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thus been placed under the control of state legislatures. That this result is plainly erroneous may be established, I think, by the following analysis:

§ 611. The term remedy used in our legal nomenclature includes, as Austin clearly shows, two entirely distinct classes of objects; (1) the secondary, sanctioning, or remedial right by which the observance of a contract is made something more than voluntary; (2) the procedure by and through which this secondary, sanctioning right is made efficient. The first of these objects is included within the obligation; the second is not. To express the same proposition in other language, a party may demand that substantially the same remedial right appropriate to his contract when it was entered into, shall be accorded to him when it is broken; he cannot demand that the forms of judicial procedure which prevailed at the former time shall also be in existence at the latter. If we can ascertain, therefore, in any general way, what is necessarily embraced within the secondary, sanctioning, or remedial right which inheres in the injured party upon the breach of a contract, we shall also have ascertained what laws, by impairing that remedial right, will impair the obligation of the contract itself.

§ 612. Under our system of jurisprudence two forms of remedial right may result to the injured party upon the breach of a contract; the one form applying to a small number only of agreements, the other being appropriate to all. The first is the right to have done exactly what the defaulting party promised to do, the remedial right to a specific performance. The other is compensatory, or the right to be paid such an amount of pecuniary damages as shall be a compensation for the injury caused by the failure of the defaulting party to do exactly what he promised to do. Both of these species of remedial rights must be pursued by the aid of the courts. In both, the existence of the contract and of the breach must be established. These facts having been sufficiently ascertained, a decree or judicial order must be rendered, in the first case, that the defaulting party do exactly what he undertook to do, and in the second case, that the defaulting party pay the sum of money

fixed as a compensation for his delict. But the remedial right cannot stop here, else it would be a mere empty show. The judicial order addressed to the defaulting party must be enforced; in the first case, by compelling him to do the act or acts commanded to be done; in the second case, by seizing and selling so much of his property as may be necessary to pay the sum adjudged against him, if he neglects to make voluntary payment. Included within the general sanctioning, or remedial right which forms part of the obligation of every contract, are therefore the following elements, each and all necessary to its efficacy and perfection: (1) the right to bring an action against the defaulting party as soon after the breach as is permitted by the ordinary procedure of the courts; (2) the right to obtain a judgment or decree as soon as possible according to the ordinary modes of proceeding in the court where the action is pending; (3) the right to enforce this judgment as soon and as efficiently as is allowed by the same general methods of practice. State laws interfering with either of these elements, interfere with the remedial right itself, impair its efficacy, and thereby impair the obligation of the contract.

§ 613. But the modes of judicial procedure have nothing in them intrinsically connected with the remedial right. They are adopted from motives of public policy, and from a desire to promote the convenience, partly of the whole body of citizens, partly of the bench and the bar, and partly of suitors. They are therefore changed, and may be changed whenever new notions of policy become controlling, or an altered condition of society or business requires another arrangement. Among those matters which belong to procedure are the number, organization, and jurisdiction of courts; the times and places of holding courts; the forms of action and of pleading by which the claims and defences of parties shall be presented; the periods of time given in which to respond to claims and defences, and to prepare for trial, provided the length of such periods be fairly referable to the convenience of courts and suitors, and they are not mere arbitrary delays which unnecessarily hinder the creditor in the pursuit of his remedial right; the forms of trial; the nature of the evidence; the modes of

review; the time within which judgment may be enforced, provided such period be fairly referable to that general convenience of courts and suitors which lies at the basis of all established modes of practice, and be not a mere arbitrary delay which unnecessarily hinders the creditor. A change in these and such-like matters does not affect the remedial right itself, and does not impair the obligation of even existing

contracts.

§ 614. To illustrate: If the courts of a state are regularly open at certain intervals of time, so that a resort to them is possible, a statute made applicable to existing agreements, and forbidding suits to be brought thereon for one, two, or three years after the breach, or permitting suits to be commenced, but forbidding any further prosecution thereof to judgment for one, two, or three years, would directly operate upon the essence of the remedial right, and not upon the forms and modes of procedure by which that right is enforced. Such a law would be exactly equivalent to a legislative act that should add one, two, or three years to the original time of performance which the parties had agreed upon. It would be entirely independent of the judicial methods over which the state has control, because those methods must still be followed when the action is allowed to proceed. In like manner if, at the time a contract was entered into, a judgment recovered thereon could be enforced as soon as obtained, a subsequent state law that should peremptorily delay the compulsive enforcement for one, two, or three years, would be equally obnoxious to the constitutional prohibition. In conclusion: The remedy embraces an essential sanctioning or remedial right, and the judicial procedure by which that right is enforced. The procedure forms no part of the obligation, and may be changed. The essential remedial right does form a part of the obligation, and may not be impaired.

§ 615. These conclusions seem to be entirely warranted and sustained by a series of cases in the Supreme Court of the United States, and, though expressed in somewhat different language from that employed by the national judiciary, to form

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the very ratio decidendi of those cases. In Bronson v. Kinzie 1 (1843), Chief Justice Taney, while delivering the opinion of the court, stated the general rule in the following manner: "If the laws of the state passed afterwards had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection. For undoubtedly a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. And although the new remedy may be less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the Constitution. It is difficult perhaps to draw a line that would be applicable in all cases, between legitimate alterations of the remedy, and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of a contract, and the rights of a party under it, may in effect be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing." He then proceeds to show that a remedial right, or a sanction by which to enforce the command of the law, is a necessary part of the obligation of a contract. Quoting a passage from Blackstone to this effect, he adds: "We have quoted the entire paragraph because it shows in a few plain words the connection of the remedy with the right. It is the part of the municipal law which protects the right

1 1 Howard's R. 311.

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and the obligation by which it enforces and maintains it. It is this protection which the clause in the Constitution mainly intended to secure. And it would be unjust to the memory of the distinguished men who framed it, to suppose that it was designed to protect a mere barren and abstract right, without any practical operation upon the business of life. It was undoubtedly adopted as a part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout the Union, by placing them under the protection of the Constitution of the United States. And it would ill become this court, under any circumstances, to depart from the plain meaning of words used, and to sanction a distinction between the right and the remedy which would render the provision illusive and nugatory."

It would seem to be plain that Chief Justice Taney had in mind the distinction which I have stated from Austin, between the essential remedial right, and the modes of procedure. Yet it is remarkable that many state judges have shut their eyes to his whole course of reasoning, and to the conclusions reached by that reasoning, and not a few have given far more weight to the dictum incidentally thrown into his remarks concerning the power of a state legislature to exempt property from execution, than to the principle of constitutional construction upon which the judgment of the court proceeded.

§ 616. In McCracken v. Hayward1 (1844), Baldwin, J., while pronouncing the judgment of the court, used language as the foundation of that decision, even yet more emphatic: "In placing the obligation of a contract under the protection of the Constitution, its framers looked to the essentials of a contract more than the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it. The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all con1 2 Howard's R. 608, 612.

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