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Allen,' is reported to have said, that if the lender of money accepts a higher rate of interest than the statute allows, on a bond made before it was passed, he would subject himself to the penalty of usury.

2

It is an old and established maxim of the common law, that where a man covenants to do an act that is lawful, and an act of parliament comes and makes it unlawful, this is a repeal of the covenant. So, if a man covenants not to do a thing which it was lawful for him to do, and an act of parliament comes after and compels him to do it, there the act repeals the covenant. The question naturally presents itself, how is this doctrine affected by the constitutional provision we have been considering?

So far as statutes impair the obligation of contracts, within the true intent of the constitution, it is clear that the above maxim is narrowed in its operation. The constitution, being the paramount law, must prevail. The maxim, however, may remain true, so far as acts of congress are substituted for acts of parliament, and are within the legitimate power of congress. Parliament is said to be omnipotent, and the prohibitory clause in the constitution does not restrain congress. That clause extends only to laws passed by a state legislature."

Congress may declare war, or lay embargoes, and thereby render unlawful the fulfilment of contracts; and all acts, which congress may constitutionally pass, may doubtless impair the obligation of contracts with which they interfere.

The cases on this point, in the English books, are principally those in which political movements have interposed between the contracting parties, and rendered the perform

1 T. Ray. 197.

2 See also Proctor v. Cooper, Pre. Ch. 116.

3 Co. Lit. 206 a; Bac. Ab. Covenant, G; 1 Salk. 198; Comb. 467; 12 Mod. 169; 1 Ld. Raym. 321; 7 Mass. R. 338.

♦ Evans v. Eaton, Peters's C. C. 322.

ance of a contract unlawful. Alien enemies cannot recover debts, nor enforce performance of any agreements made during a state of amity. On the return of peace, however, the rights and obligations of the parties are restored. But no liability for non-performance during war attaches on the cessation of hostilities. If the contract then remain capable of performance, it will be enforced at law. If it be a contract which is wholly defeated by the intervention of war, then the war, and the law existing during war, wholly exonerate the party-" repeal the covenant." An embargo is always regarded as a temporary suspension of commercial intercourse, and therefore it merely postpones the performance of a contract. There are some distinctions, in the English decisions, between an embargo laid by the government of both the contracting parties, and by the government of one of the parties only-holding that, in the latter case, the act of the government is the act of the party, and no defence or excuse for non-performance of his engage

ments.

Still there doubtless is much room left for the operation. of the common law maxim, even under state legislation. It is not easy, perhaps, to lay down the limits with exactness, especially as there are no known adjudications on the point. Probably, it may be safely affirmed, that statutes which operate, incidentally only, to impair the obligation of contracts, and do not ex necessitate produce that effect; that is, where such impairing is not the inevitable, and therefore cannot be supposed to be the intended, effect of the statutes; they will take effect constitutionally, though contracts are thereby impaired. As if a contract is made for the erection of a wooden house in a city, by a given day, and a statute, in the mean time, prohibits the building of such house.

1 See Touteng v. Hubbard, 3 Bos. & Pul. 291; Atkinson v. Ritchie, 10 East, 530.

2 Hadley v. Clarke, 8 D. & E. 259; Baylies v. Fettyplace, 7 Mass. R. 325.

Or if a man contracts to build a house on a specified spot of land, and the legislature, or other body authorized by the legislature, lay out a highway over the spot.

The acts of the legislature, in these and similar cases, would be passed, not to interfere with contracts, but wholly diverso intuitu. Yet such acts would probably be held to excuse the parties from the performance of their contracts; would "repeal the covenants." Otherwise, unknown contracts, and even known contracts, to be performed at a future day, might defeat the best interests of the community.

The subject of retrospective laws bears a close analogy to the cases under the constitutional prohibition, which has been examined. But as the cases, which fall under the head of retrospective laws, do not all relate to contracts, it is not deemed advisable to discuss them in this place. It is to be noted, however, that the constitution of the United States does not prohibit the states from passing retrospective laws generally, but only ex post facto laws, and laws impairing the obligation of contracts. The terms, ex post facto, are technical, relating to criminal cases only, and to statutes that make an act punishable as an offence, which was not so when committed; or which enhance the punishment or penalty of an offence, after it is committed.' And an act of a state legislature cannot be pronounced void, as contrary to the constitution of the United States, because such act is retrospective, and divests antecedent vested rights of property, if it do not impair the obligation of a

contract.

2

T. M.

1 3 Dallas, 386; 9 Mass. R. 363; 2 Pick. 170; 5 Monroe, 133; 3 New Hamp. 475; 1 Blackf. 196; 6 Binn. 271; 1 J. J. Marsh. 563; 7 Johns. 488. 2 Satterlee v. Matthewson, 2 Peters, 414; Charles River Bridge v. Warren Bridge, 11 Peters, 420; Watson . Mercer, 8 Peters, 110; Bennett v. Boggs, 1 Baldwin, 74.

ART. II. PERJURY IN A DEPOSITION WHICH IS INVALID AS EVIDENCE IN A CIVIL SUIT.

THE question lately arose in the municipal court for the city of Boston, whether one could be guilty of perjury in swearing falsely in a deposition taken in rei memoriam perpetuam, pursuant to the laws of Massachusetts, when the deposition had not been recorded within the ninety days prescribed by the statute. As the point involves some interesting considerations in the law of perjury, and was, we apprehend, passed over on rather too hasty an examination, we venture to call attention to it by making it the subject of some

comments.

The decision was in Stone's case, tried before Thacher, Justice, at the April term (reported in the Law Reporter for July last) of the present year. The indictment was founded on the second section of the one hundred twentyeighth chapter of the Revised Statutes, which enacts, that, "if any person of whom an oath shall be required by law, shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is required, such person shall be deemed guilty of perjury." It charged the defendant with having committed perjury in answers to certain interrogatories, contained in a deposition which was taken in remembrance of certain matters before Joseph Willard, and Aurelius D. Parker, esquires, justices of the peace, and counsellors at law, on the 9th of February, 1839; and concluded with the profert, as by his said answers to said interrogatories written in said deposition remaining, will among other things appear."

The deposition referred to had been taken pursuant to the provisions of the Revised Statutes, p. 574, (since somewhat altered by the statute of 1839), which permitted any one who was desirous of perpetuating evidence upon any point which might afterwards become the subject of judicial

inquiry, to make application to two justices of the peace to summon before them the person whose evidence was desired, and (notice having been given to all persons interested), to put such questions as might legally be put in taking ordinary depositions; the answers to be made under oath, subject to the penalty for false swearing. A further provision requires, that the same shall be recorded within ninety days in the registry of deeds for the county where the land lies, if the deposition relates to real estate; otherwise in the county where the parties, or some of them, reside. All other formalities had been sufficiently complied with, in the present case, except that last referred to, of recording the deposition somewhere within ninety days after its completion.

As there was no averment in the indictment relative to recording, the objection was only brought out upon the proof. The commonwealth's attorney, Mr. Parker, before calling any witnesses, offered in evidence the deposition, as containing the alleged perjury, and the proof that it had been taken pursuant to the statute. Messrs. Choate and Cushing, of counsel for the defendant, then excepted to the want of registry. The point was but briefly argued; and the learned judge, the same day, gave his opinion in favor of excluding the evidence. The prosecuting officer then offered to prove, by one of the justices who took the deposition, what answers the defendant made to certain interrogatories which were put to him on taking the deposition. But the defendant's counsel having first asked whether those answers were reduced to writing, and subscribed and sworn to, at the time, and such being answered to be the fact, the court excluded the evidence; holding, that as the indictment referred to the written deposition, and it was improper to introduce that, except as of record, parol proof of its contents could not now be received.

Before making the few comments upon the decision which

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