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Adams v. Storey.

many of which the condition of the country and the great object at stake, might seem to offer some apology, became so common, so intolerable, and so inveterate, in many places, that it became no easy matter, even after the restoration of peace, and the acquisition of our independence, to lay them aside. There will, therefore, be found in the statute books of several of the states, after the termination of the war, many provisions of the same meddling and obnoxious character, which either changed the nature of contracts, or suspended the payment of them, or authorized it in a way contrary to the plain engagement and meaning of the parties.

By laws of this description, which had become too dangerous and oppressive to be any longer borne, very extensive and great uneasiness was produced, and against them was raised a corresponding and almost universal expression of indignation and regret. Accordingly, to all the objections made against the prohibition, on the part of the states, to pass laws impairing the obligation of contracts, we find the friends of the constitution every where, and again and again, urging the necessity of it, in order to put an end to the evils which had flown from acts of the kind which have been mentioned, and which had, after the revolution, been extended by designing and inAuential men, to many other cases, so as to increase, instead of diminishing, the alarm which had been excited. To such acts we find them constantly ascribing the decay of commerce, the ruin of public credit, and the almost entire extinction of confidence between individuals, and pressing with vehemence the adoption of this article as one of vital importance, and as the only guard and preventive against the promulgation by future legislatures of similar acts in derogation of private rights, however great the emergency might be deemed. But on no one occasion do we hear of any complaints against the power of passing insolvent laws. This prac

Adams v. Storey.

tice had not arisen out of the calamities of war; it was brought with the first American colonists from the mother country; it was adopted, in one form or other, by all the British colonies in North America, without an exception that has been discover. ed as to any one which now composes a part of the United States. It must have originated, wherever we find the practice of it, and perhaps it is not hazarding too much to say, that it is universal, not only from a conviction that the encouragement of trade required it, and so are the recitals to many of the acts; but from those indelible principles which are implanted in the breast of every man, and which proclaim, in a language not to be misunderstood, that in every country, where imprisonment for debt is allowed, there must and ought to reside a power somewhere of compelling creditors to abandon their hold of the body of a debtor, who shall fairly, and under such restrictions as the law may provide, make a complete surrender of his property, to be divided amongst those whose debts some unexpected, turn of fortune has rendered him unable to pay. In such cases, his future acquisitions, although here there may exist some diversity of opinion, should also be his own, or he will be restored to his freedom and family, not only without property, but without credit, and in many cases with such a heavy load of unextinguished debt, and so many liens on his future acquisitions as must stifle every exertion to make any. His freedom, in such cases, will be a mockery, nor will such a state of servitude to his creditors often prove of any service to them ; for, sinking under a burden from which he sees no prospect of relieving himself, his ambition and efforts will be limited to the gaining of a bare maintenance for himself and family, knowing that neither he nor they can ever be benefitted by any surplus. .

But whatever considerations may have first called into practice a power of this kind, it is sufficient for our present purpose, that we find it in use in perhaps every state of the union, under

Adams v. Storey.

some modification or other at the time of the adoption of the constitution, and that the laws passed on this subject very generally, if not universally, provided not only for future cases of insol. vency, but for those which existed at the time. If this be so, and that it was so to a very great extent is not denied, it must

have been known to the friends of the constitution, who-ex. erted themselves in favour of its adoption ; and yet no arguments drawn from that source are to be found in the debates of any of the conventions, in favour of the prohibition. Nor is it recollected, that those who were hostile to its adoption, ever objected to this feature of it, because of its liability to such construction; and yet such objections would have been heard from more quarters than one, if it had then been thought susceptible of the interpretation which the court is now expected to apply to it. It may also be observed, that if it had been thought necessary at that time of day to tie up the hands of future legislators in relation to this matter, it would have been more natural to have committed to Congress a power of establishing a uniform system of insolvency as well as of banka ruptcy, or to have transferred to the general government an unqualified and express power in the premises; for it cannot be credited that a people who had been so long accustomed to laws of this kind, would have consented to deprive the state legislatures of the power of passing them, without at the same time delegating to that of the union some control over the same subject. Dissatisfaction may have existed and been expressed at the abuses which were committed under the sanction of such laws, for not more effectually protecting creditors against the frauds of their debtors, and such dissatisfaction is often heard at the present day; but never was the right or propriety of an interference in this way called in question.

To the practice of the states antecedent to and at the epoch of the adoption of the constitution, and to the silence on this

Adams v. Storey.

head of those whose attention was directly called to this article, may be added the uninterrupted and undisputed usage of all or most of the states from that day down to the present time. Yet after the lapse of near thirty years, during which time scarcely a chasm or intermission is to be discovered in the usage of the state where the court is now holding, it is called upon to pronounce all its insolvent laws, so far at least as they operate on past debts, and all discharges under them of such debts, as repugnant to the constitution, and therefore void. Without adverting to the serious consequences of such a decision, with which the court has nothing to do, how, it may be asked, is the uniform practice which has been mentioned to be accounted for, but from a general and universal understanding that such practice was no departure from any of the obligations which one state had contracted with the others? Can we believe, that before time was allowed to organize the general government, and while the instrument of its formation was undergoing the examination and criticism of able and industrious adversaries, any state could have passed laws of this character, not only without animadversion, but execute them without any objection from a numerous class of citizens'who are in general not the most inattentive to, or ignorant of, their rights? Would not a clamour on the part of creditors have been heard from one extremity of the union to the other, against such an usurpation of power, if it had been viewed in that light? And if the legislatures of the several states could not have been brought back to a sense of duty by remonstrances against the exercise of such a right, would not applications have been made to the Courts of Justice, to arrest by their decisions the progress of such gross and frequent violations of the constitution ? ..

But not only have these laws been passed without a constilutional difficulty being ever suggested by any member of the legislature, at the time, but frequently as they must have been,

Adams v. Storey.

brought to the notice of the Courts of the different states, and sometimes of the federal judiciary. It is not until very recently that the present objection has been heard of. Congress too, in the only bankrupt law which they ever passed, introduced a provision, that it should not “repeal or annul the laws of any state, then in force, or which might thereafter be enacted for the relief of insolvent debtors ;” many, if not all of which then in force, will, on examination, be found to be retrospective. Either then, these laws are not within the prohibition, or if they are, and the terms of it are so obscure as to have hitherto eluded the research of so many who must have had an interest in its discovery, it is the very case in which a court ought to rely for its true sense on a general practice which has been so long submitted to.

It has been said that a practical construction is of no importance when a question arises on public acts of so important and solemn a nature as a written compact between several independent states. The instrument, it is said, should speak for itself. But if there be any thing in this remark, a decision of the Supreme Court of the United States, on the effect of a practice in fixing the meaning of the constitution, would not permit the court to listen to it. In the case referred to, a usage of only ten or twelve years, and which had once been interrupted by an act of Congress, was deemed to settle a question, in which was involved the very independence of an important and co-ordinate member of the federal government, and that too in opposition to what, many will think, as probably did the Judges themselves who decided it, the plain and obvious letter and spirit of the constitution.

But, aside from this contemporaneous and universal expression of public and private sentiment on this subject, the Court is not very certain that it would have regarded a law of this nature, if the question were of earlier date, as “impairing the obligation of contracts."

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