If, now, it be asked, what is this constitutional "obligation of
contracts," which the States are forbidden to impair, the answer is,
that it is, and necessarily must be, the _natural_ obligation; or that
obligation, which contracts have, on principles of natural law, and
natural justice, as distinguished from any arbitrary or unjust
obligation, which lawmakers may assume to create, and attach to
contracts.
This natural obligation is the only _one_ "obligation" which _all_
obligatory contracts can be said to have. It is the only _inherent_
"obligation," that any contract can be said to have. It is recognized
all over the world--at least as far as it is known--as the one only
_true_ obligation, that any, or all, contracts can have. And, so far as
it is known--it is held valid all over the world, except in those
exceptional cases, where arbitrary and tyrannical governments have
assumed to annul it, or substitute some other in its stead.
The constitution assumes that this _one_ "obligation of contracts,"
which it designs to protect, is the natural one, because it assumes that
it existed, _and was known_, at the time the constitution itself was
established; and certainly no _one_ "obligation," _other than the
natural one_, can be said to have been known, as applicable to all
obligatory contracts, at the time the constitution was established.
Unless, therefore, the constitution be presumed to have intended the
natural "obligation," it cannot be said to have intended any _one_
"obligation" whatever; or, consequently, to have forbidden the violation
of any _one_ "obligation" whatever.
It cannot be said that "the obligation," which the constitution designed
to protect was any arbitrary "obligation," that was unknown at the time
the constitution was established, but that was to be created, and made
known afterward; for then this provision of the constitution could have
had no effect, until such arbitrary "obligation" should have been
created, and made known. And as it gives us no information as to how, or
by whom, this arbitrary "obligation" was to be created, or what the
obligation itself was to be, or how it could ever be known to be the one
that was intended to be protected, the provision itself becomes a mere
nullity, having no effect to protect any "obligation" at all.
It would be a manifest and utter absurdity to say that the constitution
intended to protect any "obligation" whatever, unless it be presumed to
have intended some particular "obligation," _that was known at the
time_; for that would be equivalent to saying that the constitution
intended to establish a law, of which no man could know the meaning.
But this is not all.
The right of property is a natural right. The only real right of
property, that is known to mankind, is the natural right. Men have also
a natural right to convey their natural rights of property from one
person to another. And there is no means known to mankind, by which this
_natural_ right of property can be transferred, or conveyed, by one man
to another, except by such contracts as are _naturally_ obligatory; that
is, naturally capable of conveying and binding the right of property.
All contracts whatsoever, that are naturally capable, competent, and
sufficient to convey, transfer, and bind the natural right of property,
are naturally obligatory; and really and truly do convey, transfer, and
bind such rights of property as they purport to convey, transfer, and
bind.
All the other modes, by which one man has ever attempted to acquire the
property of another, have been thefts, robberies, and frauds. But these,
of course, have never conveyed any real rights of property.
To make any contract binding, obligatory, and effectual for conveying
and transferring rights of property, these three conditions only are
essential, _viz._, 1. That it be entered into by parties, who are
mentally competent to make reasonable contracts. 2. That the contract be
a purely voluntary one: that is, that it be entered into without either
force or fraud on either side. 3. That the right of property, which the
contract purports to convey, be such an one as is naturally capable of
being conveyed, or transferred, by one man to another.
Subject to these conditions, all contracts whatsoever, for conveying
rights of property--that is, for buying and selling, borrowing and
lending, giving and receiving property--are naturally obligatory, and
bind such rights of property as they purport to convey.
Subject to these conditions, all contracts, for the conveyance of rights
of property, are recognized as valid, all over the world, by both
civilized and savage man, except in those particular cases where
governments arbitrarily and tyrannically prohibit, alter, or invalidate
them.
This _natural_ "obligation of contracts" must necessarily be presumed to
be the one, and the only one, which the constitution forbids to be
impaired, by any State law whatever, if we are to presume that the
constitution was intended for the maintenance of justice, or men's
natural rights.
On the other hand, if the constitution be presumed not to protect this
_natural_ "obligation of contracts," we know not _what_ other
"obligation" it did intend to protect. It mentions no other, describes
no other, gives us no hint of any other; and nobody can give us the
least information as to what other "obligation of contracts" was
intended.
It could not have been any "obligation" which the _State_ lawmakers
might arbitrarily create, and annex to _all_ contracts; for this is what
no lawmakers have ever attempted to do. And it would be the height of
absurdity to suppose they ever will invent any _one_ "obligation," and
attach it to _all_ contracts. They have only attempted either to annul,
or impair, the natural "obligation" of _particular_ contracts; or, _in
particular cases_, to substitute other "obligations" of their own
invention. And this is the most they will ever attempt to do.