# Pillow v. Brown

> Supreme Court of Arkansas · December 15, 1870 · 26 Ark. 240

URL: https://www.frixlaw.com/law-library/cases/6539740

## Case

- **Full name:** Pillow v. Brown & Childress, Ex. etc.
- **Court:** Supreme Court of Arkansas
- **Decided:** December 15, 1870
- **Citations:** 26 Ark. 240
- **Precedential status:** Published
- **Opinion:** Dissent by McClüre
- **Judges:** Being, McClüre, Reso, Story, Wilsiiire
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6539740

## Opinion text

McClüRE, J., dissenting.
In the majority opinion four questions are presented and determined. Of the third and fourth I shall not speak. The first and second propositions, and the manner in which they are disposed of, by the majority, are among the things which have led to this dissent, and in order that they may be the more readily understood, I'shall insert them at length. They are as follows:
First. “The power of the courts to adjudicate upon this class of contracts.”
Second. “Did slavery exist simply by force of the positive law of the States, having no power outside of the limits of the State, except so far as enforced by the Federal Constitution, being recognized as purely a right of the State and not protected by the Constitution of the United States, except on demand of' the State, evidenced by existing laws, and therefore not within the provision of the Federal Constitution prohibiting a State from impairing the obligation of contracts?” ■ In disposing of these important questions, the majority of the court say: “The first and second questions have been passed upon by this court in Jackoway v. Denton, ( 25 Ark. 625 ,) and later cases, and whatever may be the individual opinion of the special judge, it is proper in the midst of ever recurring conflict of opinion, to adopt the rule of stare decises.”
It is true that a majority of the court held, in Jackoway v. Denton, ( 25 Ark. 625 ,) that section fourteen, of article 15 of the Constitution of this State, was in conflict with that clause of the Constitution of the United States, which declares “no State shall pass any law impairing the obligation of contracts.”
If the facts in this case were similar to those presented to the court in Jackoway v. Denton, ( 25 Ark. 625 ,) there might be some excuse for adopting what is called the rule of stare decises; but they are not; they are as different as night is from day; there is no similarity between the two cases, save that the consideration, for which the notes were given, was negro slaves. Jackoway and Denton were both citizens of the State of Arkansas, at the giving of the note and at the commencement of the suit, and while the court might well hold that a denial of the use of the courts of the State to citizens of the State, was an infringement upon the. contract, and an impairing of its obligation; it does not follow that citizens of other States can come into the courts of this State and use them to enforce contracts made in other States, the enforcement of which are forbidden in positive terms by our own Constitution.
The record in this case shows that the sole consideration of the contract, sought to be enforced, was for the purchase of slaves. It also shows that the contract was not made in the State of Arkansas but in the State of Tennessee.
The theory advanced by the majority in relation to contracts, is, that “the laws in existence when it is made are referred to in all contracts, and form a part of them.” Although a strict adherence to this doctrine would render our laws, for the enforcement of debts, somewhat similar to those of the Medes and Persians, unchangeable — we have yet to hear of a jurist, who has asserted that the laws of ArkansaS, and thirty-live other States of the Union, for the collection of debts, enter into every contract made and executed in the State of Tennessee, until the opinion was rendered in this case. In the case now under consideration, the majority have declared that the citizens of other States, at the time of making contracts, have a vested right to a remedy to enforce their contracts in the courts of every State of the Union, and that a denial of such a right, to the citizens of other States, would amount to an impairing of the obligation of the contract. Prom such a conclusion I must respectfully dissent.
I have stated that the record in this case shows that neither Pointer or Pillow were citizens of the State of Arkansas, at the time of the making of the contract; but, on the contrary, that they were both citizens of the State of Tennessee. Our Constitution declares that “no court of this State shall take cognizance of any suit founded on such contracts,” i. e. that no court of this State shall take any cognizance of any suit to enforce a contract, the consideration of which grew out of the purchase of slaves. The record in the case shows that the consideration which moved Pillow to the execution of the notes sued on, was for the purchase of negro slaves. In Jackoway v. Denton, ( 25 Ark. 625 ,) the majority of the court held (Jackoway and Denton both being citizens of the State of Ar-Kansas,) that a denial oí jurisdiction, in that instance, amounted to a denial of remedy, and therefore impaired the obligation, of what once was a valid contract. If it be admitted that the sovereign people had not the same power, when in convention assembled, to destroy the right of property in a note, the consideration of which was for the purchase of slaves, as to-destroy the right of property in slaves, I am* willing to admit that the closing of the doors of courts against slave contracts, impaired the contract, if it be true that the laws in existence at the time of its creation entered into its possessions and became a part thereof. But does it follow, either as a logical sequence, or a legal deduction, because the laws in Arkansas, at the time a contract is made, become a part thereof for its enforcement, that these same laws entered into and became a part and parcel of the contracts entered into in the State of Tennesse^? The majority of the court seem to be of opinion, and in fact many of the citizens of Tennessee agree with them on this point, that the people of Tennessee can make just such contracts as they choose, and that the people of Arkansas have no right to prohibit the use of her courts to enforce Tennessee contracts.
It may be a fault of my education, but I have ever been taught to believe that every State is perfectly competent, and has the exclusive right to prescribe remedies in its own judicial tribunals ; to. limit the time, as well as the mode of redress, and to deny their jurisdiction over cases which its own policy or judgment might discountenance; and I have also been taught to believe, from repeated adjudications, and the American text writers, as well as those of England, that the right of citizens of' one State or Kingdom, to sue in another, was not in fact, a matter of “right,” but a thing of comity.
Story, on the conflict of laws, (sec. 18,) says: “A State may regulate the manner and circumstances under which property, whether real or personal, or in action, shall be held, transmitted, bequeathed, transferred or enforced; the condition, capacity and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties growing out of these contracts and acts.” The State of Arkansas has undertaken to pass on the validity of slave contracts. Judge Story says that a State may not only do this, but it-may regulate the manner and circumstances under which property , whether real or personal, may be held. The majority of the court take issue with J udge Story, on this point, and deny the doctrine laid down by him; but candor compels me to say that his reasoning has carried stronger convictions to my mind,, in favor of his theory, than' the argument presented by the’ majority.
Continuing, J udge Story says: (sec. 242,) “Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country.” This contract (the payment of the money-mentioned in the notes) was to be performed in Tennessee, and I will admit that it was a legal and valid contract at the time-of its execution. The view I take of this matter is, not. whether it was a legal obligation then, or whether it is now. These questions are foreign to what I regard as the real issue. The question which presents itself to my mind is, can the courts of this State enforce contracts for the sale or purchase of slaves, made and to be performed in other States, when the Constitution of this State declares in plain and emphatic-terms that they shall not?
There is a well defined rule of construction, running through alhthe books of the profession, that every word, line and sentence, in a Constitution or law, should receive such construction as would place some meaning upon each word, line and sentence, rather than resort to a construction which would render words and whole lines and sentences nullities, or meaningless phrases. In Jackoway v. Denton, ( 25 Ark. 625 ,) the court declared that a recognition of the force and effect of section fourteen, of article fifteen, of the Constitution of this State, in that case, would be in conflict with that provision of' the Constitution of the United States, which declares that “no State shall pass any law impairing tbe obligation of contracts;” bnt is that true of this case? I think not; for the provision of the fourteenth section, of article fifteen, which declares that “no court, of this State, shall take cognizance of any suit founded on such (slave) contracts,” if given its full operation, force and effect, would not deprive Pointer of a remedy to enforce his contract with Pillow. It may well be argued that Jacko-way and Denton, both being citizens of Arkansas, were deprived of a court in which to enforce their contract, when the doors of the State court was closed against them; but this is not true as to Pointer and Pillow, and for this reason, the opinion in Jackoway v. Denton, ( 25 Ark. 625 ,) is not applicable to the state of facts existing in this case; nor can it, with any degree of fairness, be claimed that the rule of stare deeises is applicable to this case. My convictions are, that the people of this State not only have the right and power to prohibit the use of their courts to enforce the contracts made by citizens of other States, in other States; and that the language of our Constitution is broad enough in its terms to deny to citizens of other States the use of our courts to enforce slave contracts, I have no doubt. Entertaining these convictions, as I do, I have briefly referred to a few of the points which have led to my dissent.
The right of citizens of other States to sue in the courts of this State, is, as laid down by all law writers, a matter of comity, which the State may either extend or deny. Our State, in"my opinion, by the language employed in section fourteen, of article fifteen, has denied the use of the courts to the enforcement of slave contracts; and while I might be willing to assent to a decision where' its enforcement would come in conflict with that provision of the Constitution of the United. States, which prohibits a State from passing a law impairing the obligation of a contract, I am unwilling to extend it to a class of cases where neither the facts nor the surroundings of the case raises the point raised in Jackoway v. Denton.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6539740. Public record. Not legal advice.