were affected; and where the laws which were held void operated upon the remedy, they either had an effect equivalent to importing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force when the contract was made. In Pennsylvania it has been held that a statute authorizing a stay of execution on contracts in which the debtor had waived the right was unconstitutional;1 but it seems to us that an agreement to waive a legal privilege which the law gives as a matter of state policy cannot be binding upon a party, unless the law itself provides for the waiver.2 Where, however, by the operation of existing laws, a contract cannot be enforced without some new action of a party to fix his liability, it is as competent to prescribe by statute the requisites to the legal validity of such act as it would be in any case to prescribe the legal requisites of a contract to be thereafter made. Thus, though a verbal promise is sufficient to revive a debt barred by the statute of limitations or by bankruptcy, yet this rule may be changed by a statute making all such future promises void unless in writing. It is also equally true that where a legal impediment exists to the enforcement of a contract which parties have entered into, the constitutional provision in question will not preclude the legislature from removing such impediment and validating the contract. A statute of that description would not impair the obligation of contracts, but would perfect and enforce it. And the obligation of contracts is not impaired by continuing the charter of a corporation for three years, for the purpose of closing its business.5 One other topic remains to be mentioned in this connection, and that is, as to the power of the States to pass insolvent laws, and the classes of contracts to which they may be made to apply. As this whole subject has been gone over very often and very fully by the Supreme Court of the United States, and the important questions seem at last to be finally set at rest, we shall 1 Billmeyer v. Evans, 40 Penn. St. 324; Lewis v. Lewis, 44 Penn. St. 127. 3 See Conkey v. Hart, 14 N. Y. 30; Handy v. Chatfield, 23 Wend. 35. Joy v. Thompson, 1 Doug. (Mich.) 373; Kingsley v. Cousins, 47 Me. 91. v. Wadsworth, 30 Conn. 149; Curtis v. Leavitt, 15 N. Y. 9. And see Wood v. Kennedy, 19 Ind. 68, and the cases cited, post, ch. 11. Foster v. Essex Bank, 16 Mass. 245. content ourselves with giving what we understand to be the conclusions of the court. 1. The several States have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is paramount, and State enactments in conflict with those of Congress upon the subject must give way.1 2. Such State laws, however, discharging the person or the property of the debtor, and thereby terminating the legal obligation of the debts, cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to such future contracts as can be considered as having been made in reference to them.2 3. Contracts made within a State where an insolvent law exists, between citizens of that State, are to be considered as made in reference to the law, and are subject to its provisions. But the law cannot apply to a contract made in one State between a citizen thereof and a citizen of another State, nor to contracts not made within the State, even though made between citizens of the same State, except, perhaps, where they are citizens of the State passing the law. And where the contract is made between a citizen of one State and a citizen of another, the circumstance that the contract is made payable in the State where the insolvent law exists will not render such contract subject to be discharged under the law. If, however, the creditor in any of these cases makes himself a party to proceedings under the insolvent law, he will be bound thereby like any other party to judicial proceedings, and is not to be heard afterwards to object that his debt was excluded by the Constitution from being affected by the law.7 1 Sturges v. Crowninshield, 4 Wheat. 122; Farmers & Mechanics' Bank v. Smith, 6 Wheat. 131; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wal. 229. Ogden v. Saunders, 12 Wheat. 213. 3 Ogden v. Saunders, 12 Wheat. 213; Springer v. Foster, 2 Story, 387; Boyle v. Zacharie, 6 Pet. 348; Woodhull v. Wagner, Baldw. 300; Suydam v. Broadnax, 14 Pet. 75; Cook v. Moffat, 5 How. 310; Baldwin v. Hale, 1 Wal. 231. McMillan v. McNeill, 4 Wheat. 209. 5 Marsh v. Putnam, 3 Gray, 551. Baldwin v. Hale, 1 Wal. 223; Baldwin v. Bank of Newberry, Ibid. 234; Gilman. Lockwood, 4 Wal. 409. 7 Clay v. Smith, 3 Pet. 411; Baldwin v. Hale, 1 Wal. 223; Gilman v. Lockwood, 4 Wal. 409. CHAPTER X. OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. ALTHOUGH the people from whom we derive our laws now possess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a considerable proportion were villeins or slaves. Of the servile classes, one portion were villeins regardant, or serfs attached to the soil and transferable with it, but not otherwise; while the other portion were villeins in gross, whose condition resembled that of the slaves known to the modern law in America.1 How these people became reduced to this unhappy condition, it may not be possible at this distance of time to determine with entire accuracy; but in regard to the first class, we may suppose that, when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use; and that the second class were more often persons whose lives had been spared on the field of battle, and whose ownership, in accordance with the customs of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to this condition.2 At the beginning of the reign of John it has been estimated that one half of the Anglo-Saxons were in a condition of servitude. Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life and human suffering, and who knew little and cared less for any doctrine of the rights of man which was applicable to any other than the governing classes.3 It would be idle to attempt to follow the imperceptible steps by 1 Co. Lit. § 181; 2 Bl. Com. 92. Hallam's Middle Ages, ch. 2, part 2; Vaughan's Revolutions in English History, Book 2, ch. 8. For a view of the condition of the servile classes, see Wright's Domestic Manners and Sentiments, 101, 102; Crabbe's History of English Law (ed. of 1829), pp. 8, 78, 365; Hallam's Middle Ages, ch. 2, part 2; Vaughan's Revolutions in English History, Book 2, ch. 8. which slavery at length ceased to exist in England. It was never abolished by statute; and the time when serfdom ceased altogether cannot be accurately determined. The causes were at work silently for centuries; the historian did not at the time note them; the statesman did not observe them; they were not the subject of agitation or controversy; but the time came when the philanthropist could look over the laws of his country, and declare that slavery had ceased to be recognized by them, though at what precise point in legal history the condition became unlawful he might not be able to determine. Among the causes for its abolition he might be able to enumerate: 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is so often found existing when the ruling and the ruled are of different race, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise; and this presumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thraldom. 3. A residence for a year and a day in a corporate town rendered the villein legally free; so that to him the towns constituted cities of 1 Barrington on the Statutes (3d ed.), 272. 2 Mr. Hargrave says, at the commencement of the seventeenth century. 20 State Trials, 40; May's Const. Hist. ch. 11. And Mr. Barrington, p. 278, cites from Rymer a commission from Queen Elizabeth, in the year 1574, directed to Lord Burghley and Sir Walter Mildmay, for inquiring into the lands, tenements, and other goods of all her bondmen and bondwomen in the counties of Cornwall, Devonshire, Somerset, and Gloucester, such as were by blood in a slavish condition, by being born in any of her manors, and to compound with any or all of such bondmen or bondwomen for their manumission and freedom. And this commission, he says, in connection with other circumstances, explains why we hear no more of this kind of servitude. And see Crabbe's History of English Law, 574 (ed. of 1829). This author says that villeinage had disappeared by the time of Charles II. Hurd says in 1661. Law of Freedom and Bondage, vol. 1, p. 136. And see 2 Bl. Com. 96. Macaulay says there were traces of slavery under the Stuarts. History of England, ch. 1. Hume thinks there was no law recognizing it after the time of Henry VII., and that it had ceased before the death of Elizabeth. History of England, ch. 23. 3 Crabbe's History of English Law (ed. of 1829), p. 79. But this was only as to third persons. The claim of the lord might be made within three years. Ibid. And see Mackintosh's History of England, ch. 4. refuge. 4. The lord treating him as a freeman, as by receiving homage from him as tenant, or entering into a contract with him under seal, thereby emancipated him, by recognizing in him a capacity to perform those acts which a freeman only can perform. 5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father;1 and in law the nullius filius had no father. And 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive, and influenced emancipations by appeals to the conscience, especially when the master was near the close of life, and when the conscience would naturally be most sensitive. And with all these influences there was the further fact that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages, and that from thence to the highest order in the state there were successive grades; the children of the highest gradually finding their way into those below them, and ways being open by which the children of the lowest might advance themselves by native intellect, energy, or thrift, through the successive grades above them, until the descendants of dukes and earls might be found cultivating the soil, and the man of obscure birth winning his place among the hereditary aristocracy of the realm, through his successful exertions at the bar, or his services to the state in some other capacity. Inevitably these influences must overthrow the 1 Barrington on Statutes (3d ed.), 276, note; 2 Bl. Com. 93. But in the very quaint account of "villeinage and niefty," in Mirror of Justices, § 28, it is said, among other things, that "those are villeins who are begotten of a freeman and a nief, and born out of matrimony." The ancient rule seems to have been that the condition of the child followed that of the mother, but this was changed in the time of Henry I. Crabbe's History of English Law (ed. of 1829), p. 78; Hallam's Middle Ages, ch. 2, part 2. In 1514, Henry VIII. manumitted two of his villeins in the following words: "Whereas God created all men free, but afterwards the laws and customs of nations subjected some under the yoke of servitude, we think it pious and meritorious with God to manumit Henry Knight, a tailor, and John Herle, a husbandman, our natives, as being born within the manor of Stoke Clymerceysland, in our county of Cornwall, together with all their issue born or to be born, and all their goods, lands, and chattels acquired, so as the said persons and their issue shall from henceforth by us be free and of free condition." Barrington on Statutes (3d ed.), 275. See also Mackintosh's England, ch. 4. |