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BE IT REMEMBERED, that on the twentyfifth day of July, A. D. 1829, in the fiftytuu". Independence of the United States of America, Nathan Dane, of the said district, has depositor office the title of a book, the right whereof he claims as Author, in the words following, to wit:
'A General Abridgment and Digest of American Law, with occasional Notes and Comments, By Nathan Dane, LL. D. Counsellor at Law. Volume Nioth."
In conformity to the act of the Congress of the United States, entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned ;' and also to an act, entitled 'An act supplementary to an act, entitled, “ An act for the encouragement of learning, by securing the copies of maps, charts, and buoks, to the authors and proprietors of such copies, during the times therein mentionedl;” and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints.'
JNO. W. DAVIS, Clerk of the District of Massachusetls.
PREFACE TO THE NINTH VOLUME.
The cases added will be a few select American decisions made, and laws enacted, before 1820, and, generally, those decided and enacted since, American and foreign; in both cases the marginal references to cases of any age, as they may apply, will be added. In the work, as first published, there is as much foreign law, and for the most part, as much American law, found in existence in 1820, as is consistent with the plan of this work. The law published since 1820, is the most authentic and useful, being the latest; and of it, of the highest authority, there is not a small quantity, and that too decided and enacted by the courts and legislatures having final jurisdiction on the subjects on which they act.
As the work in its origin was the first of the kind in America, it was, in the outset, often necessary to introduce into it legal history and explanations, discussion, and reasoning. This course is now become less necessary, and need not frequently be adopted.
As American law, especially in print, is vastly increased since this work was originally and mainly formed, now and in future there ought to be included in it a much greater proportion of late American, and much less of English law; more especially as eminent judges and lawyers in the United States very justly hold English decisions, made since the United States became independent, not to be binding authorities in them, and not being such, they are but the opinions of eminent judges and chancellors, as may be thousands in other nations; however, the English decisions are very often on the principles, and often on the very words of our own laws, these and those of England being in many cases the same; also it is thus the superiority of the English over the American decisions is rapidly passing away.
Since this work went to the press, I have reviewed the new Commercial Code of France, and the English and our laws, on the same subject. In many cases in this code I find precision and certainty, where, in the English and our laws, I find the opposite character. I have, therefore, added a small selection from this code in cases in which it highly merits
attention; and I can say, with those who say there is a moral excellency in the whole code, it has a sacred regard for private property and public order. It enjoins the faithful performance of contracts, ordains the prompt administration of justice, and requires the unsullied purity of the mercantile character. As to its severe treatment of insolvents and bankrupts, and the rights allowed to married women, we are to consider they are calculated for France, are the old French law improved, and are not calculated for Federal America.
This ninth volume is made up almost entirely of decisions in law and equity, American and English, made in supreme courts within the last nine years, and is taken from more than thirty volumes, among others, of the latest reports of which there is no other abridgment. The author has found no occasion to add any new chapters, and but very
few new articles; hence the parts of this ninth volume are almost invariably additions to the articles and sections in the cight volumes. In the eight volumes, the author copiously included ancient law, because now found in but few law libraries, and yet is law, and a large portion of Maine and Massachusetts law. He, in this additional volume, lias found room to include a larger portion of the laws of other States in the Union, as far as judicial decisions have been reported. After all, as formerly observed, the enactment of near thirty legislatures, and the decisions of as many supreme courts, are so extremely numerous in nine years only, that a large volume can be but a mere sketch of them; and this with a view mainly to show the spirit and principles of the laws in our several States. As the union of our States, on republican principles, is the first object, and the samcness of leading principles throughout the whole, are essential to that union, the author often takes occasion to notice and enforce those principles; and, of course, to select largely from those laws and constitutions best calculated to bind the States together on federal and republican principles. He can hardly realize that one sister State in this Union ought to view another as a foreign State. In this ninth volume, as in the others, the more important cases are abridged, the less important are often only digested. In it are a suitable index and table of cases, but no table of contents; as, to most of the matter in it, the table of contents in the first volume applies.
This volume is formed so as to be used by itself, but to the best advantage with the other eight, as each part in it is in continuation of the corresponding part in thein, and to them expressly refers in each case; and in them all the heads of the law were so included, that it has been found necessary to introduce but one new one in this volume.
other States, but not in a majority of these.
CONTRACTS AND CONSIDERATIONS. 91 Continued. See Art. 54, this chapter. This subject, Art. 1. as to impairing the obligation of contracts, continued on new Continucd. and late authorities, in which eminent judges have differed as to what constitutes the binding force or obligation of contracts made in society; hence, when do State legislatures impair them of not. The latest decision is this, a State legislature impairs a contract when it enacts a law affecting it after it is made; otherwise, if the contract is made after the law is enacted, for then the parties know the law, and inake their contract subject
See a. 2, s. 5 con. 52 Con. The legality or illegality, as well as construction ART. 2. of contracts
, must depend on the lex loci where executed, Con. unless it appears from the contract itself, that it was the under-1 Nott and standing of the parties that it was to be executed elsewhere, MG page 142, a sound price requires a sound commodity. This is the rule of the civil law adopted in South Carolina and some
5. A. D. 1828. Impairing contracts. It will be observed that the article in the territorial ordinance, makes provision that no law shall be passed that shall affect private contracts pre
1. Ch. 1. of the thirteen States before July, 1787, empowering the debtor
Art. 2. to tender depreciated paper money, pine barren lands, and
tract. These gave rise to this provision. This enormous evil
It will also be observed, a similar provision in principle, in
The members of the convention saw it, no 12 Wheat. 213. doubt, in that month. It is stated, that the first draft of this
10th section omitted this provision as to impairing the obligation of contracts, and that in an after draft it was inserted. Is it not the fair inference that the provision in the ordinance gave rise to that in the constitution ? Might not the Federal convention well think it was best to look to the obligation of contracts rather than to the contracts ? as this obligation and binding force of contracts, in its true and broad sense, is founded in reason and conscience, in moral principle, in men’s intuitive perceptions, and in natural law, as well as in the municipal, of course universal; and because the obligation exists only in valid contracts, is a single universal principle in all valid contracts; hence expressed in the singular number, though properly the binding force of contracts in the plural; whereas numerous contracts exist de facto, which are void in law and even in equity, so in which there is no binding force or obligation, natural, civil, or municipal, in conscience or on moral principles; as usurious contracts, and thousands in fact made, but obtained by fraud or deception, or of persons incapable of contracting, or without consideration, &c. Might not the convention well think many