History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
At this point, the kindred topic of the obligation of contracts
presented itself to the mind of Rufus King, suggested doubtless by a
provision in the Ordinance then recently passed by Congress for the
government of the Northwestern Territory.[303] The idea of a special
restraint on legislative power, for the purpose of rendering inviolate
the obligation of contracts, appears to have originated with Nathan
Dane, the author of that Ordinance. It was not embraced in the resolve
of 1784, reported by Mr. Jefferson, which contained the first scheme
adopted by Congress for the establishment of new States in the
Northwestern Territory; and it first appears in our national
legislation in the Ordinance of 1787. Its transfer thence into the
Constitution of the United States was a measure of obvious expediency,
and indeed of clear necessity. In the Ordinance, Congress had
provided a system of fundamental law, intended to be of perpetual
obligation, for new communities, whose legislative power was to be
moulded by certain original maxims of assumed justice and right. The
opportunity thus afforded for shaping the limits of political
sovereignty according to the requirements of a preconceived policy,
enabled the framers of the Ordinance to introduce a limitation, which
is not only peculiar to American constitutional law, but which, like
many features of our institutions, grew out of previous abuses.
In the old States of the Confederacy, from the time when they became
self-governing communities, the power of a mere majority had been
repeatedly exercised in legislation, without any regard to its effect
on the civil rights and remedies of parties to existing contracts. The
law of debtor and creditor was not only subjected to constant changes,
but the nature of the change depended in many of the States upon the
will of the debtor class, who formed the governing majority. So
pressing were the evils thus engendered, that, when the framers of the
Ordinance came to provide for the political existence of communities
whose institutions they were to dictate, they determined to impose an
effectual restraint on legislative power; and they accordingly
provided, in terms much more stringent than were afterwards employed
in the Constitution, that no law should have effect in the Territory
which should in any manner whatever interfere with or affect private
contracts or engagements previously made.[304]
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