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States, and public sentiment is in most communities unusually active in its support, and is not restrained by any difficulty in finding a scientific justification for the law. The enactment and enforcement of the law are prompted by a tender sympathy for the dumb brutes, who while serving human ends are being subjected to cruelty. These statutes are designed, as the language of the statutes expressly indicates, for the prevention of cruelty to animals. Whose rights are protected by the enactment? Those of the animals? Are animals, other than human beings, recognized as the subjects of rights? Cruelty to animals might be claimed as an offense against public morality and the public sense of mercy. But that is in the nature of an afterthought, suggested as an escape from the logical dilemma, with which one is otherwise confronted in the consideration of these laws. Whatever may be said to the contrary, in the enactment of these laws, there is an unconscious, if not admitted, recognition of legal rights in the dumb animals, who are subjected to man's dominion. They are by such legislation placed in the same legal relation to the freeman as the slave was in the days of slavery. Both are the property of the freeman; the master's power of control was limited only by just such laws, as the one now under consideration, which were designed to prevent cruelty in their treatment. It is the torture to the animal that is prohibited, wherever it was done. If the law was considered and justified merely as the prohibition of an offense against the public sense of mercy, and involved no recognition of rights in the dumb animals, the operation of the law would have to be confined to public acts of cruelty, such as unmerciful beating on the streets and other thoroughfares. But it is plain that the ordinary law for the prevention of cruelty to animals is broken as much by cruel treatment in the stable as in the public highway ; whether done in the presence of a large assembly,
1 See State o. Pugh, 15 Mo. 509.
as in the cock-pit, or with no others present than the person whose anger or pure maliciousness induces the act of cruelty. The animalsóso protected must be recognized as subjects of legal rights. And why should they not be so recognized ? Is it not self-conceit for man to claim that he alone, of all God's creatures, is the possessor of inalienable rights ?
§ 142. Regulation of contracts and rights of action. The validity of an ordinary contract cannot be impaired by State legislation, for it is protected from such an attack by an express provision of the Federal constitution. Any law, therefore, which changes the character of the obligation, either by diminishing or increasing its burden, is void because it impairs the obligation. The obligation of the contract, which is thus protected from impairment, is civil and not moral ; that is, the law must be legal, according to the provisions of the law in force when the contract was made, in order that it may claim this protection. An illegal contract creates or supports no rights, in short, has no legal existence. It will not be necessary to explain in this place how far laws may be enacted for the regulation of subsequent contracts, for this matter has been fully discussed in another connection. Nor is it necessary or appropriate to explain here in detail what is included under the term “ COLtract," in the sen-e in which the word is used in the constitutional provision referred to. The term contract is here employed in the sense of “ executory contract," an agreement between two or more, for a valuable consideration, to do or give something.
1 “No State shall pass any law impairing the obligation of a contract." U. S. Const., art. I, § 10.
2 Douglass v. Pike Co., 101 U. S. 677; McCracken v. Hayward, 2 How. 608, 612; Ogden v. Saunders, 12 Wheat. 213; People v. Ingersoll, 58 N. Y.; Goggans v. Turnipseed, 1 S. C. 40 (7 Am. Rep. 23); Stein o. Mobile, 49 Ala. 362 (20 Am. Rep. 283); Van Baumback v. Bade, 9 Wis. 559. And the constitutional prohibition applies to changes in the State constitutions as well as to amendments of the statutes. White v. Hart, 13 Wall. 646; Osborn o. Nicholson, 13 Ark. 654; Oliver o. Memphis, etc., R. R. Co., 30 Ark. 128; Jacoway o. Denton, 25 Ark. 641.
3 “ It is the civil obligation which (the constitution) is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State in which it is made. If, therefore, a contract when made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation; because the law in such cases forbids its having any binding efficacy or force. It confers no legal right on the one party, and no corresponding legal duty on the other. There is no means allowed or recognized to enforce it; for the maxim is ex nudo pacto non oritur actio. But when it does not fall within the pre
Tire constitutional provision against impairing the obligation of contracts is held to be binding only upon the States. But there can be no doubt that similar action by Congress would likewise be unconstitutional, because it would deprive one of his property without due process of law.:
All rights of every description may be violated, and inasmuch as the law prohibits the individual from redressing his own wrong, he is entitled to an appropriate action in the law courts of the country. A denial of this right of action would be as much an interference with the right that has been violated, as the original trespass was. If the violated right is a broken contract, an absolute refusal of all remedy would impair the obligation of a contract in a constitutional sense, and the law taking away all remedies would be void. For å like reason, a law,
a law, which would take away all remedies for the violations of other rights, whether of persons or of property, would ap
dicament of being either illegal or void, its obligatory force is co-extensive with its stipulations.” Story on Constitution, $ 1380.
" See ante, $$ 90, 93-100.
? For a discussion of this subject see Cooley Const. Lim., pp. 331-346Whether the character of corporations fall properly within the meaning and scope of this provision, see post, $ 188.
3 See ante $ 93.
* Osborne 0. Nicholson, 13 Wall. 662; Call v. Hagger, 8 Mass. 430; Penrose 0. Erie Canal Co , 56 Pa. St. 46; Thompson o. Commonwealth, 81 Pa. St. 314; West o. Sansom, 44 Ga. 295; Rison v. Farr, 24 Ark. 161; Griffin o. Wilcox, 21 Ind. 370; McFarland v. Butler, 8 Minn. 116; Jackson 0. Butler, 8 Minn. 117.
pear to violate the legal sanctity of the substantive right. If it be a right of property that has been transgressed, the deprivation of the right of action would be an interference with vested rights; and so also would it be an infringement of one's personal security, if a right of action was denied for a trespass upon one's person or liberty. But it has been held by the United States Supreme Court that a constitutional convention of a State may take away existing rights of action, provided the obligation of a contract is not impaired, or a punishment inflicted. There is certainly no express provision of the constitution which protects these rights of action from interference by legislation; but it would seem to us that the constitution protects from undue interference the right to resort to the courts for redress of one's wrongs, as much as it does the right to pursue a harmless occupation. They are equally essential to the pursuit of happiness. It would be an act of tyranny for a government to deny the right to redress one's own wrongs, and at the same time to refuse an appropriate remedy. It is probable that the Supreme Court would have decided differently, if the constitutional provision under consider ation had had reference to other rights of action than those growing out of the conflict of war.
But as long as a substantial remedy is provided, the character of it may be changed at the pleasure of the legislature; and when it applies to the enforcement of a contract, such a change, however material, will not be considered to impair the obligation of a contract, even though the change is to a less desirable or convenient remedy. The most radical
1 Drehman v. Stifel, 41 Mo. 184; 8. c. 8 Wall. 595. See Hess v. Johnson, 3 W. Va. 645. In the first case, the constitutional provision took away all rights of action for anything done by the State or Federal military anthorities during the civil war.
? Ogden v. Saunders, 12 Wheat. 213; Beers v. Haughton, 9 Pet. 329; Tennessee v. Sneed, 96 U. S. 69; Simpson v. Savings Bank, 56 N. H. 466; Danks o. Quackenbush, 1 N. Y. 129; Morse o. Goold, 11 N. Y. 281; Baldwin v. Newark, 38 N. J. 158; Moore v. State, 43 N. J. 203; Evans v. Montgomery, 4 Watts & S. 218; Penrose v. Erie Canal Co., 56 Pa. St. 46; Baumgardner v. Circuit Court, 4 Mo. 50; Porter v. Mariner, 50 Mo. 364; Smith v. Van Gilder, 26 Ark. 521; Coosa River St. B. Co. o. Barclay, 30 Ala. 120; Halloway v. Sherman, 12 Iowa, 282; Smith o. Packard, 12 Wis. 371; Bronson o. Newberry, 2 Dougl. (Mich.) 38; Rockwell 0. Hubbell's Admrs. 2 Dougl. (Mich.) 197.
changes are permissible, as long as a substantial remedy remains. Thus a law may take away from existing contracts the right to confine the debtor, and yet not impair the obligation of the contract. “Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation."
1 The rules of evidence may also be changed without affecting the substantive rights involved. No one can be said to
1 Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. 122. See Mason v. Haile, 12 Wheat. 370; Penniman's Case, 103 U. S. 714; Matter of Nichols, 8 R. I. 50; Sommers v. Johnson, 4 Vt. 278 (24 Am. Dec. 604); Ware v. Miller, 9 S. C. 13; Maxey v. Loyal, 38 Ga. 531; Bronson v. New. berry, 2 Dougl. (Mich ) 38. A judgment lien may be taken away by the repeal of the statute authorizing it. Watson o. N. Y. Cent. R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100. But see, contra, Gunn o. Barry, 15 Wall. 610. The time of the lien may also be extended before it has expired (Ellis v. Jones, 51 Mo. 180), or the mode of securing it changed before it has attached. Whitehead o. Latham, 83 N. C. 232. See, also, Williams o. Haines, 27 Iowa, 251, in which a statute, which allowed the want of consideration to be set up in defense of an action on a sealed instrument, was held to be constitutional, because it did not impair the obligation of the contract. On the other hand, where by statute the stockholders are made personally liable for the contracts of the corporation, a statute taking away this liability cannot be made to apply to existing contracts. Hawthorn v. Calef, 2 Wall. 10; Corning o. McCullough, 1 N. Y. 47; Story v. Firman, 25 N. Y. 214; Morris v. Wrenshaı), 34 Md. 494; Brown v. Hitchcock, 36 Ohio St. 667; Providence Savings Institute v. Skating Rink, 52 Mo. 452. So, also, may the distress for rent be taken away from existing leases. Van Rensselaer v. Snyder, 9 Barb. 302; 8. C. 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502. And the distress for rent may be abolished, even in cases in which the parties have expressly stipu. lated for it. Conkey v. Hart, 14 N. Y. 22.