instalments. The apprentices were then declared free by the local governor and council. The defendant refused to pay the two last instalments. The suit was brought to recover them. The court held that the plaintiff was entitled to judgment, "though the legislature had determined the apprenticeship before they became due." Lord Chief Justice Denman said: "My Brother Weightman asked, during the argument, what would have been the result, if, at the end of a year, the services had been determined by the act of God; and to this no sufficient answer was given. . . The plaintiff's right vested when the bargain was made. The subsequent interference of the colonial legislature does not prevent his recovering what was then stipulated for."

Williams, Justice, said: "The whole question is, who shall bear the loss occasioned by a vis major? and that depends much upon the question, who was the proprietor when that loss was occasioned? The property in the services of these laborers had been transferred to the defendant. Then the question is analogous to those which often arise in cases of loss by fire; as whether the goods were in transitu or the transit was ended. If the property had passed, and the residue of it was destroyed by a vis major, the loss must fall upon the proprietor of the thing, namely, of the services during the unexpired term." The other justices expressed themselves to the same effect, and the judgment was unanimously given.

If all the buildings upon leasehold premises be destroyed by fire, the lessee is nevertheless liable for the full amount of the rent during the residue of the term. Baker v. Holtpzaffell, 4 Taunt., 45. And if he has covenanted to repair, he must also rebuild. Phillips v. Stevens, 16 Mass., 238. So, if a fire occur after the contract of sale, but before the conveyance is executed, the loss must be borne by the buyer. Sugden on Vendors, 291. All contracts are inherently subject to the paramount power of the sovereign, and the exercise of such power is never understood to involve their violation, and is not within that provision of the national constitution which forbids a state to pass laws impairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself. West River Bridge Co. v. Dix, 6 How., 532, 536 (§§ 2188-90, infra). Such also is the rule of the French law and such was the Roman law. The seller is not bound to warrant the buyer against acts of mere force, violence and casualties, nor against the act of the sovereign. 1 Domat., part 1, book 1, tit. 2, § 10, paragraph 4. "After the bargain is completed the purchaser stands to all losses." Digest 2, 14, 77, Cooper's Justinian, 615. The case is one in which the maxim applies, Res perit suo domino. Meredith's Emerigon, 419; Paine v. Meller, 6 Ves. Jr., 349.

§ 1640. The abolition of slavery did not extinguish contracts founded on that

relation.

It has been earnestly insisted that contracts for the purchase and sale of slaves are contrary to natural justice and right, and have no validity unless sustained by positive law; that the right to enforce them rests upon the same foundation, and that when the institution is abolished all such contracts and the means of their enforcement, unless expressly saved, are thereby destroyed. Slavery was originally introduced into the American colonies by the mother country, and into some of them against their will and protestations. In most, if not all, of them, it rested upon universally recognized custom, and there were no statutes legalizing its existence more than there were legalizing the tenure of any other species of personal property. Though contrary to the law of nature it was recognized by the law of nations. The atrocious traffic in human

beings, torn from their country to be transported to hopeless bondage in other lands, known as the slave trade, was also sanctioned by the latter code. 1 Wildman's Internat. Law, 70; Dana's Wheat., 199; The Antelope, 10 Wheat., 67; Le Louis, 2 Dodson, 210.

Where the traffic was carried on by the subjects of governments which had forbidden it, a different rule was applied. The Amedie, Acton, 240; The Diana, 1 Dodson, 95; The Fortuna, id., 81. Humane and just sentiments upon the subject were of slow growth in the minds of publicists. 1 Phillmore's Law of Nations, 316. The institution has existed largely under the authority of the most enlightened nations of ancient and modern times. Wherever found, the rights of the owner have been regarded there as surrounded by the same sanctions and covered by the same protection as other property. Le Louis, 2 Dodson, 250. The British government paid for the slaves carried off by its troops from this country, in the war of 1812, as they did for other private property in the same category. Lawrence's Wheat., 496. The constitution of the United States guarantied the return of persons "held to service or labor in one state under the laws thereof, escaping into another." "The object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves as property in every state in the Union, into which they might escape." Historically it is known that without this provision the constitution would not have been adopted and the Union could not have been formed. Prigg v. Pennsylvania, 16 Pet., 611.

§ 1641. Vested rights cannot be destroyed by implication. A vested right of action for purchase money of a slave is not impaired by subsequent emancipation of the slave.

But without considering at length the several assumptions of the proposition, it is a sufficient answer to say that when the thirteenth amendment to the constitution of the United States was adopted, the rights of the plaintiff in this action had become legally and completely vested. Rights acquired by a deed, will or contract of marriage, or other contract executed according to statutes subsequently repealed, subsist afterwards, as they were before, in all respects as if the statutes were still in full force. This is a principle of universal jurisprudence. It is necessary to the repose and welfare of all communities. A different rule would shake the social fabric to its foundations and let in a floodtide of intolerable evils. It would be contrary to "the general principles of law and reason," and to one of the most vital ends of government. Calder v. Bull, 3 Dal., 38s (§§ 582-599, supra). The doctrines of the repeal of statutes, and the destruction of vested rights by implication, are alike unfavored in the law. Neither is to be admitted unless the implication is so clear as to be equiv alent to an explicit declaration. Every doubt should be resolved against a construction so fraught with mischiefs. There is nothing in the language of the amendment which in the slightest degree warrants the inference that those who framed or those who adopted it intended that such should be its effect. It is wholly silent upon the subject. The proposition, if carried out in this case, would, in effect, take away one man's property and give it to another. And the deprivation would be "without due process of law." This is forbidden by the fundamental principles of the social compact, and is beyond the sphere of the legislative authority both of the states and the nation. Taylor v. Porter, 4 Hill, 146; Wynehamer v. The People, 3 Kern., 394; Wilkinson v. Leland, 2 Pet., 658. What would be the effect of an amendment of the national constitution reaching so far if such a thing should occur - it is not necessary to

consider, as no such question is presented in the case before us. Many cases have been decided by the highest state courts where the same questions arose which we have been called upon to consider in this case. In very nearly all of them the contract was adjudged to be valid, and was enforced. They are too numerous to be named. The opinions in some of them are marked by great ability.

Whatever we may think of the institution of slavery viewed in the light of religion, morals, humanity, or a sound political economy,- as the obligation here in question was valid when executed, sitting as a court of justice, we have no choice but to give it effect. We cannot regard it as differing in its legal efficacy from any other unexecuted contract to pay money made upon a sufficient consideration at the same time and place. Neither in the precedents and principles of the common law, nor in its associated system of equity jurispru dence, nor in the older system known as the civil law, is there anything to warrant the result contended for by the defendants in error. Neither the rights nor the interests of those of the colored race lately in bondage are affected by the conclusions we have reached. This opinion decides nothing as to the effect of President Lincoln's emancipation proclamation. We have had no occasion to consider that subject.

Judgment reversed, and the cause remanded to the circuit court with directions to proceed in conformity to this opinion.

The CHIEF JUSTICE dissented.

WALKER v. WHITEHEAD.

(16 Wallace, 314-318. 1872.)

ERROR to the Supreme Court of Georgia.
Opinion by MR. JUSTICE SWAYNE.

STATEMENT OF FACTS.-The case, as it appears in the record, is as follows: On the 1st of January, 1870, the plaintiff in error instituted this suit against the defendant in error upon a promissory note, made by the latter to the former, dated March 28, 1864, for $7,219.47, payable on the 19th of March then next ensuing. The defendant interposed two pleas: 1st. That after the maturity of the note he had tendered payment in Confederate treasury notes. 2d. That he was a loser by the result of the late war against the United States of one hundred negroes worth $50,000, and of Confederate securities of the value of $20,000; that he was a citizen of the Confederate States who waged and carried on that war, and that he pleads those losses as an offset to the demand of the plaintiff to the amount of the principal and interest of that demand.

When the case was called on the calendar the defendant moved the court to dismiss it, because the plaintiff had not filed an affidavit of the payment of the taxes upon the note as required by the act of the legislature of Georgia of the 13th of October, 1870. The plaintiff objected upon several grounds. The court overruled his objection, and dismissed the case. The plaintiff thereupon removed it to the supreme court of the state. That court affirmed the judg ment of the court below.

The first and second sections of the act referred to are as follows: "Section 1. That in all suits pending, or hereafter brought, in or before any court of the state, founded upon any debt or contract or cause of action made or implied before the 1st June, 1865, or upon any other debt or contract in renewal

thereof, it shall not be lawful for the plaintiff to have a verdict or judgment in his favor, unless he has made it clearly to appear before the tribunal trying the same that all legal taxes chargeable by law upon the same have been duly paid for each year since the making or implying of said debt or contract. Section 2. In any suit now pending, or hereafter brought, it shall be the duty of the plaintiff, within six months after the passage of this act, if the suit be pending, and at the filing of the writ, if the suit be hereafter brought, to file with the clerk of the court of justice an affidavit, if the suit was founded on any debt or contract as described in section 1, that all legal charges chargeable by law upon such debt or contract have been duly paid, or the income thereon for each year since the making of the same, and that he expects to prove the same upon the trial; and, upon failure to file such affidavit as herein required, said suit shall, on motion, be dismissed."

The fourth section declares it to be a condition precedent to a recovery that "the said debt has been regularly given in for taxes, and the taxes paid." The fifth section provides, in respect of judgments already rendered, that no levy or sale shall be made unless an affidavit be made that all taxes "have been duly paid from the time of making said contract to the time of attaching the affidavit." The sixth section provides that in all cases of indebtedness of this class the defendant may offset "any losses he may have suffered by, or in consequence of, the late war against the United States," whether the said losses "be from the destruction or depreciation of property." The seventh section declares that these damages shall not be considered as "too remote or speculative, if it appear that they were fairly and legitimately produced, directly or indirectly, by said war or the results thereof." The ninth section provides that these losses by the war may be offset against judgments already rendered. The fourteenth section provides that, as to such debts due to widows and minors, they are to be settled "upon the principles of equity, taking into consideration the relative loss of property sustained by the plaintiff and defendant." The fifteenth section provides that the provisions of the fourteenth are not to apply where the defendant is in possession of the property for the purchase of which the said contract was entered into, with this proviso: that "the defendant may elect to give up the property in his possession for which such contract was entered into, and such election shall be the full discharge of such indebtedness."

§ 1642. A law requiring payment of taxes on antecedent contracts as a condition to a recovery is void.

The contract here in question is within the predicate of this act. It was made more than six years before the act was passed. The act was retrospective, denounced a penalty not before prescribed for the non-payment of taxes, and, if such delinquency had existed for a single year, confiscated the debt by making any remedy to enforce payment impossible. The denunciation and the penalty came together. There was no warning, and there could be no escape. The purpose of the act was plainly not to collect back taxes,- that was neither asked nor permitted as a means of purgation,- but to bar the debt and discharge the debtor. The act is not an ex post facto law only, because that phrase, in its legal sense, is confined to crimes and their punishment. The constitution of the United States declares that no state shall pass any "law impairing the obligation of contracts."

These propositions may be considered consequent axioms in our jurisprudence: The laws which exist at the time and place of the making of a con

tract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge and enforcement. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guarantied by the constitution against impairment.

§ 1643. Obligation of contracts defined. The remedy may be changed.

The obligation of a contract "is the law which binds the parties to perform their agreement." Any impairment of the obligation of a contract-the degree of impairment is immaterial — is within the prohibition of the constitution. The states may change the remedy, provided no substantial right secured by the contract is impaired. Whenever such a result is produced by the act in question, to that extent it is void. The states are no more permitted to impair the efficacy of a contract in this way than to attack its vitality in any other manner. Against all assaults coming from that quarter, whatever guise they may assume, the contract is shielded by the constitution. It must be left with the same force and effect, including the substantial means of enforcement, which existed when it was made. The guaranty of the constitution gives it protection to that extent. Von Hoffman v. City of Quincy, 4 Wall., 535. The effect of these propositions upon the judgment before us requires but a single remark. A clearer case of a law impairing the obligation of a contract, within the meaning of the constitution, can hardly occur.

The judgment of the supreme court of Georgia is reversed, and the cause will be remanded to that court with directions to enter a judgment of reversal, and then to proceed in conformity to this opinion.

GORDON v. SOUTH FORK CANAL COMPANY.

(Circuit Court for California: 1 McAllister, 513-522. 1859.)

Opinion by MCALLISTER, J.

STATEMENT OF FACTS.- To the bill exhibited in this case a demurrer was filed; and it was sustained by the court for want of proper averments to give jurisdiction, with liberty to amend. The complainant has done so; and one of the defendants, D. K. Newell, has filed a plea which raises an issue as to the validity of the lien to enforce which is one of the objects of the bill. The first and preliminary objection to the argument of this plea is, that the issue now raised was disposed of by the decision on the demurrer. The court does not so consider, as its action on it was limited to the question of jurisdiction. Again, the allegation in the bill was general; it was, that notice of the lien was recorded according to law. This general averment on the argument of the demurrer was taken as true. The plea now filed sets forth the notice, and specifies wherein the alleged invalidity exists. The court cannot consider the decision on the demurrer as precluding the defendant from setting up this defense in form of a plea.

The grounds on which it rests are, 1st. That by the act of 12th April, 1850 (Comp. Laws, 808), no lien was given except upon buildings and wharves; and this was the only law in force at the date of the contract with Gordon & Kenyon. The bill in this case seeks to enforce a lien upon a canal.

2d. That the act of 17th May, 1853 (Comp. Laws, 811), was passed subsequent to the date of the contract, and after most of the work done by the complainant had been performed. This act was prospective, and could not