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 citi zens, 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 unneces sarily 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 the very ratio decidendi of those cases. In Bronson v. Kinzie1

1 1 How. 311. And see Penniman's case, 103 U. S. 714, in which the doctrine is thus stated by Woods, J.: "In modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy, or so embarrass it with conditions or restrictions as seriously to impair the value of the right." ED.

66

(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 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 contracts, and form a part of them, as the measure of the obligation to perform them by the one party, and the right acquired 1 2 How. 608, 612.

by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law diminish the duty, or impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other. Hence, any law which, in its operation, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly ob noxious to the prohibition of the Constitution."

In Grantly's Lessee v. Ewing1 (1845), the court said: "This court held in Bronson v. Kinzie that a right and a remedy substantially in accordance with the right, were equally parts of the contract, secured by the laws of the state where it was made; and that a change of these laws, imposing conditions and restrictions on the mortgagee in the enforcement of his contract, and which affected its substance, impaired the obligation and could not prevail; as an act directly prohibited could not be done indirectly."

In Curran v. Arkansas 2 (1853), the court said: "The obligation of a contract, in the sense in which these words are used in the Constitution, is that duty of performing it which is recognized and enforced by the laws. And if the law is so changed, that the means of legally enforcing this duty are materially impaired, the obligation of the contract no longer remains the same."

These several citations are not mere dicta, unnecessary to the decision of the cases in which they were uttered, but are formal statements of the very principle of constitutional law upon which the judgments of the court are based. I shall now briefly notice the applicatior. of this principle to some of the most common species of state statutes which directly apply to the remedy.

1 3 How. 707, 717.

2 15 Ibid. 304.