As further evidence of the general sense of mankind, as to the practical
necessity there is that all men's _important_ contracts, especially
those of a permanent nature, should be both written and signed, the
following facts are pertinent.
For nearly two hundred years--that is, since 1677--there has been on the
statute book of England, and the same, in substance, if not precisely in
letter, has been re-enacted, and is now in force, in nearly or quite all
the States of this Union, a statute, the general object of which is to
declare that no action shall be brought to enforce contracts of the more
important class, _unless they are put in writing, and signed by the
parties to be held chargeable upon them_.[d]
The principle of the statute, be it observed, is, not merely that
written contracts shall be signed, but also that all contracts, except
those specially exempted--generally those that are for small amounts,
and are to remain in force but for a short time--_shall be both written
and signed_.
The reason of the statute, on this point, is, that it is now so easy a
thing for men to put their contracts in writing, and sign them, and
their failure to do so opens the door to so much doubt, fraud, and
litigation, that men who neglect to have their contracts--of any
considerable importance--written and signed, ought not to have the
benefit of courts of justice to enforce them. And this reason is a wise
one; and that experience has confirmed its wisdom and necessity, is
demonstrated by the fact that it has been acted upon in England for
nearly two hundred years, and has been so nearly universally adopted in
this country, and that nobody thinks of repealing it.
We all know, too, how careful most men are to have their contracts
written and signed, even when this statute does not require it. For
example, most men, if they have money due them, of no larger amount than
five or ten dollars, are careful to take a note for it. If they buy even
a small bill of goods, paying for it at the time of delivery, they take
a receipted bill for it. If they pay a small balance of a book account,
or any other small debt previously contracted, they take a written
receipt for it.
Furthermore, the law everywhere (probably) in our country, as well as in
England, requires that a large class of contracts, such as wills, deeds,
etc., shall not only be written and signed, but also sealed, witnessed,
and acknowledged. And in the case of married women conveying their
rights in real estate, the law, in many States, requires that the women
shall be examined separate and apart from their husbands, and declare
that they sign their contracts free of any fear or compulsion of their
husbands.
Such are some of the precautions which the laws require, and which
individuals--from motives of common prudence, even in cases not required
by law--take, to put their contracts in writing, and have them signed,
and, to guard against all uncertainties and controversies in regard to
their meaning and validity. And yet we have what purports, or professes,
or is claimed, to be a contract--the Constitution--made eighty years
ago, by men who are now all dead, and who never had any power to bind
_us_, but which (it is claimed) has nevertheless bound three generations
of men, consisting of many millions, and which (it is claimed) will be
binding upon all the millions that are to come; but which nobody ever
signed, sealed, delivered, witnessed, or acknowledged; and which few
persons, compared with the whole number that are claimed to be bound by
it, have ever read, or even seen, or ever will read, or see. And of
those who ever have read it, or ever will read it, scarcely any two,
perhaps no two, have ever agreed, or ever will agree, as to what it
means.
Moreover, this supposed contract, which would not be received in any
court of justice sitting under its authority, if offered to prove a debt
of five dollars, owing by one man to another, is one by which--_as it is
generally interpreted by those who pretend to administer it_--all men,
women and children throughout the country, and through all time,
surrender not only all their property, but also their liberties, and
even lives, into the hands of men who by this supposed contract, are
expressly made wholly irresponsible for their disposal of them. And we
are so insane, or so wicked, as to destroy property and lives without
limit, in fighting to compel men to fulfill a supposed contract, which,
inasmuch as it has never been signed by anybody, is, on general
principles of law and reason--such principles as we are all governed by
in regard to other contracts--the merest waste paper, binding upon
nobody, fit only to be thrown into the fire; or, if preserved, preserved
only to serve as a witness and a warning of the folly and wickedness of
mankind.