merely at the very facts to which these decisions referred, but to the fundamental course of reasoning without which they could not have been made, the ratio decidendi,- it is plain that the state law violates the constitutional provision, that it impairs the obligation of the contract, and is void. Courts of great ability and of high authority have, however, held the contrary; and the current of state judicial decision has been strongly in favor of such retro-active enactments.

§ 626. In Quackenboss v. Danks (1845), the Supreme Court of New York decided that a statute similar to that above described was void, so far as it applied to existing contracts. Mr. Justice Bronson delivered the opinion of the court, and argued that the statute virtually takes a fund which the creditor could reach by the prior law, and transfers it to the debtor; that removing all the property of the debtor from the reach of the creditor, destroys the obligation of the contract entirely; that removing a part, impairs the obligation pro tanto; that state legislatures have no more power to do the latter, than they have to do the former of these acts.

In Danks v. Quackenboss 2 (1848), the same case was considered by the New York Court of Appeals, and the judgment below was affirmed by an equally divided court. Four judges adopted the reasoning and conclusions of Mr. Justice Bronson, four judges thought the statute valid, and their views were presented by Mr. Justice Gardiner, as follows: The obligation may be impaired by laws which change the express terms of a contract; or which change the existing law which gives a certain force to these terms; also by laws which deny a remedy altogether, or which burden the proceedings with new conditions so as to make the remedy hardly worth pursuing; states may modify the remedy at pleasure; the partial exemption law in question does not affect the contract at all; it only acts upon the remedy, but does not take away the remedy altogether, or place any unreasonable burdens upon its pursuit; the creditor may still obtain a judgment and enforce it against such of the debtor's property as is not exempt from.

execution.

1 1 Denio's R. 128.

2 1 Comstock's R. 129.

In Morse v. Gould 1 (1854), the same question was again presented to the New York Court of Appeals, and the statute was declared valid. An elaborate opinion was given by Mr. Justice Denio, who followed in substance the course of reasoning before adopted by Gardiner, J. The key to his conclusions is found in the following passage: "It is admitted that a contract may be virtually impaired by a law which, without acting directly on its terms, destroys the remedy, or so embarrasses it that the rights of the creditor, under the legal remedies existing when the contract was made, are substantially defeated. With this necessary qualification, the jurisdiction of the states over the legal proceedings of their courts is supreme."

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The Supreme Court of Michigan reached the same result in Rockwell v. Hubbell 2 (1846). These views were carried to an extreme, but no doubt to a logical conclusion, by a court of Kansas, in Mede v. Hand (1865). Statutes requiring an appraisal and sale for not less than two thirds of the appraised value, giving the judgment debtor the right to redeem within one year after the sale, and exempting one hundred and sixty acres of land from execution altogether, were sustained and applied to a prior contract. The court took the broad ground that the obligation of a contract is ended when a judgment thereon is obtained.

§ 627. I cannot assent to the judgments quoted in the preceding paragraph. The able courts and judges who pronounced them, seem to have fallen into error. They have required that the obligation of a contract should be totally or virtually destroyed, in order that the constitutional prohibition should become operative. The Constitution itself demands no such extent of injury; it speaks of "impairing" the obligation, not of "materially impairing" it, not of "substantially defeating" it. Laws which determine what property of a judg ment debtor may be seized and sold on execution, do not Delong or relate to the procedure of courts; they affect the very remedial right in its most essential part; they declare te 1 1 Kernan's R. 281. 22 Douglas' R. 197.

3 5 Am. Law Reg. (N. S.) 82

what extent the contracting party shall respond to his undertaking. Exempting all a debtor's property would confessedly destroy the obligation, for it would remove the only fund from which a compensation can be obtained; exempting a part of a debtor's property, in that it would diminish this fund and would render the security more precarious, would as plainly impair the obligation of all existing contracts.

A very late judgment of the Supreme Court of the United States seems to support these views, and to be entirely irreconcilable with the reasoning and conclusions adopted by the New York court. A statute of the State of Maine had incorporated a certain railway company; the shares of the stockholders were made liable for the debts of the corporation; in case of a deficiency of corporate property liable to be seized on execution, the individual property of a shareholder, to the amount of his stock, was made liable to be seized on execution issued upon a judgment recovered against the corporation. This statute was afterwards repealed. It will be noticed that the original charter designated the property liable to be seized on execution against the company; the repealing statute withdrew a portion of this property, or, in other words, exempted a portion of this property from execution, although all the property owned by the corporation was still left liable to seizure and sale. In Hawthorne v. Calef1 (1864), the validity of this repealing statute was denied. Mr. Justice Nelson said, while delivering the opinion of the court: 2 "There is another view of the case which we think equally conclusive. This view rests upon a principle decided in Bronson v. Kinzie, and the several subsequent cases of this class. . . Applying the principle of this class of cases to the present one, by the clause in the charter subjecting the property of the stockholder, he becomes liable to the creditor to the extent of his stock. The creditor had this security when the debt was contracted with the company, over and above its responsibility. This remedy he repealing act has not merely modified to the prejudice of the creditor, but has altogether abolished, and thereby impaired the obligation of his contract with the company." This

1 2 Wallace's R. 10.

2 Ibid. 23.

aecision, and this reasoning of the court cover the general case under discussion. If all the property of a debtor was liable to execution when the contract was entered into, then the creditor had this security of the entire property. Removing a portion of this property from its liability to execution, does not merely modify the remedy of the creditor in respect to the property thus removed, but absolutely destroys it, and therefore impairs the whole obligation of the contract.

CHAPTER V.

THE EXECUTIVE POWERS OF THE UNITED STATES GOVERNMENT

§ 628. In considering the amount and nature of the author ity committed by the people of the United States to the national government, we are now brought to an examination of the powers and functions of the Executive department. The provisions of the Constitution which specially concern this department are grouped in Article II., as follows: Section I. declares that "The executive power shall be vested in a President of the United States of America," and proceeds to describe the manner of choosing the President and VicePresident; the eligibility of persons to those offices; the terms of office; and the proceedings in case of the death, removal, or other disability of the President. Section II. provides that, "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present conrur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: But the Congress may by law vest the appointment

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