praisement, or any other mode of valuation than a public sale, 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 may be carried to any extent if it exists at all; it may prohibit a sale for less than the whole of the appraised value, or for three fourths, or nine tenths, as well as for two thirds; for 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 rights of the plaintiff."

The same doctrine was afterwards applied to similar statutes of other states in Grantly's Lessee v. Ewing, and Howard v. Bugbee. The state courts have, in a few instances, adopted these conclusions of the national judiciary, although they may not have accepted, in its full scope and effect, the reasoning upon which the conclusions are founded.3

§ 623. Many state courts, however, have disregarded the rules established by the supreme constitutional tribunal; they have attempted to evade the decisions by refined and technical distinctions, utterly ignoring the salutary principle upon which the decisions proceeded; or they have entirely repudiated this principle, and asserted a complete control in the state legislatures over the whole subject of remedies. Thus, in Chadwick v. Moore, the Supreme Court of Pennsylvania upheld a statute which enacted that when lands are taken on execution they shall be appraised, and if they do not bring two thirds of the appraised value, further proceedings shall be stayed for one year. Chief Justice Gibson attempted to distinguish the case from that of McCracken v. Hayward, by asserting that in the latter, the statute of Illinois was declared void because it created an indefinite stay of execution, which might be perpetual. This assertion was entirely gratuitous, not warranted

13 Howard's R. 707.

2 24 Howard's R. 461.

3 Bunn v. Gorgas, 5 Wright's R. 441; Billmyer v. Evans, 4 Wright's R. 324; Cargill v. Power, 1 Manning's R. 369; Scoby v. Gibson, 1 Am. Law Reg. (N. S.) 221.

4 8 W. & S. 49.

by any thing in the reasoning or the conclusions of the court. Besides, the Supreme Court of the United States had, in Bronson v. Kinzie, condemned with equal emphasis a law of Illinois which gave a mortgagor a year within which to redeem his land, and thus postponed the absolute title of the purchaser for a definite period. It is not the uncertainty of the time during which a creditor's remedial rights are postponed, which impairs the obligation of his contract, but the fact that they are arbitrarily postponed at all. If the creditor may be debarred from pursuing his remedy for a year after the breach of his contract, because the length of the stay is fixed and certain, then another year might as well and as legally be added to the time of original performance, for both of these modifications would produce the same final result.

§ 624. In 1861 the legislature of Pennsylvania passed a statute staying all civil process against persons in the military service of the state or of the United States, for the term of such service, and for thirty days thereafter. An act of Congress had fixed the term of service at three years. In Breitenbach v. Bush, the Supreme Court held this stay law valid, because the period of time during which the stay was to last was definite, and the court considered it reasonable. In McCormick v. Rusch,2 the Supreme Court of Iowa decided a similar statute of that state to be constitutional. In this latter case, Wright, J., entered into a very elaborate discussion of the whole question; denied that the remedy forms any part of the obligation; and insisted that states have complete control over the subject-matter. In the course of his opinion the learned judge asserts that the whole subject would have been left free from doubt and difficulty, if the attempt had not been made to include the remedy within the obligation. This is certainly true. But the subject would have been still simpler, still more free from difficulty, if the Constitution had not attempted to protect the obligation at all, but had left the contracting parties at the mercy of the states. Having placed a restriction upon the power of the states, the Constitution must be fairly construed; its intent must be observed; indirect vio1 8 Wright's R. 313. 2 3 Am. Law Reg. (N. S.) 93.

lations of its inhibitions are as unlawful as those which are direct.

I need hardly say, that however patriotic and laudable may have been the design of these statutes, they were plain infractions of the constitutional provision. Forbidding a suit to be brought for three years, or to be prosecuted for three years, is the same in substance as forbidding a judgment to be executed for three years; and both affect the obligation as directly and as injuriously, as adding three years to the agreed time of original performance would do. Whatever aid of this kind is given to the soldier, should be given by Congress; and I have no doubt that Congress has full power to promote enlistments by offering such an advantage to the volunteer.

§ 625. (5.) Exemptions from Execution. - Judgments which direct the payment of a certain sum of money, can only be enforced in a compulsory manner by seizing and selling property of the judgment debtor. To what extent this property shall be liable to seizure, is a matter of policy for each state to determine. It is plain, that if the laws of a state should relieve all of the debtor's property from this liability, the legal obligation of every contract would be gone; none but a moral obligation would be left. Exemption Laws are those which relieve all or some portion of the debtor's property from liability to seizure and sale upon execution. So far as they apply to future contracts, they only involve a question of policy; so far as they apply to existing contracts, they involve the further question of power. To illustrate: At the time a contract is entered into, all the debtor's property is liable to seizure and sale on execution, except certain enumerated articles of clothing, of household furniture, and of food. Subsequently to the execution of this agreement, but before it has been completely enforced, the state legislature enacts a general statute by which other articles of property are also exempted, such as tools of a mechanic, a team, furniture to a certain amount, a homestead, and the like. Would such a statute be valid in its application to the existing contract? Upon the principles already stated, and upon the authority of decisions made by the Supreme Court of the United States, when we look not

merely at the very facts to which these decisions referred, but to the fundamental course of reasoning without which they could not have been made, the ratio decidendi,—it is plain that the state law violates the constitutional provision, that it impairs the obligation of the contract, and is void. Courts of great ability and of high authority have, however, held the contrary; and the current of state judicial decision has been strongly in favor of such retro-active enactments.

§ 626. In Quackenboss v. Danks (1845), the Supreme Court of New York decided that a statute similar to that above described was void, so far as it applied to existing contracts. Mr. Justice Bronson delivered the opinion of the court, and argued that the statute virtually takes a fund which the creditor could reach by the prior law, and transfers it to the debtor; that removing all the property of the debtor from the reach of the creditor, destroys the obligation of the contract entirely ; that removing a part, impairs the obligation pro tanto; that state legislatures have no more power to do the latter, than they have to do the former of these acts.

In Danks v. Quackenboss 2 (1848), the same case was considered by the New York Court of Appeals, and the judgment below was affirmed by an equally divided court. Four judges adopted the reasoning and conclusions of Mr. Justice Bronson, four judges thought the statute valid, and their views were presented by Mr. Justice Gardiner, as follows: The obligation may be impaired by laws which change the express terms of a contract; or which change the existing law which gives a certain force to these terms; also by laws which deny a remedy altogether, or which burden the proceedings with new conditions so as to make the remedy hardly worth pursuing; states may modify the remedy at pleasure; the partial exemption law in question does not affect the contract at all; it only acts upon the remedy, but does not take away the remedy altogether, or place any unreasonable burdens upon its pursuit; the creditor may still obtain a judgment and enforce it against such of the debtor's property as is not exempt from

execution.

1 1 Denio's R. 128.

2 1 Comstock's R. 129.

1

In Morse v. Gould 1 (1854), the same question was again presented to the New York Court of Appeals, and the statute was declared valid. An elaborate opinion was given by Mr. Justice Denio, who followed in substance the course of reasoning before adopted by Gardiner, J. The key to his conclusions is found in the following passage: "It is admitted that a contract may be virtually impaired by a law which, without acting directly on its terms, destroys the remedy, or so embarrasses it that the rights of the creditor, under the legal remedies existing when the contract was made, are substantially defeated. With this necessary qualification, the jurisdiction of the states over the legal proceedings of their courts is supreme."

3

The Supreme Court of Michigan reached the same result in Rockwell v. Hubbell (1846). These views were carried to an extreme, but no doubt to a logical conclusion, by a court of Kansas, in Mede v. Hand (1865). Statutes requiring an appraisal and sale for not less than two thirds of the appraised value, giving the judgment debtor the right to redeem within one year after the sale, and exempting one hundred and sixty acres of land from execution altogether, were sustained and applied to a prior contract. The court took the broad ground that the obligation of a contract is ended when a judgment thereon is obtained.

§ 627. I cannot assent to the judgments quoted in the preceding paragraph. The able courts and judges who pronounced them, seem to have fallen into error. They have required that the obligation of a contract should be totally or virtually destroyed, in order that the constitutional prohibition should become operative. The Constitution itself demands no such extent of injury; it speaks of "impairing" the obligation, not of "materially impairing" it, not of "substantially defeating" it. "it. Laws which determine what property of a judg ment debtor may be seized and sold on execution, do not belong or relate to the procedure of courts; they affect the very remedial right in its most essential part; they declare to 2 2 Douglas' R. 197.

1 1 Kernan's R. 281.

3 5 Am. Law Reg. (N. S.) 82.