objected to repugnant to any provision of the constitution of the United States? It is alleged to be so by the counsel for the plaintiff in error, for a variety of reasons; and particularly because it impairs the obligation of the contract between the state of Pennsylvania and the plaintiff, who claims title under her grant to Wharton, as well as of the contract between Satterlee and Matthewson; because it creates a contract between parties where none previously existed, by rendering that a binding contract which the law of the land had declared to be invalid; and because it operates to devest and destroy the vested rights of the plaintiff. Another objection relied upon is, that in passing the act in question the legislature exercised those functions which belong exclusively to the judicial branch of the government. Let these objections be considered. The grant to Wharton bestowed upon him a fee simple estate in the land granted, together with all the rights, privileges and advantages which, by the laws of Pennsylvania, that instrument might legally pass. Were any of those rights, which it is admitted vested in his vendee or alienee, disturbed or impaired by the act under consideration? It does not appear from the record, or even from the reasoning of the judges of either court, that they were in any instance denied, or even drawn into question. Before Satterlee became entitled to any part of the land in dispute under Wharton, he had voluntarily entered into a contract with Matthewson, by which he became his tenant, under a stipulation that either of the parties might put an end to the tenancy at the termination of any one year. Under this new contract, which, if it was ever valid, was still subsisting and in full force at the time when Satterlee acquired the title of Wharton, he exposed himself to the operation of a certain principle of the common law, which estopped him from controverting the title of his landlord by setting up a better title to the land in himself, or one outstanding in some third person.

It is true that the supreme court of the state decided, in the year 1825, that this contract, being entered into with a person claiming under a Connecticut title, was void; so that the principle of law which has been mentioned did not apply to it. But the legislature afterwards declared, by the act under examination, that contracts of that nature were valid, and that the relation of landlord and tenant should exist and be held effectual as well in contracts of that description as in those between other citizens of the state. Now, this law may be censured, as it has been, as an unwise and unjust exercise of legislative power; as retrospective in its operation; as the exercise by the legislature of a judicial function; and as creating a contract between parties where none previously existed. All this may be admitted; but the question which we are now considering is, does it impair the obligation of the contract between the state and Wharton or his alienee? Both the decision of the supreme court in 1825, and this act, operate, not upon that contract, but upon the subsequent contract between Satterlee and Matthewson. No question arose or was decided to disparage the title of Wharton, or of Satterlee, as his vendee. So far from it, that the judge stated in his charge to the jury that if the transactions between John F. Satterlee and Elisha Satterlee were fair, then the elder title of the defendant must prevail, and he would be entitled to a verdict.

We are, then, to inquire whether the obligation of the contract between Satterlee and Matthewson was impaired by this statute. The objections urged at the bar, and the arguments in support of them, apply to that contract if to either. It is that contract which the act declared to be valid, in opposition to the decision of the supreme court; and admitting the correctness of that

decision, it is not easy to perceive how a law which gives validity to a void contract can be said to impair the obligation of that contract. Should a statute declare, contrary to the general principles of law, that contracts founded upon an illegal or immoral consideration, whether in existence at the time of passing the statute, or which might hereafter be entered into, should nevertheless be valid and binding upon the parties, all would admit the retrospective character of such an enactment, and that the effect of it was to create a contract between parties where none had previously existed. But it surely cannot be contended that to create a contract, and to destroy or impair one, mean the same thing. § 1633. The constitution of the United States does not prohibit a state from passing retrospective laws.

If the effect of the statute in question be not to impair the obligation of either of those contracts, and none other appear upon this record, is there any other part of the constitution of the United States to which it is repugnant? It is said to be restrospective. Be it so; but retrospective laws, which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that instrument.

§ 1634. The constitution of the United States does not prohibit the legislature of a state from exercising judicial power.

All the other objections which have been made to this statute admit of the same answer. There is nothing in the constitution of the United States which forbids the legislature of a state to exercise judicial functions. The case of Ogden v. Blackledge, 2 Cranch, 272, came into this court from the circuit court of the United States, and not from the supreme court of North Carolina; and the question whether the act of 1799, which partook of a judicial character, was repugnant to the constitution of the United States, did not arise, and consequently was not decided. It may safely be affirmed that no case has ever been decided in this court, upon a writ of error to a state court, which affords the slightest countenance to this objection.

§ 1635. The federal constitution does not prohibit the states from passing laws devesting vested rights, so long as they do not impair the obligation of con

tracts.

The objection, however, which was most pressed upon the court, and relied upon by the counsel for the plaintiff in error, was, that the effect of this act was to devest rights which were vested by law in Satterlee. There is certainly no part of the constitution of the United States which applies to a state law of this description; nor are we aware of any decision of this or of any circuit court which has condemned such a law upon this ground, provided its effect be not to impair the obligation of a contract; and it has been shown that the act in question has no such effect upon either of the contracts which have been before mentioned..

In the case of Fletcher v. Peck, 6 Cranch, 87 (§§ 1805-12, infra), it was stated by the chief justice that it might well be doubted whether the nature of society and of government do not prescribe some limits to the legislative power; and he asks, "if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?" It is nowhere intimated in that opinion that a state statute which devests a vested right is repugnant to the constitution of the United States; and the case in which that opinion was pronounced was removed into this court by writ of error, not from the supreme court of a state, but from a circuit court. The strong expressions of the court upon this point in the cases of Van

horne v. Dorance, 2 Dal., 304, and Society for Propagation of Gospel v. Wheeler, 2 Gall., 105, were founded expressly on the constitution of the respective states in which those cases were tried. We do not mean in any respect to impugn the correctness of the sentiments expressed in those cases, or to question the correctness of a circuit court, sitting to administer the laws of a state, in giving to the constitution of that state a paramount authority over a legislative act passed in violation of it. We intend to decide no more than that the statute objected to in this case is not repugnant to the constitution of the United States, and that, unless it be so, this court has no authority, under the twentyfifth section of the Judiciary Act, to re-examine and to reverse the judgment of the supreme court of Pennsylvania in the present case. That judgment, therefore, must be affirmed, with costs.

MR. JUSTICE JOHNSON concurred in the decision, but disapproved of the ground on which it was placed, to wit, that a state legislature could declare a void contract valid. He contended that the whole difficulty arises out of that "unhappy idea that the phrase ex post facto, in the constitution of the United States, was confined to criminal cases exclusively;" that the statute complained of was no more than declarative of the law on a point on which the decisions of the state courts had fluctuated, and which never was finally settled until the decision took place on which the writ of error was sued out.

OSBORN v. NICHOLSON,

(13 Wallace, 654-664. 1871.)

ERROR to U. S. Circuit Court, District of Arkansas.
Opinion by MR. JUSTICE SWAYNE.

STATEMENT OF FACTS.- The plaintiff in error brought this suit on the 10th of February, 1869, in that court, and declared upon a promissory note made to him by the defendants in error for $1,300, dated March 26, A. D. 1861, and payable on the 26th day of December following, with interest at the rate of ten per cent. from date. The defendants pleaded that the instrument sued upon was given in consideration of the conveyance of a certain negro slave for life, and none other; and that at the time of the making of the instrument the plaintiff, by his authorized agent, executed to the defendant a bill of sale, as follows:

"MARCH 20, 1861.

"For the consideration of $1,300 I hereby transfer all the right, title and interest I have to a negro boy named Albert, aged about twenty-three years. I warrant said negro to be sound in body and mind, and a slave for life; and I also warrant the title to said boy clear and perfect."

And that the said negro soon thereafter, to wit, on the 1st day of January, 1862, was liberated by the United States government, the said slave being then alive, and that the plaintiff ought not, therefore, to recover. The plaintiff demurred. The court overruled the demurrer, and the plaintiff electing to stand by it, the court gave judgment for the defendants. This writ of error has brought the case here for review. The question presented for our determination is, whether the court erred in overruling the demurrer; or, in other words, whether the facts pleaded were sufficient to bar the action.

66

§ 1636. The constitution of Arkansas of 1868, so far as it forbids suits on contracts for sales of slaves, impairs the obligation of contracts and is invalid. We lay out of view in limine the constitution of Arkansas of 1868, which annuls all contracts for the purchase or sale of slaves, and declares that no court of the state should take cognizance of any suit founded on such a contract, and that nothing should ever be collected upon any judgment or decree which had been, or should thereafter be, "rendered upon any such contract or obligation." It is sufficient to remark that as to all prior transactions the constitution is in each of the particulars specified clearly in conflict with that clause of the constitution of the United States which ordains that "no state shall " 'pass any law impairing the obligation of contracts." Von Hoffman v. City of Quincy, 4 Wall., 535 (§§ 1877-82, infra); White v. Hart, 13 Wall., 646. Nor do we deem it necessary to discuss the validity of the contract here in question when it was entered into. Being valid when and where it was made, it was so everywhere. With certain qualifications, not necessary to be considered in this case, this is the rule of the law of nations. Judge Story says: "The rule is founded not merely on the convenience, but on the necessity, of nations; for otherwise it would be impracticable for them to carry on an extensive intercourse and commerce with each other." Story's Confl. of Laws (Redfield's ed.), § 242. It may be safely asserted that this contract when made could have been enforced in the courts of every state of the Union, and in the courts of every civilized country elsewhere. In the celebrated case of Somerset, Lord Mansfield said: "A contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of inquiry, which makes a very material difference." 20 Howell's State Trials, 79. See, also, Madrazo v. Willes, 3 Barn. & Ald., 353; Santos v. Illidge, 98 Eng. Com. L., 861; The Antelope, 10 Wheat., 66; Emerson v. Howland, 1 Mason, 50; Commonwealth v. Aves, 18 Pick., 215; Groves v. Slaughter, 15 Pet., 449; and Andrews v. Hensler, 6 Wall.,

254.

§ 1637. A warranty that the status of a slave is that of slave for life relates to the time the warranty is given and not to changes at a subsequent period.

Nor is there any question as to an implied warranty of title or otherwise. There being an express warranty, that must be taken to contain the entire contract on the part of the seller. This warranty embraces four points: that the slave was sound in body; that he was sound in mind; that he was a slave for life; and that the seller's title was perfect. It is not averred or claimed that the warranty was false when it was given, in either of these particulars. The title to the slave passed at that time, and if the warranty were true then, no breach could be wrought by any after event. Let it be supposed that, subsequently, a lesion of the brain of the slave occurred, and that permanent insanity ensued, or that, from subsequent disease, he became a cripple for life or died, or that, by the subsequent exercise of the power of eminent domain, the state appropriated his ownership and possession to herself; can there be a doubt that neither of these things would have involved any liability on the part of the seller? He was not a perpetual assurer of soundness of mind, health of body, or continuity of title. A change of the ownership and possession of real estate by the process of eminent domain is not a violation of the covenant for quiet enjoyment. Frost v. Earnest, 4 Whart., 86; Ellis v. Welch, 6 Mass., 246. Nor is it such an eviction as will support an action for a breach of the covenant of

general warranty. In Dobbins v. Brown, 12 Penn. St., 80, it was said by the court: "It will scarcely be thought that a covenant of warranty extends to the state in the exercise of its eminent domain. Like any other covenant it must be restrained to what was supposed to be the matter in view. No grantor who warrants the possession dreams that he covenants against the entry of the state to make a railroad or a canal, nor would it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him; but the law is not so unreasonable as to imply it." In Bailey v. Miltenberger, 31 Penn. St., 41, it was said: "It has never been supposed that the vendor or vendee contemplated a warranty against the exercise of this power whenever the public good or convenience might require it." These remarks are strikingly apposite to the point here under consideration. As regards the principle involved, we see nothing to distinguish those cases from the one before us. In all of them the property was lost to the owner by the paramount act of the state, which neither party anticipated, and in regard to which the contract was silent. Emancipation and the eminent domain work the same result as regards the title and possession of the owner. Both are put an end Why should the seller be liable in one case and not in the other? We can see no foundation, in reason or principle, for such a claim.

to.

§ 1638. There can be a warranty against a future event, but courts cannot interpolate it into the agreements of parties.

It was formerly held that there could be no warranty against a future event. It is now well settled that the law is otherwise. Benjamin on Sales, 463. The buyer might have guarded against his loss by a guaranty against the event which has caused it. We are asked, in effect, to interpolate such a stipulation and to enforce it, as if such were the agreement of the parties. This we have no power to do. Our duty is not to make contracts for the parties but to administer them as we find them. Parties must take the consequences, both of what is stipulated and of what is admitted. We can neither detract from one nor supply the other. Dermott v. Jones, 2 Wall., 1; Revell v. Hussey, 2 Ball & B., 287.

Where an article is on sale in the market, and there is no fraud on the part of the seller, and the buyer gets what he intended to buy, he is liable for the purchase price, though the article turns out to be worthless. Thus, where certain railroad scrip had been openly sold in London for several months, but was subsequently repudiated by the directors of the company as having been signed and issued by the secretary without authority, it was held that the buyer could not set up as a defense a failure of consideration. Lambert v. Heath, 15 Mees. & W., 487. See, also, Lawes v. Purser, 6 Ell. & Bl., 930. These cases go further than it is necessary for us to go in order to sustain the liability of the defendants upon the contract here in question. There, as in this case, the buyer might have protected himself by a proper warranty, but had failed to do so.

§ 1639. A loss by vis major falls on the party who was the proprietor when the loss was occasioned.

But we think the exact point here under consideration was settled by the court of queen's bench in Mittelholzer v. Fullarton, 6 Ad. & El., 989. That case, so far as it is necessary to state it, was this: The contract was made at Burbice, in British Guiana. The plaintiff sold to the defendant the services of one hundred and fifty-three apprentice laborers who had been slaves, for £7,800, payable in six annual instalments of £1,300 each. The defendant paid four