of Virginia,
tobacco. It has l)een already stated that credit is necessary to individual and social
prosperity — that man, to advance and prosper, must anticipate his energies, which can
only be done by the exercise of that confidence which is essential to social intercourse.
The sugar-planters in Louisiana, the cotton-growers in Mississippi, the farmers of Ohio,
and the planters in Virginia may, in every year, anticipate their crops respectively —
anticipation to that extent is not only allowable, but justifiable. liach confides in the
40
626 BEN HARDIN.
heavens, its dews, its rains, and its sunshine— its general course has been kindly, and
invited confidence to that extent. But, unexpectedly, a frost nips the cane — defeats the
hopes and blasts the crop of the sugar-planters, who compose the mass of the staple
population of that State. The weevil, the fly, or the rust invades and desolates the
wheat crops in the State of Ohio. The rot or the frost visits and destroys the cotton
crops in the State of Mississippi. The worm besieges and destroys the growing tobacco
in Virginia, and the army worm marches across the plains of Kentucky, and desolates
its fields and its meadows. The existing remedial systems in their several States were
enacted in auspicious times, and suited to their prosperous condition — to the habitual
kindness of the heavens.
What is to be done ? Shall a single unseasonable frost in Louisiana subject the sugar
plantations of that State to instant sale under the hammer and their proprietors to ruin ?
Is there no remedial power in that State which can be exerted by its Legislature, to
avert so great a calamity? Is the sovereign remedial power of Virginia to be van-
quished by the tobacco worm? Can the army worm conquer the State of Kentucky,
and disanii it of its remedial energies; and must the legislative remedial power of the
great State of Ohio, yield to the force of the feeblest and most contemptible insect
tribes? The effects of a late frost, or of a long, protracted rain upon the cotton of
Mississippi, must remain alike remediless. And must the good people of these States
be told that there exists no power in their governments to soften the rigor of these visi-
tations — visitations which, if they can not be softened by remedial enactions, must
eventuate in the ruin of the great body of the staple population of these States, and in
the alienation of their affections from that government by the sternness of whose indif-
ference to their calamities, they will suppose themselves to have been destroyed? They
will have been made from good citizens, in whose affections the government had its best
anchorage — an anchorage guaranteed by all domicilary :^anctities, enemies to their gov-
ernment — adventurers ready to flock to the standard of experiment or revolt. They
may gain, they can not lose. They have lost their homes, their firesides, and their
altars, with which their patriotism was identified. They had a government — they had
a country — they have now neither — they have both to seek. The force with which
David subverted the empire of Saul was of that description. " And David, therefore,
departed thence, and escaped to the cave Adullam, and every one that was in distress
and every one that was in debt and every one that was discontented, gathered them-
selves unto him, and he became a captain over them,'" etc. ( i Samuel, chapter xxii,
verses i, 2.) The dangerous impolicy of the doctrine, ought not, it is believed, to have
been without its weight with the judges, when they were advancing by construction to
its establishment.
The power of enacting remedial laws is not, indeed, denied in terms to the Legis-
lature; they are permitted, say two of the judges, to enact them prospectively; but in
the case just put, and, indeed, in all the cases, in which, to avoid public calamity, the
exercise of the remedial power would be necessary, or could be useful, it must not be
exerted in mitigation of the influence of unl'oreseen and unex]iected events upon exist-
ing contracts. The power accorded by a majority of the judges to the State never
could be wisely exercised in relation to those upon whose contracts it would operate;
they would have been made with such a knowledge of the existing pressure as would
not entitle those bound by them to exemption from it. To say to a great portion of a
community who had become indebted by a reasonable anticipation of their resources,
and were aliout to be ruined liy an unexpecteil revolution in the state of affairs, that
the rigor of their condition could not be alleviated ; that the sovereign power of the
State could not be exerted to soften it; that their calamities, although unexpected, and
APPENDIX. 627
of a character that prudence could not have averted, must be borne, if it should even
grind them to dust. That the remedial power of the State could only be exerted pros-
pectively; exerted so as not to benefit or to save them, but to benefit and save their
creditors, and speculators, who might grow rich jjy their irremediable ruin. For a
State thus to speak to her afflicted citizens, would be ungracious, at least, as it related
to them, and somewhat humiliating as it related to herself. The power accorded by
the judges to the Legislature, is the power of enacting a remedial system in times of
great public calamity, not for the purpose, or in the view, of saving the citizens of the
State from ruin by its pressure, but for the ]nnpose of lieing used when calamity, its
causes and effects, shall have passed away— that is when it would be inappropriate and
would not be needed. It is not, therefore, unworthy of remark that the permission
conceded by the two judges to the Legislature to enact remedial laws prospectively, is,
in effect, in consonance with the opinion of the third judge, which denies to this
department the power to enact remedial laws. For having denied the exercise of it to
the States, in the only cases, and under the only circumstances, in which there could
exist a motive to exercise it; their permission of the power, where it would be inexpe-
dient, and even silly, to exercise it, can be neither more nor less than a disguised denial
of it. It is, to say the best of it, giving to the people a stone when they ask for bread.
But there are other aspects of the opinion, believed to be irreconcilable with princi-
ples of political orthodoxy. It is of the essence of sovereign power, that there shall
exist no restraints upon its exercise other than those imposed by the laws of its existence.
That it shall know no restraint upon its exercise which is not found in fundamental
law or in its own discretion. When, therefore, it is restrained from action, or restricted
in its agency, by any other cause or power, it ceases to be sovereign, and acknowledges
the power by which it is restrained to be paramount. The restraining power must, in
the nature of things (so far, at least, as relates to itself and the power restrained ), be
sovereign ; and the power restrained must, on the same principle, be vassal. According
to the opinion of the court, any two citizens of the State may, by contract, oblige the
State to retain the remedial system existing at the time of its date, until it shall please
the one, or the other, to resort to the forum for its enforcement, or for reparation for its
infraction, though the contract be executory, and not to be performed for twenty, or
even thirty, years thereafter. If the State shall, in its advancement in science and
refinement, have found it necessary to repeal the system, the repeal is to go for noth-
ing, as it relates to creditors by contract, anterior to its repeal. They will have the
right to exact from the State a recovery of their claims, according to the long-since
exploded and, perhaps, forgotten system. It is not less a rule of law, than of good sense
that a law by its repeal goes into non-existence, and can not be afterward efficient ; that all
proceedings depending upon a law, at the time of its repeal, fall with it, unless there
be a saving in the repealing statute in their favor. But this rule is reversed by the
decision, and a repealed statute is either not repealed, or it is re-enacted by the court.
Either the State has not the power to repeal it, in relation to creditors of that descrip-
tion, or the court has the power to re-enact it in their favor. But not only have any
two citizens of the State this control over the sovereign power which it possesses, but
any two, of any State, nation, or kingdom have like power, so that the sovereign
le"-islative power of the State may be exerted in the alteration of amendment of its
laws, subject to the supervision and control of creditors, alien or domestic, civili/ed or
savage. This limitation upon the exercise of legislative power can not be viewed in
any other light than as a courteous denial of it, for when it is considered that
the relation of debtor and creditor is one of continuous and unceasing recurrence
throughout the societies of the civilized world, that the same person is almost always
628 BEN HARDIN.
debtor as well a.s creditor, that the same persons are debtors as well as creditors, under
contracts of different dates, and of all possible modifications. The relation of debtor
and creditor will present itself to the view of intelligence as a fiducial stream which,
like the natural, consists of confluent globules, incapable of separation for any useful
or practical purpose, within the scope of legislative power, for society never can be
divided into two classes, the one debtor and the other creditor. The waters of the
ocean might as well be divided, the salt from the fresh.
Each of the judges condescends to notice, in the division of the subject, the con-
stitution of the State. But each seems to have extracted enough, by the process of
construction, from the tenth section of the first article of the Constitution of the
United States, to vacate the State laws, and to invalidate the power employed in their
enaction. The third judge does, indeed, invoke to the aid of his construction of that
section the ephemeral effusions of the revolutionary period of the American history,
not excepting even the querulous ebullitions of foreign ministers. But neither con-
descend to show by reference to, or comment on, the provisions of the State constitu-
tion, that his construction of the former is in harmony with, or is supported by, the
latter. The thirteenth section of the tenth article of the Constitution of the State
of Kentucky is the part of that instrument to which they are presumed to have
alluded. It is in the following words: "That courts shall be open, and every person,
for an injury done him in his lands, goods, person, or reputation, shall have remedy by
due course of law, and right and justice administered without sale, denial, or delay,"
which should be considered in connection with the fourteenth section, which imme-
diately follows it, and is in these words: "That no power of suspending laws shall be
exercised, except by the Legislature, or its authority." These two clauses are evi-
dently and emphatically addressed to the judiciary. By the first, the duty of admin-
istering justice by the due course of law, without sale, denial, or delay, is enjoined
upon the judges; they are not to make laws, or repeal laws, but are to administer
justice, according to the laws, by due course of law. The laws enacted by the Leg-
islature are to form the rule of decision. They can not repeal or suspend them.
They must conform to them in all their adjudications, unless, indeed, laws are obvi-
ously and palpably unconstitutional. But the judges have, in this case, not only repealed
the laws of their State, but they have repealed the fourteenth article, last above quoted,
of the Constitution of their State. They have, moreover, re-enacted laws which have
been repealed; and two of them have invested themselves with this power, by elaborate
and lengthy disquisitions of an abstract and metaphysical character. The third is as
l)lunt as he is bold in the vacation of the laws of his State. But ought they not, it may
be asked, to have displayed in the process of their construction, some regard to the
opinions of the sages and patriots who have spoken and acted on this suljject? Was the
judgment of the convention who formed the State Constitution, and of the Congress
who explored it and admitted Kentucky into the Union as an independent State, upon
the conviction that her Constitution was not incompatible with that of the United
States ; strengthened, too, by the approving intellection of the State, under the most
solemn sanctions, in its practical exposition during a period of twenty-four years,
unworthy of their regard ? Should these considerations have been lightly considered?
Should they have weighed nothing with the judges, especially when they were travel-
ing the devious path of dubious construction — a path for which they had left the well-
beaten and long-trodden highway?
In the formation of the State Constitution, the best, the most experienced intellect
of Kentucky was employed. The members of the convention had before them the
Constitution of the United States. They were invoked by their own interests, their
APPENDIX.
e
e
629
own rights, l.y the interests, prosperity, and rights of their o^Vpring.. and of posterity.
by all the solemn cous.derat.ons wh.ch are associated in the hun,an mind, with th^
blessings o c.v.l hherty, and a Republican, the best form of civil government, to
explore well the ground which they occupied; and so to dehne and establish the rijhts
of Kentucky that they might co-exist harmoniously with the pre-established rights of
the Unued States. And it can be supposed that the discovery now made by the three
judges escaped, not only their research, but the research and observation of the Con-
gress of the Unued States, by whose solemn act the Constitution of Kentucky was
approved, and she thereon admitted into the Union. How did it happen that this ,li.-
covery was not made by these judges, or their predecessors, during the last twenty-four
years . How liappened it that the enlightened State of Virginia has been violating the
obhgat.on of contracts since the year 1748, and that none of her judges and statesmen
had the acumen to discover it? How did it happen that all the States committed the
like violation of the obligation of contracts, during the pressure occasioned by the
embargo, and that occasioned afterward by the war. in their remedial actions, and that
there was not discernment enough among the American people to make the discovery
and proclaim the wrong? Were the discoveries of their wis<lom stifled by the impulses
of then- patriotism during those trying junctures; and was it, therefore, reserved to the
Appellate Court of Kentucky to promulgate the discovery at this time, when the prac-
tical utility and intrinsic strength of the principle might be displaved in the instant
prostration of a remedial system, which the Legislature of the State, under the illusion
that it possessed the power, had, by a series of successive annual enactions, accommo-
dated to the condition of embarrassment into which the people had been unexpectedly
thrown, by causes not within their control?
It is true, the United States Bank did not exist, during all the time referred to, in
that almost boundless amplitude of dimension, in which it has seemed latterly to have
been arrayed on the part, and under the fostering care, of the national courts, against
the States. That is a monied institution, and (as money is power), of course, an insti-
tution of power commensurate with its capital. Its motto is. " Pay me that thou owest
me." A rigid punctuality (but ill according with the agricultural habits and varying
condition and resources of most of the States) is exacted by that institution. From it,
therefore, such an exposition of the tenth section of the first article of the Constitution,
as would by paralyzing the sovereign power of the States, remove all impediments to its
operation according to the laws of its nature and contexture, might have been expected.
It is formed to prosper only by the metallic punctuality, which it enforces with remorse-
less rigor. Its doctrines and faculties are favorable only to commerce, and to com-
mercial societies. It is not intended to be intimated that the decision was formed
under any conscious influence I'rom that quarter. Im]nirityof motive is not ascribed
to the judges ; but as the consequences of an erroneous opinion may be as injuri-
ous to society as a corrupt one, society is under no more obligation to submit to a
palpably erroneous opinion, if it be extensively and radically injurious, than to an olni-
ously corrupt one; although, it may lie believed that the judges who delivered the
former, are, as in this case, incajiable of the latter. When error, associated with purity
of motive, emanates from the judicial department, the question should be, can it he
tolerated compatibly with the great and substantial right> and interests of the commu-
nity? If it can, it should be connived at; if it can not, it should be combated and
refuted. At least, it should be denied the power of jiropagating itself. The decision,
to say the leaNt of it, is believed to be of that character. The supposition that the
remedy alone constitutes the obligation of a contract, is predicated upon an entire want
of confidence among men — upon the extinction in the hunian heart, not only of all
630 BEN HARDIN.
its honorable and honest sensations, its love of justice, and its charitable impulses, but
its social tendencies — a predication at war with the first principles of civil government.
Confidence is the principle of cohesion in society; its function in the moral region
is analogous to that of gravitation in the natural — it is the offspring of the social, self-
ish, and religious tendencies and bias of human nature. The decision takes it for
granted that, in all contracts, the parties, instead of confiding in the honesty, capacity,
and punctuality of each other, confide alone in the power of the government as dis-
played in the existing remedial laws, to coerce performance. That is, that every con-
tract is made, not only with the knowledge on the part of the creditor that it will be
violated, but with the intention on the part of the debtor to violate it. And, of course,
that the creditor contracts for the purchase of a lawsuit, in which he holds the State
bound to let him have the very identical law for which he contracted — the law which
he purchased from his debtor — and for the payment of which in kind the State was
bound as his security. The tendency of such a doctrine to demoralize the people — its
anti-social and degrading tendency — must be too obvious to require illustration. The
old maxim, "that tlie law abhors a multiplicity of suits," is reversed by this decision,
and the rules and the legal machinery of litigation are made negotiable, and proclaimed
as the obligation of contracts.
Tliere is a striking peculiarity of doctrine proclaimed by the decision, which has not
yet been noticed, and that is, that the existing shape of the remedy at the date of the
contract is binding upon the debtor, and upon the State, but not upon the creditor.
He may, at his option, vacate or affirm the law altering the remedy which constituted
according to the decision, the obligation of his contract, on the ground that it is uncon-
stitutional and void. Yet, the law which is thus void, absolutely so, shall be valid if
he shall so choose, and, though absolutely void, shall bind the debtor and his security in
a replevin bond, taken under it, until the creditor shall deign to indicate his will to the
contrary. If a contract shall be made when the law allows a replevy of three months,
a law repealing that, and allowing a replevy of twelve months, is unconstitutional and
void, if the creditor shall so choose, and his debtor must be subjected to instant execu-
tion. He can not replevy for three months, because the law allowing that length of
replevy has been repealed. He can not replevy for twelve months, because the time
fixed in the remedy, which existed at the date of the contract, was three months. Its
repeal was not unconstitutional and void, as relates to the debtor, because, says the
court, gravely, its repeal is beneficial to the creditor. If the law allowing a twelve
months' replevy be repealed, the debtor, upon a contract made during its existence, can
not be availed of its provisions, because, says the court again, gravely, its repeal is
beneficial to the creditor.
The old doctrine of the law, of reason, and of philosophy, that it is of the essence
of a contract, that it be mutual and reciprocal in its obligation, that it be binding upon
both, or upon neither, is reversed and vacated by the decision, which seems throughout
only to require that the debtor shall be bound to the creditor.
But if time be an item of any importance in a contract, and the remedial system
under which it is made forms the total of its obligation, then an abridgement, or aboli-
tion, by tlie Legislature of the length of replevy to which the debtor was entitled by
law at the date of the contract, must, according to any fair reasoning, be as unconsti-
tutional and injurious to the debtor as its enlargement, or prolongation, would be to
the creditor. The alteration of the time either way must be valid or void as to both or
neither. If the creditor contracted in the view not of being paid by the time stipulated
in the contract, but the time stipulated, or rather designated, in the remedial law, then
the debt is evidently not due until the expiration of the time designated in that law.
APPENDIX. 5^,
But this new doctrine is eitlier not well understood l.y ihe court, or they have heen
unfortunate in their development of it. While they say that the existing remedial
system forms alone the obligation of contracts, they say that the law of establishing
the courts, and arranging their sessions, is no part of the remedial .system, and, there-
fore, they permit the Legislature to alter the judicial system at pleasure; to increase or
diminish the number of terms or sessions in the year ; to reduce them to one in the
year, or one in two years, without impinging upon the Constitution of the United
States. And why is not this law arranging the courts a part of the remedial system?
Let the chief-justice answer: "Because the obligation of a contract consists 'in the
remedy, and not in the court which administers the remedy; and that, though the
courts may be altered, or the times and places of holding them changed, the remedy