The Great Speeches and Orations of Daniel Webster eBook

This eBook from the Gutenberg Project consists of approximately 1,778 pages of information about The Great Speeches and Orations of Daniel Webster.

The Great Speeches and Orations of Daniel Webster eBook

This eBook from the Gutenberg Project consists of approximately 1,778 pages of information about The Great Speeches and Orations of Daniel Webster.

But there are other cogent and more specific reasons against considering the law as part of the contract. (1.) If the law be part of the contract, it cannot be repealed or altered; because, in such case, the repealing or modifying law itself would impair the obligation of the contract.  The insolvent law of New York, for example, authorizes the discharge of a debtor on the consent of two thirds of his creditors.  A subsequent act requires the consent of three fourths; but if the existing law be part of the contract, this latter law would be void.  In short, nothing which is part of the contract can be varied but by consent of the parties; therefore the argument runs in absurdum; for it proves that no laws for enforcing the contract, or giving remedies upon it, or any way affecting it, can be changed or modified between its creation and its end.  If the law in question binds one party on the ground of assent to it, it binds both, and binds them until they agree to terminate its operation. (2.) If the party be bound by an implied assent to the law, as thereby making the law a part of the contract, how would it be if the parties had expressly dissented, and agreed that the law should make no part of the contract?  Suppose the promise to have been, that the promisor would pay at all events, and not take advantage of the statute; still, would not the statute operate on the whole,—­on this particular agreement and all? and does not this show that the law is no part of the contract, but something above it? (3.) If the law of the place be part of the contract, one of its terms and conditions, how could it be enforced, as we all know it might be, in another jurisdiction, which should have no regard to the law of the place?  Suppose the parties, after the contract, to remove to another State, do they carry the law with them as part of their contract?  We all know they do not.  Or take a common case.  Some States have laws abolishing imprisonment for debt; these laws, according to the argument, are all parts of the contract; how, then, can the party, when sued in another State, be imprisoned contrary to the terms of his contract? (4.) The argument proves too much, inasmuch as it applies as strongly to prior as to subsequent contracts.  It is founded on a supposed assent to the exercise of legislative authority, without considering whether that exercise be legal or illegal.  But it is equally fair to found the argument on an implied assent to the potential exercise of that authority.  The implied reference to the control of legislative power is as reasonable and as strong when that power is dormant, as while it is in exercise.  In one case, the argument is, “The law existed, you knew it, and acquiesced.”  In the other it is, “The power to pass the law existed, you knew it, and took your chance.”  There is as clear an assent in one instance as in the other.  Indeed, it is more reasonable and more sensible to imply a general assent to all the laws of society,

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The Great Speeches and Orations of Daniel Webster from Project Gutenberg. Public domain.