
    James M. Rutland vs. James Copes and others. William M. Thomas vs. Mary Raymond.
    A sealed note for $2,500, dated 1st June, 1864, and payable twelve months after date, “ in such currency as can immediately be made available in payment of the old debts of the estate of ‘P,’ dollar for dollar,” held to be within the Ordinance of September 1865, providing “That in every action arising on any contract whether under seal or parol, written or oral, made between the 1st January, 1862, and the 15th May, 1865, it shall be lawful for either party to the action to introduce testimony showing the true value and real character of the consideration of such contract at the time it was made, so that regard being had to the particular circumstances of each case, such verdict, or decree, may be rendered as will effect substantial justice between the parties.”
    
      Held, also, that the ordinance did not impair the obligation of contracts, and therefore was not in conflict with the provision of the Constitution of the United States that “no State shall pass any law impairing the obligation of contracts.”
    
      Held, further, that a sealed note for $7,000 dated the 25th August, 1863, and payable “six months after the ratification of peace with the United States, or before,” at payee’s option, with interest; was within the provision of the ordinance.
    The case of Rutland vs. Oopes and others, was an action at law, tried before Munro, J., at Fairfield, Spring Term, 1867.
    The report of his Honor, the presiding Judge, is as follows:
    “The plaintiff’s action was in covenant upon the following instrument:
    “$2,500.00.
    
      “ Twelve months after date, with interest from date, we or either of us promise to pay James M. Eutland, (Executor' of the will of N. A. Peay, deceased,) tbe sum of twenty-five hundred dollars. This note to be paid in such currency as can immediately be made available in the payment of the old debts of the estate of Peay, dollar for dollar. Witness our hands and seals, this first day of June, 1864.
    (Signed) JAMES Copes, [l. s.]
    “ JOHN G-. Rabb, [l. s.]
    “ James B. McOants, [l. s.]
    “The defendants specially-pleaded the ordinance of the convention passed 27th September, 1865, entitled ‘An ordinance to declare in force the Constitution and laws heretofore in force in this State, and the Acts official, public and private done, and appointments and elections made under the authority of the same.’
    “ The defendants offered witnesses to prove the character of the consideration and the value thereof under the ordinance.
    “ I refused to allow the defendants to enter into this proof, holding that such a contract as the one made by the parties in the instrument sued on, was not embraced within the provisions of the ordinance; and that it was not the design of the ordinance to interfere with a contract which like this, provided a specific mode of payment.
    “No other defense being offered, the jury, under my instructions, found for the plaintiff $2,997.30, the sum stated in the cause of action, with interest to time of trial.
    “The defendants -give notice that they will move the Court of Appeals for a new trial on the ground :
    “ That the ordinance of the convention pleaded, did embrace within its provisions, the contract contained in the instrument sued on, and that consequently the evidence excluded was admissible.”
    
      Bion, (in Court of Appeals,) for appellant.
    
      
      Cotemporanea expositio est fortissima in lege. .
    
    A report of the debates, and of the different stages through which a statute passed is the best contemporaneous interpretation.
    The different stages through which the ordinance passed are given in Journal of the Convention of 1865, pages 68, 125, 126,.128 and 177.
    This history of the ordinance shows conclusively that contracts “by their terms payable in gold, or in other specific manner” were intended to be included (or not excepted) in the provisions of the ordinance as passed.
    DbcisioN oe Appeal Court.
    Dunkin, C. J. In the judgment of this Court the contract, which is the subject matter of this suit, falls within the provisions of the ordinance of the convention of 27th September, 1865.
    The validity of the ordinance being impeached by the plaintiff as inconsistent with the Constitution of the United States, as well as for other reasons, the case is referred to the Court of Errors.
    
      Thomas vs. Raymond was a suit in equity, heard at Greenville, July, 1866, before his Honor, Chancellor Johnson, whose decree is as follows:
    JOHNSON, Ch. On the 25th day of August, 1863, the complainant sold and conveyed to the defendant, a house and lot in the town of Greenville, for the sum of seven thousand dollars, payable six months after the ratification of peace with the United States, or before, at his option, with interest on the same, payable annually, from the first day of September, in the year aforesaid. And to secure the payment of the same, the defendant, on the day first aforesaid, gave her sealed note for tbe same and a mortgage of tbe bouse and lot to tbe complainant. The whole of the principal, and a considerable portion of tbe interest, if not the whole, are still unpaid.
    On the 28th day of May, 1866, the complainant filed his bill for the purpose of foreclosing the mortgage and enforcing the payment of the sealed note. The defendant, in her answer, interposed two objections to the prayer of the bill. First: That the law usually known as the Stay Law was in existence at the time the contract was made, and was continued from year to year up to the time of filing the bill; and that under the provisions of the same, the complainant had no right to institute proceedings for the collection of money. I decided that, inasmuch as the Stay Law, which was in existence at the time the contract was made, expired, by tbe terms of its own limitation, on the adjournment of the next session of the General Assembly of the State thereafter, the case stood upon the' same footing that it would have done had the contract been made prior to December, 1861; and that it was governed by the decision in the case of The State vs. Garew, (13 Rich. 498.)
    And, secondly: That by the provisions of the ordinance of the convention, adopted on the 27th day of September, 1865, the defendant was not liable to pay the whole amount for which the sealed note and mortgage were given, but only the true value of the house and lot at the time the purchase was made, it having been done within the periods prescribed by the ordinance. The complainant insisted that this defence could not prevail, for two reasons — first, because the ordinance was void in this, that it impaired the obligation of contracts; and secondly, because, by the terms of the sealed note, it was apparent that it was.the intention of the parties that it should be paid in good money, or that the complainant should have the right to wait until six months after the termination of the war, and demand sucb currency as might be in use at tbe time. I ruled, that the ordinance of the convention did not impair the obligation of contracts; but, on the contrary, enforced them, in accordance with their spirit and intention, by enlarging the rules of evidence in relation to the same ; and that, if the ordinance had not been adopted, the Courts would have been compelled to permit evidence to be introduced to show the true consideration of the contracts entered into between the designated periods, in order to prevent great injustice from being done; and that the price agreed to be paid for the house and lot was so much more than their true value, that I could not infer, from the terms of the sealed note, that the contract was not made upon the basis of Confederate money. And, consequently, I referred it to the Commissioner to ascertain and report what the true value of the house and lot was on the 25th of August, 1863, with leave to report any special matter; and during the term the Commissioner reported as follows, to wit:
    “A good many witnesses have been examined as to the cost of the lot and improvements, both before and since the war; as to its value in 1863, in Confederate money, and also in a good currency; and as to its relative value, compared with other lots in Greenville, sold during the same year, some for cash, (Confederate money,) and one payable after the war. The Commissioner finds it very difficult to ari’ive at any definite conclusion as to what was its real value at the time it was sold, on account of the conflicting testimony of the witnesses, men who ought to know the value of property, and the cost of building. Mr. Cline, a witness on the part of the complainant, thinks the improvements on tlu * must have cost $2,000, and this opinion is based upon estimates made recently. Mr. Arthur, another one of complainant’s witnesses, says he offered complainant, about the time of the fall of Fort Sumter, $2,500 for tbe place, and that be would have given $3,000, but complainant asked $4,000. This was for another party. Col. Goodlett, and other .witnesses of complainant, say the place was worth at least $3,000. These values were in 1861.
    ‘'Now, per contra: Mr. Hammett, a witness on the part of defendant, thinks the place was worth $1,500. Mr. David, another witness on same side, makes same estimate; and Mr. McKay, on the same side, says $2,000. This is the value of tbe present time.
    
      “ Now, as to the price witnesses put upon the property at the time it was sold, in Confederate money: Mr. Hammett says $3,000, Mr. David says the same. Mr. Good-lett says from $10,000 to $12,000. Mr. Arthur says from $12,000 to $13,000. How can the Commissioner reconcile these statements of opinion ?
    “Again, as to the relative value of the lot in question, compared to the Croft house, and brick house, (Robinson,) James Goodlett house, and McConnell house, which were sold in 1863. The testimony is, that the Croft house sold for $16,100; the brick house for $17,000; the James Good-lett house for $9,000; and the McConnell house for $5,500. Now, as to the relative value of the lot in question, as compared to the above houses and lots: First, take the testimony of Mr. Arthur, — he thinks, if put up, the Croft house would have sold for something more; would have made a difference of some $4,000 to $5,000; don’t think there would have been much difference if a party wanted for the use of his family. Col. Goodlett says he sold his house and lot for $12,000, which he offered to complainant for the note in suit; says the McConnell house was sold in 1862 for $4,500, payable after the war; that the same house was sold in 1863 for $5,500 cash, (Confederate money;) last house is on Main street, adjoining the business portion of the town; is a fine, large house; thinks it would bring twice as much as complainant’s; thinks complainant’s bouse is more marketable, and for his own use would rather have it; don’t think there is much difference between the house he sold and complainant’s; the McCon-' nell house was sold by Hill to McConnell, in Savannah. Thus it will be seen that there is as great a difference in the opinion of the witnesses, as to its value in Confederate money, as to its value both before and since the war.
    “ It is in evidence that the lot originally cost one Smith $900; that complainant paid Smith $1,250, and did a great deal of repairs.
    “ The Commissioner has concluded that when there is such a difference of opinion among the witnesses as to its value, that the only course left for him to pursue is to try and strike a medium course between them. Thus, Mr. Hammett says $1,500; Mr. David, $1,500; Mr. McKay, $2,000; Mr. Arthur, $3,000; Col. Gfoodlett, $3,000; and Mrs. Thruston, $3,000 to $3,500, making $14,000 to $15,-000, which, divided by six, will give as an average price of from $2,333.33 to $2,500. It is agreed by most of the witnesses, that the great demand for houses in 1863, on account of the influx of refugees, caused a considerable advance in the value of houses and lots in Greenville. Some think 25 per cent.; some more, some less. Let us put the advance at 25 per cent., and the average value of the lot at $2,400, a medium average value from the testimony of the witnesses, and we have $3,000 as the result. The Commissioner, therefore, recommends that the true value of the lot for which the sealed note of seven thousand dollars was given, was $3,000.”
    To this report various exceptions were filed by each party. The complainant excepts, first, because the ordinance of the convention, under which the commissioner acted, is of no validity, as it impairs the obligation of contracts, in violation of the Constitution of the United States. This exception I overrule, for the reasons hereinbefore stated. And, secondly, because “ the note and other testimony show that it was not based upon Confederate money, and ivas not to be paid in such currency, and was, therefore, the true value of said property, as agreed on by the parties.” The conversations of the defendant with Mrs. Thruston seem to establish the fact that the complainant was at some time — and most likely at the time the contract was entered into — unwilling to receive the purchase-money of the house and lot; but it does not appear, from any evidence before the Court, that it was because the note was ultimately to be paid in a currency which was not available at that time. Had the Confederate cause succeeded, and a treaty of peace been ratified, as was anticipated by the parties, as appears by the note, Confederate money would most probably have continued to be the currency of the country; and it is very doubtful if it would have been more valuable when the note became due than it was when it was given.
    The wrong to the defendant, who is a ladj over seventy years old, would be so great, to require her to pay the whole amount of the note in good money, that I could only be induced to decree it upon the most satisfactory proof that that was the original understanding between the parties, and that the defendant had been in no way imposed on. Taking the note and all the evidence submitted with the report, I am of the opinion that the purchase was made on the basis of Confederate money. The exception is, therefore, overruled.
    The third, fourth and fifth exceptions of the complainant insist that the commissioner erred in not fixing the true value of the house and lot at an amount higher than three thousand dollars. I am of the opinion that the report is not subject to the objection ; and the exceptions are, therefore, overruled.
    
      All the exceptions of the defendant insist that the estimate of the Commissioner, of the true value of the property at the time of the sale, was excessive, and not justified by the evidence. The testimony is very conflicting, and the commissioner adopted, no doubt, the proper course, in taking the average estimate as the true value of the property. Had the evidence been directed to the point of ascertaining the value of seven thousand dollars in Confederate money, in purchasing the ordinary productions of the country, at the time the purchase was made, I think a more satisfactory result might have been reached, and one that would-have been less liable to the objection made in complainant’s first exception.
    Several of the witnesses stated that, in consequence of the great demand for houses and lots by refugees, in 1863 and 1864, their values advanced; bat no witness attempts to say how much; and from an examination of the prices of such property, as proved before the commissioner, both before and during the war, it appears that they were less affected by the depreciation of the currency than any other species of property; and I think it was a mistake to ascribe their enhanced value, entirely or principally, to the demand for them. I think it would be more in accordance with the fact to say, that the depreciation in the value of houses and lots in Greenville was not as great as it would have been from the great demand for them by refugees, than to say that their values advanced. And I, therefore, think the commissioner erred in adding twenty-five per cent, on the average estimate of the property. The opinion of the Court is, after a careful consideration of all the evidence, that the true value of the house and lot, at the time of the sale, was two thousand five hundred dollars; and so much of the commissioner’s report as conflicts with this opinion is overruled.
    It is ordered and decreed, that it be referred to the commissioner to ascertain the amount due on the sealed note, reduced to two thousand five hundred dollars, and that all payments of interest in Confederate money be reduced iu the same proportion ; and that the parties be at liberty; at the foot of this decree, to take such orders as may be necessary to carry the same into execution, by foreclosing the mortgage, or otherwise.
    The complainant appealed, and moved the Court of Appeals to reverse the decree on the grounds :
    1. His Honor erred in decreeing that the note, in this case, secured by mortgage, was subject to the provisions of the ordinance of the convention.
    2. That the said ordinance is in violation of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts.
    3'. That his Honor erred in deciding that there was no appreciation of rents and the value of real estate in the village of Greenville, at the time the note was given, in consequence of the refugees and demand for such property.
    4. His Honor ought to have decreed for the full amount of the note, as it showed on its face that it was not to be paid in a depreciated currency.
    5. Admitting that the note was subject to the provisions of the ordinance of the convention, and that the said ordinance was valid, his Honor ought to have allowed the estimate of the commissioner as to the value of the house and lot and the increased value, in consequence of the demand for houses at that time in Greenville, as reported by the commissioner.
    
      This case was also referred to the Court of Errors, and the two cases were considered at the same time.
    
      Eton, for appellant,
    in Rutland vs. Oopes.
    
    The convention of 1865 a legal assemblage :
    1st. Because, however called, it was composed of delegates chosen by the legal voters of the State, nem. eon., and consequently when assembled it represented the people of the State.
    2d. Because although revolutionary, it was successful.
    3d. Because its “ work was acquiesced in by the people.” Kamper vs. Hawkins, 1 Vir. Oas. 28, and post.
    4th. Because it did not supplant a legally established government; but substituted anarchy.
    This objection cannot be taken in this Court; for this Court is to'a great extent the resultant of that convention. If the Court sustains the objection it dethrones itself.
    The plaintiff is estopped from making the objection; for by suing in a Court acting by authority of the convention, he has recognized at least the “potential legality ” of that convention. His objection is in the nature of a plea to the jurisdiction pleaded too late. He now asks this Court to decide that it has no power to make a decision.
    The ordinance not in conflict with the Constitution of the United States.
    "States Rights ” View.
    
    Ordinance of 20th December, 1860, abrogated the Constitution of the United States in South Carolina.
    This contract was entered into in 1864.
    Ordinance of 19th September, 1865, restored the Constitution of the United States; but the Ordinance of 27th September, 1865, was passed at the same convention, and hence contemporaneous in law.
    
      This contract, consequently, virtually made when the United States Constitution was not of force, and before it became of force; and therefore the Constitution of the United States “ does not extend ” to this contract, nor protect it. Sergt. Cons. Law, 352; Owens vs. Speed, 5 Wheat. 420.
    The Constitution of the Confederate States if in esse might be invoked.
    “ A nti States Rights ” View.
    
    By Ordinance of 20th December, 1860, and subsequent Acts, South Carolina placed herself in rebellion to the United States, and so continued until some time in 1865.
    All laws passed, and all contracts entered into in this interval were null and void, and illegal.
    This contract was entered into in 1864, and had no obligatory force except what was derived from the Constitution of South Carolina of 1861, and the Confederate Constitution, both of which “the creatures of rebellion,” and can now give no sanction.
    
      This contract has no obligatory effect except what is given it by the Ordinance of 27th September, 1865.
    This ordinance gives “ force, effect, and validity ” to “contracts” made in this interval, “as if the ordinance of secession bad not been passed,” and “ as if the same had been made during a time of peace; ” but with a proviso as to those made between 1st January, 1862, and 15th May, 1865. Journal of Con. 177.
    This want of obligatory force, in laws public and private passed, corporations created or continued, and contracts entered into during the war, recognized by the convention in their ordinances and the Constitution by them adopted. Vide, the whole Ordinance pp. 176, 177, Journal; Art. VIII. Const, (p. 150); Sec. 9, Art. IX. (p. 151): and that corporations are protected by Par. I, Sec. 10, Art. I. United States Constitution; Vide, Terrett et als. vs. Taylor et als., 9 Orancb, 52 ; Sergt. Con. L. 349.
    The plaintiff then asks this Court to declare unconstitutional the ordinance that gives his contract a status in Court; for he cannot avail himself of the ordinance without the proviso, and his contract then remains an alien to the Constitution of the United States, and in no way entitled to its protection.
    The conclusion then follows, that the ordinance in question did not impair the obligation of the contract sued on, because it had no legal obligations except what the convention of 1865 gave it by this ordinance, and did not until then come within the purview and under the protection of the Constitution of the United States.
    
      Robertson, for appellee,
    in Rutland vs. dopes.
    
    The defendant in this action having pleaded the ordinance of the convention, passed 27th of September, 1865, and proposing under it to introduce testimony to show "the true value and real character of the consideration of the contract at the time it was made,” the plaintiff replies : I. That the contract sued on is not within the ordinance ; II: That the ordinance is violative of the Constitution of the United States.
    The testimony proposed by defendants was, to show that the consideration of the contract was 500 bushels of corn, purchased at $5 per bushel, and to show the “true value” of the corn at the time of the contract, with the view to abating the'amount of the obligation.
    I. The contract, it is respectfully submitted, is neither within (1) the spirit nor (2) the letter of the ordinance.
    1. In the ascertaining of the true intent and meaning of a law, it is legitimate to inquire into the facts with reference to which it was enacted, and the mischief intended to be remedied by it.
    "What were the extraordinary circumstances which gave occasion for this ordinance, is at this day too well known to render necessary more than a brief allusion to them. During the period of the war, dating from early in 1862 until its close, the currency of the Confederate Government constituted the only currency of these States. "With rare exceptions, contracts were made with ■reference to it as a standard of value. It was a currency of dollars and cents —terms which were borrowed from the specie coinage which constituted the legal currency before the war. So generally did this currency come to be recognized, and so confidently did our people deal with it as an acknowledged standard of value, that contracts were entered into, written and oral, under seal and by parol, in which the consideration was expressed in dollars and cents, and obligations assumed for the payment of sums expressed in dollars and cents, without words to indicate what currency was intended. Incidental to the currency were bonds of different kinds; bonds payable in gold, bonds of what was known as the Cotton Loan, interest-bearing Treasury Notes, &c. With reference to these also, as standards of value, contracts were made. Property was sold, money lent, and other contracts made, the one party obligating himself to accept, and the other to make payments in bonds of this or that class, in treasury notes of this or that class, or in other kinds of securities, each exercising his judgment as to the probable increase or decrease in value of that in which payment was to be made.
    When the war ended, contracts of this character were found to exist without number; scarce a person whose interests were not more or less affected by them, directly or indirectly. Some- of these expressed an obligation to pay sums of money which, if exacted in gold or in the, currency of the United States, were vastly disproportionate to that which was in view when the contract was made. Others expressed an obligation to pay in bonds, or other government securities, or in Confederate treasury notes — all, now, valueless. On the one hand, creditors were found who claimed payment in specie, or in the currency of the United States. On the other hand, debtors were found who claimed the right to pay in the valueless currency or securities which were called for by. their contracts. It became a matter of general anxiety, and of much disquietude, as to how these matters were to be adjusted. So far as the contracts were in writing, inquiry as to the meaning of the contracts,, or the nature of the obligation, or testimony showing that the sums of money mentioned were intended as Confederate currency, was supposed to be precluded by the stern rule of law which forbids the introduction of parol testimony to contradict, vary or explain an unambiguous written instrument. Other rules of law there were, also, which as to certain of these contracts, forbade any inquiry into the consideration, with the view to showing its inadequacy, or to affect in any other manner the expressed intention of the parties.
    It was to remedy these embarrassments that the ordinance was passed — the embarrassments which sprang from the Confederate currency, and Confederate valuations. Its relation was extended back sufficiently far to cover the contracts' which were affected by this currency; and its remedy was an abrogation, as to such contracts, of those rules of law which hindered the inquiries necessary to the doing of justice between the parties.
    It is now submitted, that the contract in question is not within the spirit of the ordinance. It is not a contract in the making of which the Confederate currency or Oonfed-erate valuations in any manner entered as an element. It is not a contract which has become harsh in its operations, by reason of the destruction of any thing with reference to which it was made. It is a contract in which the parties designedly ignored the currency then prevailing, and the many fluctuating securities of the day — a contract, the terms, the meaning, the import of which were as fully understood then as now. So far as there was in it any uncertainty, it was an uncertainty which, by the express terms of the contract, was to be made certain by reference, not to the particular circumstances which existed at the time it was made, but to the circumstances as they should exist when the obligation matured. The contract, therefore, is not within any of the classes which the framers of the ordinance had in view'. There existed no reason why the convention should have legislated with reference to such a contract. It was not, in any respect, within the mischief intended to be remedied. The parties had themselves designedly placed it outside of the mischief which afterward ensued, and which the ordinance was intended to remedy. As held by his Honor, the Circuit Judge, "it was not the design of the ordinance to interfere with a contract of this character.”
    But it is argued by the defence, that it sufficiently appears from the history of the adoption of this ordinance, that contracts of this character were within its design. Any one at all familiar with the manner of legislating, would not feel authorized to draw from the Journal such conclusion. It nowhere appears that any vote was taken on the point whether contracts of this kind should or should not be embraced. This only appears: that the original proposition (Jour. Conv. p. 68) excepted from the ordinance contracts “not by their terms payable in gold, or in any other specified manner;” and that in the adoption of the ordinance, this original proposition was superseded by that now found in the ordinance. (Jour. Conv. p. 128.) It, however, by no means follows, even as a plausible inference, that the adoption of the substitute was intended to negative the exclusion from the ordinance of contracts “payable in gold, or in any other specified manner.” If that was what the convention intended, it would have sufficed to strike out the objectionable words. Instead, however, another distinct proposition was introduced — distinct in nearly all of its features. The two propositions presented different modes of attaining the same end; and it is apparent on the reading of the two, that there may have existed many reasons for preferring the substitute to the original. The latter proposed to declare certain rules by which, in all cases, a recovery was to be measured; the substitute proposed that the recovery in any given case should depend on its own “ particular circumstances.” Again, the original proposition excepted from the remedy all contracts which were, in terms, “payable in any specified manner.” This would have excluded from the remedial operation of the ordinance, all those contracts which were made payable in Confederate currency, in Confederate treasury notes, in Confederate bonds — the very class of contracts which the convention had it in view to reach — for these were contracts “payable in a specified mariner.” The more reasonable inference, therefore, from the cotemporaneous history is, that the original proposition was superseded, not because it expressed an exclusion of certain classes of contracts, but because, in making this exception, it shut out from the remedy much of the mischief intended to be reached, and was, in other respects, not sufficiently flexible to meet the varied and multiplex forms in which contracts had been shaped. The substitute, on the other hand, was more flexible ; and without indicating any class of contracts which were or were not to be within the ordinance, left subject to its provisions every contract to which an inquiry might be found necessary, in order “to effect substantial justice between the parties.”
    2. It is further submitted, that this contract does not fall within the letter of the ordinance.
    The position assumed by the defence is, that in every action arising on any contract made between the dates indicated, no matter what its character, the introduction of testimony to show “the true value and real character of the consideration,” is authorized by the ordinance; and that on an issue raised as to the introduction of such testimony, the Court is to look alone to the date of the contract.
    This, it is respectfully submitted, is a very imperfect interpretation of the ordinance; one which ignores not only the spirit and general scope and intent of the ordinance, but also the particular purpose which the introduction of such testimony was intended to subserve. In the text of the ordinance, this purpose is expressed to be, “ to effect substantial justice between the parties” — words which must be understood as qualifying the more general terms of the ordinance, and as restricting its operation to those actions in which the introduction of such testimony is necessary in “order to effect substantial justice between the parties.”
    It will be observed, that this ordinance is in derogation of some of the wisest and stablest principles of the common law. As such it is to be strictly limited in its operation so as to involve the least possible degree of departure from the common law consistent with its letter. These principles are as old as the common law itself. They exist for the maintenance and protection of private rights. Upon them rests, to a great extent, one’s security of property, and to a vast extent one’s security from unreasonable and vexatious litigation. It will further be observed, that the ordinance does not import a permanent change of the common law. It is provisional in its character; intended to meet a given condition of circumstances, to apply to a given class of cases; and its interpretation should be such as to reach alone those cases which fall within the class intended to be reached. For certain wise reasons, the rigidness" of the common law is relaxed; relaxed to effect that justice which a close adherence to the law would defeat. Beyond this, every consideration of policy demands that the departure should not go. "Where the reason applies, let the ordinance apply; where the reason does not apply, let the common law prevail. To do other than this, is to make that an engine of injustice which was intended to work out results of justice.
    With this qualification, clearly deduced from the text of the ordinance, its proper interpretation is: “That in every action arising on any contract made between the 1st January, 1862, and the 15th May, 1865, wherein it is necessary, in order to effect substantial justice between the parties, that testimony be introduced to show the true value and real character of the consideration of such contract at the time it was made, the introduction of such testimony by either party shall be lawful.”
    This interpretation, whilst it meets the remedial purposes of the ordinance, obviates the mischief which would result from its application to'contracts which were not within the mischief intended to be remedied. It limits the departure from the common law, to the demands of justice in each case. It submits to the judgment of the Court whether, upon view of the contract, it appears necessary that such testimony be introduced to enable the jury to do substantial justice; and it protects parties against the mischief of having valid and well considered contracts thrown open to the wild and capricious notions of juries, who,_ perchance, may be infected with a disregard of all obligations.
    Assuming this construction, the inquiry presented to his Honor the Circuit Judge, as to whether this contract was or was not within the ordinance, was an inquiry which involved not alone a reference to the date of the contract, but the consideration of the further point whether the contract was of a character to require the introduction of such testimony, in order to effect substantial justice. His decision below is a judgment on this latter point — “that such a contract as the one made by the parties in the instrument sued on, was not embraced within the provisions of the ordinance.”
    The question here arises, whether there was error in this decision.
    Looking to the contract, it will be seen that it is one in which the parties had carefully considered the circumstances which affected the contract at the time it was made; and in view of these circumstances and of future contingencies — each taking upon himself the chances of his own judgment — agreed as to time, amount ajid manner of payment. The one requiring that payment should be made in such funds as could be used for a named purpose, the other obligated himself to make payment in such funds. To the extent of $2,500, the debts of Peay’s estate were to be met by this demand, and to that the defendant obliged himself. The time for payment having arrived, and the defendant being called upon to make good his contract, asks that the consideration of the contract shall be inquired into — not for the purpose of ascertaining what the contract was; not for the purpose of showing that the consideration had reference to confederate currency ; not for the purpose of doing substantial justice as between himself and the plaintiff; but for the purpose of showing that, as it now turns out, he paid too much for his corn. Not pretending fraud, mistake or illegality — not alleging failure of consideration — he seeks to be relieved from what he considers a bad bargain, and to have a new contract declared for his benefit.
    It needs not to be argued, that substantial justice between parties is not to be effected by considering inadequacy of consideration, when there has been neither fraud nor mistake. If a party in June, 1864, pleased with the idea of purchasing corn at $5 per bushel, when in open market it was selling for from $20 to- $30 per bushel, and in consideration of indulgence, has agreed to make payment in June, 1865, in such funds as might then suit the vendor’s declared purposes, he must be understood to have carefully considered his agreement; and the fact that, as it now turns out, he made a bad bargain, presents no reason for absolving him from the obligation. Contracts of like character are of daily occurrence — contracts which work out most disastrously to the persons obligated, because of their inability to foresee all future contingencies; and yet it has never been held that the doing of “substantial justice between the parties” requires that in such cases the Court should undertake tp administer relief.
    II. The second point submitted by the plaintiff is, that this ordinance is in violation of the Constitution of the United States.
    The view of the ordinance already presented, if sustained by the Court, would render unnecessary the consideration of this question. It is an issue which the plaintiff is very much disinclined to raise. -The beneficent purpose of the ordinance is well known and very generally appreciated. So completely have the circumstances of the country been changed, and so entirely reversed are the conditions under which, and with reference to which, contracts were made, that it will not be rare to find those from which, but for the provisions of this ordinance, must result much of hardship and actual injustice — contracts to which a close adherence to the rules of law, must give an effect which was not the intention of the parties. For this reason, the ordinance addresses itself strongly to judicial as well' as to popular favor ; and for the same reason, the plaintiff, to avoid the calling of its constitutionality in question, bas urged the more earnestly an interpretation which, whilst leaving it operative on those contracts in which the mischief exists excludes from its operation those which are not so affected, •and which if brought within the ordinance, must render it the more obnoxious to the Constitution.
    The clause of the Constitution referred to, is that which declares that “no State shall pass any law impairing the obligation of contracts.”
    This Court in a recent case (State vs. Garew, 13 Rich. 498,) has had occasion to consider the question as to the meaning of this clause of the Constitution; and in the opinion of the Court, the decisions of the Supreme Court of the United States, in that case reviewed, are regarded as settling conclusively its construction. Any further reference to those decisions is deemed unnecessary.
    The principles deduced from the decisions are these:
    1. That by the “ obligation of contracts ” is meant the legal and not the moral obligation — the law which obliges the parties to the performance of a contract, embracing in this idea as well the law which is applicable to the contract itself, as that which pertains to the remedy for its enforcement.
    2. That any law “ impairs ” this obligation which renders the contract in itself less valuable or less enforcible, whether by changing its terms and stipulations, its legal qualities and conditions, or by regulating the remedy for its enforcement.
    3. That the degree to which a contract is impaired, the manner or cause, is not a matter to be considered, but merely whether in any respect the obligation has been encroached upon, or its binding power to any extent diminished.
    It is now to be considered whether, in the light of these, principles, this ordinance be a law “ impairing tbe obligation of contracts.”
    Apart from tbe express stipulations, as fixed between the parties, and the implied stipulations which are fixed by law, there attach to classes of contracts certain legal incidents, which give to each class an obligation peculiar to itself. For example: A contract which is without consideration, is without obligation; a contract which springs from an illegal consideration, is without a remedy for its enforcement; a contract tainted with usury, has an obligation to a certain extent; a contract founded on mistake, bears an obligation subject to a correction of the mistake; a contract made in consideration of property purchased, carries an obligation which may be affected by the unsoundness or defect of title in the property. So, too, a contract in writing has a peculiar obligation, which may be enforced, despite any facts in parol which would vary its terms. A contract under seal has the highest binding force known to the law, and may be enforced against all pleas other than those of fraud, mistake, illegality and failure of consideration. These differences in the obligation of contracts, result directly from tbe law which pertains to each class, and which governs and controls the character and extent of the obligation, independently, of the express stipulations of the parties. The law which pertains to each class is the very life of the obligation.
    Contracts have, moreover, a special value, greater or less, depending upon the form in which they exist, and because of the obligation which the law attaches to that form. A debt existing in parol has but little value; it rests in the mere breath of the debtor, and is open to contradictory testimony, which may vary or wholly defeat its obligation. The same debt expressed in writing has a much higher value. If expressed in the form of a note or bond, it attains its highest value, as well in law as in market. It is valuable as an investment — valuable because its terms cannot be varied, because its consideration cannot be questioned, because of the law which pertains to its form, and which protects its obligation from the uncertainties, delays and costs of litigation.
    Turning now to the ordinance, it cannot fail to be seen wherein it violates the obligation of contracts. “ In every action,” (assuming the construction urged by the defence,) arising “on any contract” made between certain indicated periods, no matter what be the terms of the contract, its stipulations and conditions; no matter what its binding force or obligation; “ whether under seal or parol, written or oral,” it abrogates as to such action all the rules of law which restricts an inquiry into “ the true value and real character of the consideration” of the contract “at the time it was made.” It authorizes either party to disregard, and requires the Court to disregard the law which pertains to each form of action and to each form of contract — to disregard every thing which gives to the contract its binding force and its value; and vests in the jury the power to disregard every stipulation, express or implied., and to render such verdict as may comport with their notions of “substantial justice.” Taking, by way of illustration, the particular contract now before the Court, the extent to which its obligation is impaired, is obvious at a glance. It is a contract in writing and under seal — one of a class which has the highest value known to the law. Its terms are clear and explicit; it is by law protected against parol testimony; its consideration cannot be impeached for inadequacy ; it is free from fraud, mistake or illegality. This contract the ordinance proposes to degrade to the footing of a contract not under seal, of a contract not in writing, of a contract ambiguous and undefined in its terms. It proposes to abrogate its every legal feature; to ignore everything that the parties agreed upon ; to obliterate the contract itself; and giving to the jury the single fact that five hundred bushels of corn were purchased, to empower them to say by their verdict what shall now be paid therefor. One can scarcely conceive of a greater impairing of the obligation of a contract, unless it be the absolving of an obligor from all liability whatever.
    It may be argued, that the ordinance does not necessarily involve the violation of any contract; that it merely directs that certain testimony shall be introduced, without declaring what shall be the effect of such testimony, that it still remains with the Court to instruct the jury as to what its effect shall be. To this it is replied: That the ordinance does not mean to authorize a mere idle inquiry. It was not meant to declare that certain testimony shall be heard, merely in order that the Judge may instruct the jury to give to it no effect. It was intended, as far as it should .operate, to open up contracts to an inquiry which, but for the. ordinance, would be irregular and contrary to law. It was intended to impeach contracts which, but for the ordinance, could not be impeached. More than this: It was intended that this irregular and illegal testimony should go to the jury; that it should reach to the verdict and influence it; that the jury should consider it with the view “ to effect substantial justice between the parties.” And herein lies the great practical objection to the ordinance: That by opening up an inquiry in each action which does not legally belong to it; by abrogating rules of evidence, (if it be thus mildly considered,) which guard contracts from impeachment and give them value; and by giving to a jury carte blanche to do what they may consider substantial justice between the parties, it places it in their power not only to disregard the terms of a contract which it is their duty to enforce, but to disregard even “justice between the parties.” It invests them with the power of making for parties new contracts, instead of enforcing those already made — of readjusting tbe terms of a contract, of fixing tbe prices of commodities, in utter disregard of the solemn obligations of the contracting parties. It furnishes to them the opportunity to yield to the popular inclination in favor of the debtor, and to substitute their own crude, and perhaps prejudiced notions, in lieu of the justice which tbe law declares. Such a law as fully impairs the obligation of contracts, as if it acted directly upon them, without the agency of a jury. To argue otherwise, is to say that a Havnau or a Sherman, who opens a defenceless city to the ravages of a brutal and unrestrained .soidiery, shall not have their mischief laid to his intent.
    It cannot be gainsayed, that if the power be conceded to' take such cognizance of contracts made between the 1st of January, 1862, and the 15th of May, 1865, and to commit them to the jurors of the country to be altered, amended, modified or abolished at pleasure, there can exist no constitutional objection to the exercise of a like power over all contracts prior to the first of those dates, or subsequent to the latter. The fact that there exists no cause or occasion for such an ordinance, cannot affect the question of power ; nor can the manner in which this control is directed to be exercised. As well may the power have been by the convention invested in the Legislature as in the juries— and, indeed, with more reasonable propriety. As well may it have extended to all contracts, as to those indicated. And not alone to the mere re-adjustment of them, but to their wholesale abrogation; thus realizing to the country its jubilee of a general repudiation.
    In this argument, it has been assumed that an ordinance of a convention of tbe people, is a law of like significance to that of any law passed by the Legislature. Whatever higher significance it may be supposed to have in other respects, it can have none such in respect of this prohibition in the Constitution of the United States. The prohibition is against the “State,” and it is assumed that in whatever way the State shall act, whether by a constitutional convention, or by a convention in any other manner formed, or by the Legislature, or in any other way, its action in this respect is within the prohibition. It is as though the framers of the Constitution, by the use of the word “State,” instead of the ordinary law-making department of the State, intended to prohibit this kind of law, no matter how passed.
    It has also been assumed, that this ordinance is a law to be observed and enforced by the Courts of the State — a point which may be seriously questioned.
    These Courts are appointed for the administration of j ustice according to laiv. What the law is which they are to administer — the law which belongs to them to consider —is ascertained by reference to that which constitutes the law of the State.. This is the common law; derived from the universal consent and immemorial usage of our people ; the statute law, as expressed in the enactment of the Legislature of the State and of the United States ; and the fundamental law, as ordained in the Constitutions of the State and of the United States. These constitute the law of the State — the law of the land ; and it cannot be conceded that the Courts appointed for its administration, can look to, or in any manner recognize any law which emanates from any other source. This ordinance is neither of the common law, of the statute law, nor yet of the fundamental law — for we cannot recognize as of the fundamental law, anything which is not embodied in the constitution. There is involved in this inquiry necessarily, no question as to the extent of power which vests in a convention of the people; nor yet any question as to the irregular manner in which was called the particular convention from which this ordinance emanated. It may be conceded, that it was so organized as to constitute truly a convention of the people of the State; that so being organized, it was the embodiment of the sovereignty of the people, and its power supreme over the law and the Constitution. All this may be conceded, and still the question recurs : can the Court recognize as law anything emanating from a convention which is not found expressed in the Constitution ? can the Courts, in the absence of anything in the Constitution empowering them so to do, regard every ordinance as of the law, merely bemuse it emanates from the sovereign power ? That convention, in the Constitution ordained by it, declared — as was also declared in every Constitution which preceded it — that the “ Legislative authority,” the law-making^ authority, “of the State, shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives and it also declared that “ no bill shall have the force of law, until it shall have been read three times, and on three several days in each House.” This was but the authoritative incorporation into the fundamentel law, of that which was of the very nature of our system of government; for beyond the Constitution, lying far back in our people’s history, and traced steadily onward in the progress, and development of our social polity, lies this theory, that the Legislature is the legitimate law-making authority. "We know the convention as an extraordinary body; not intended, nor in its machinery adapted to the making of laws. It is called to do those things which a Legislature cannot do; to consider those questions upon which a Legislature cannot act. To it, according to the settled usage of our people, belongs the duty of ordaining and embodying the fundamental law — of declaring the principles upon which the Government is founded; of distributing the sovereign powers, and directing the manner of their exercise; but, according to the like settled usage and intendment of our people, to the Legislature belongs alone the power to declare the law in its details, as affecting the rights of persons and the rights of property. If the ordinance of a convention be authoritative-upon the Courts on a question of civil right between man and man, shall it not be of equal authority in matters criminal? Would it be seriously argued, that an ordinance declaring a misdemeanor or felony, could be recognized by the Courts? Would the “contra formam statüti,” be sufficiently flexible to adapt itself to an offence so created ? As well may it be said that the Courts can take cognizance of an offence, created by order of the military power, under whose supreme authority the State now groans. It was competent for the convention — possessed as it was of supreme power — to have invested the Courts, by the Constitution, with authority to take knowledge of its extra-constitutional laws, even as the military power creates the tribunals for the special enforcement of its laws. Not having done so, it is respectfully submitted, that this ordinance is without a tribunal for its enforcement; that it cannot be recognized as being part of that law, which the Courts of the State can administer.
    This question is not wholly of novel import. It was the complaint of the fathers of British liberty, under the reign of James II., that in the exercise of his sovereign power, he sought “ to subvert and extirpate the laws of the kingdom,” by assuming and exercising a power of “ dispensing with and suspending of laws, and the execution of laws, without consent of Parliament;” and one of the substantial results of that revolution, handed down to us in the “ Bill of Bights,” is the declaration that the exercise of such power by the sovereign is illegal. It does not necessarily vary the case, that with us the sovereign is the people; that the convention arises from the people, and can but express the people’s will. Were it alone the constitutional convention of which we speak, there might exist no cause for apprehension. But the conventions of which we now hear, spring from abroad. Although recognizing the people as the source of all power, they rise not from those who are the people. And, although assuming to speak the people’s will, they do but utter the voice of the “ evil counsellors, judges and ministers,” who choose to make them a convenient machinery for the exercise of arbitrary and despotic power; for clothing with a semblance of legality their encroachments upon the rights and liberties of our people; and for covering up mischievous departures from the long settled land-marks of our governmental- polity. The necessity therefore, of defining a limit to the exercise of the power of legislation by these irresponsible bodies, is to us of paramount importance. Something of safety maybe found in the judicial assertion of the principle for which we contend, that the Courts cannot recognize as of the law which they are to administer, any utterance of a convention other than what is embodied in the Constitution.
    
      Perry, for appellant
    in Thomas vs. Raymond.
    
   The opinion of the Court was delivered by

Moses, J.

The action in the case first stated, was on a note of band, in the words and figures following:

“$2500.
“Twelve months after date, with interest from date, we, or either of us, promise to pay James-M. Rutland, (executor of the will of N. A. Peay, deceased,) the sum of twenty-five hundred dollars. This note to be paid in such currency as can immediately be made available in payment of the old debts of the estate of Peay, dollar for dollar. Witness our hands and seals this first day of June, 1864.”

The defendants pleaded the ordinance of the convention passed on 27th September, 1865, entitled “'An ordinance to declare in force the Constitution and laws heretofore in force in this State, and the acts, official, public, and private, done, and appointments and elections made under authority of the same,” and offered testimony to show tbe character of the consideration, and the value thereof, which his Honor the presiding Judge refused, holding, that such a contract as the one made here, was not embraced within its provisions, and under his instructions, the jury found for the plaintiff $2,997.30, the sum stated in the cause of action, with interest to time of trial.

From this verdict the defendants appeal, and ask for a new trial on the ground, “ that the ordinance did embrace within its provisions the contract contained in the instrument sued on, and that consequently, the evidence excluded was admissible.”

To counteract the effect of this ground of appeal, the plaintiff impeaches the validity of the ordinance because in conflict with the tenth section of that article of the Constitution of the United States, which declares that “ no State shall pass any law impairing the obligation of contracts.” The whole case is referred to this Court, and two questions are presented.

1st. Do the provisions of the ordinance apply to the instrument sued on ?

2d. Is the ordinance itself in violation of the Constitution of the United States?

It would have been difficult for the Convention to have used language of a more comprehensive character. It is so free from doubt and ambiguity as to preclude all necessity of inquiring into the mischief which it proposed to correct, or the remedy by which such correction was to be accomplished. Where a statute speaks so plainly and forcibly, that the purpose which it contemplated cannot be misunderstood, a Court is bound to give it the construction which its words demand. As if exercising the utmost care and caution, lest its meaning might be misapprehended, it was not satisfied in extending the ordinance to any contract made or entered into between the periods stated, which might have been altogether sufficient, but it proceeded to declare, that it had in view contracts of any character, “ whether under seal, or parol, written, or oral.”

Neither is it necessary when a statute expresses without doubt or obscurity the purpose of its makers, to refer to cotemporaneous history for the lights by which it is to be construed. The words embody the intention, and if the conclusion to which they lead, is free from uncertainty, and the design manifest, Courts must give it effect according to the intent apparent on its face.

If the contract in question had specified the payment of so many dollars in gold, it would be difficult to perceive, how, under the ordinance, testimony could be excluded as to the “true value, and real character of the consideration.” What weight the jury might be bound to give to such evidence, when introduced, is another question. Although a note might be so payable, yet in order to effect “ substantial justice between the parties,” it might be competent and important to inquire into the “true value and real character of the consideration of the contract” at the moment it was made, for it may have been based upon a gold standard fixed at the time, either in reference to United States, or Confederate currency, or to the value of gold when the paper fell due, or its market value at the end of the war.

The ordinance was not enacted for the mere purpose of protecting the rights of debtors, who without it might be held to a liability far beyond what was understood and intended by the parties, but was also for the benefit of creditors who, if without it, might have been deprived of what they were justly entitled to, if not allowed to show the “true value and real character of the consideration.”

It by no means follows, that if the ordinance is not restricted as claimed by the plaintiff that well considered contracts will be thrown open to the wild and capricious notions of juries.” The effect of the ordinance will be, rather to suppress such anticipated evil' by permitting the introduction of the testimony. It was intended to afford aids through which substantial justice might be reached.

The conclusion at which the Court has arrived on this ground of appeal is not to be regarded as expressive even of an intimation of opinion, on the force of the testimony excluded by the Judge on Circuit. In ordering a new trial it leaves open to inquiry the conclusion which the evidence in the case may demand on the one side or the other. It does not propose to direct what instructions on the proof adduced are to be given by the Judge who may preside. His judgment and experience will afford the proper restraints to prevent a verdict independent of the law and evidence.

As to the second ground. A convention of a State is as much bound by the prohibitions of the Constitution of the United States as a State Legislature. The States yielded to all restraints imposed upon them by that instrument. They were parties to it, and the people accepted it as the supreme law of the land. If because an ordinance emanates from a State convention,- it is paramount when it conflicts with the Constitution of the United States, as State Constitutions are the creatures of conventions, for the same reasons, it might be claimed that they must prevail over the Constitution of the United States whenever a conflict arises between them. Such a doctrine finds no support in reason or authority. An ordinance violative of the Constitution of the United States has no more validity than an Act of the Legislature in contravention of it.

Is the ordinance in question repugnant to the Constitution of the United States, because it impairs the obligation of contracts ?

The obligation of the contract is the law which binds, the party to the performance of his undertaking. If the subsequent enactment so affects it, that tbe intention of the makers is changed, or new conditions are added, or those which originally attacked to it are so enlarged, restricted, or modified, that the relative rights of the parties do not remain as at first existing, the obligation is impaired. No matter how limited the change, or in what mode accomplished, either by varying the rights which accrued, or so regulating the remedy that through it the original intention cannot be carried out, by reason of the new standard by which it is to be measured and regulated, the obligation of the contract is impaired.

So far, however, does the ordinance refrain from this, that it enlarges a pre-existing rule of evidence, through which the real intention can be the better and more truly ascertained.

A contract has vitality from its consideration; without this, it would be nudum pactum. The purpose of the ordinance is to discover its true value and real character, not with the view of changing rights which have attached itnder it, or in any way diminishing its binding efficacy, but that, regard being had to the particular circumstances attending the agreement at the time of its execution, substantial justice may be effected. It in fact removes the restraints and impediments which prevented the ascertainment of the real intention, and increases the facilities by the aid of which it may be reached.

The constitutional provision above remarked upon, was fully considered by this Court in The State vs. Carew, (13 Rich. 498,) and the most severe scrutiny of the opinion there pronounced, will not discover anything which makes the conclusion of the Court here inconsistent with the judgment there, or the reasoning and authorities which induced it. In the State vs. Oarew, the Act in question was pronounced repugnant to the Constitution of the United States; here tbe Court perceives nothing in the ordinance which should subject it to a like condemnation.

The motion for a new trial is granted.

With the case just considered, was taken up that of Wm. M. Thomas vs. Mary Raymond, from the Court of Equity, The plaintiff, Wm. M. Thomas, sold and conveyed to defendant, Mary Raymond, a house and lot in the town of Greenville, for the sum of $7,000, payable sis months after the ratification of peace with the United States, or before, at his option, with interest on the same from 1st September, 1863, payable annually. To secure the payment, the defendant on the day. of the purchase, to wit, the 25th August, 1863, gave her note under seal, for the amount, to the plaintiff, and also a mortgage of the same premises.

On 28th May, 1866, the plaintiff filed his bill for foreclosure, and enforcement of the note.

The defendant submitted that the note was subject to the ordinance of the convention, adopted on 27th September, 1865, which the plaintiff resisted, First. Because the provisions of the ordinance was not applicable to this particular transaction; and Secondly. That the ordinance was in violation of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts.

The Chancellor overruled both objections, beard the testimony, and adjudged the case.

The plaintiff sought by his motion to the Court of Appeals, to reverse the decree of the Chancellor on several grounds, and that Court has referred them to this for hearing; the two, which bring in question the constitutionality of the ordinance, and the application of its provisions to the particular case, being those principally relied on.

The points so made are identical with those just con-siclered in Copes et al. ads. Rutland, and must be subject to tbe same result.

Tbe other grounds were not insisted on.

Tbe motion is dismissed.

Dunkin’, O. J., Wardlaw, A. J., Glover, J., Inglis, A. J., Dawkins, J., Lesesne, 0., and Johnson, C., concurred.

Motions dismissed.  