2. In the following paragraph may be found another batch of Marshall's false assumptions.
The right to contract is the attribute of a free agent, and he may rightfully coerce performance from another free agent, who violates his faith. Contracts have consequently an intrinsic obligation. [But] When men come into society, they can no longer exercise this original natural right of coercion. It would be incompatible with general peace, and is therefore surrendered. Society prohibits the use of private individual coercion, and gives in its place a more safe and more certain remedy. But the right to contract is not surrendered with the right to coerce performance.—Ogden vs. Saunders, 12 Wheaton 350.
In this extract, taken in connection with the rest of his opinion in the same case, Marshall convicts himself of the grossest falsehood. He acknowledges that men have a natural right to make their own contracts; that their contracts have an "intrinsic obligation"; and that they have an "original and natural right" to coerce performance of them. And yet he assumes, and virtually asserts, that men voluntarily "come into society," and "surrender" to "society" their natural right to coerce the fulfilment of their contracts. He assumes, and virtually asserts, that they do this, upon the ground, and for the reason, that "society gives in its place a more safe and more certain remedy"; that is, "a more safe and more certain" enforcement of all men's contracts that have "an intrinsic obligation."
In thus saying that "men come into society," and "surrender" to society, their "original and natural right" of coercing the fulfilment of contracts, and that "society gives in its place a more safe and certain remedy," he virtually says, and means to say, that, in consideration of such "surrender" of their "original and natural right of coercion," "society" pledges itself to them that it will give them this "more safe and more certain remedy"; that is, that it will more safely and more certainly enforce their contracts than they can do it themselves.
And yet, in the same opinion—only two and three pages preceding this extract—he declares emphatically that "the right" of government—or of what he calls "society"—"to prohibit such contracts as may be deemed mischievous, is unquestionable."—p. 347.
And as an illustration of the exercise of this right of "society" to prohibit such contracts "as may be deemed mischievous," he cites the usury laws, thus:
The acts against usury declare the contract to be void in the beginning. They deny that the instrument ever became a contract. They deny it all original obligation; and cannot impair that which never came into existence.—p. 348.
All this is as much as to say that, when a man has voluntarily "come into society," and has "surrendered" to society "his original and natural right of coercing" the fulfilment of his contracts, and when he has done this in the confidence that society will fulfil its pledge to "give him a more safe and more certain coercion" than he was capable of himself, "society" may then turn around to him, and say:
We acknowledge that you have a natural right to make your own contracts. We acknowledge that your contracts have "an intrinsic obligation." We acknowledge that you had "an original and natural right" to coerce the fulfilment of them. We acknowledge that it was solely in consideration of our pledge to you, that we would give you a more safe and more certain coercion than you were capable of yourself, that you "surrendered" to us your right to coerce a fulfilment of them. And we acknowledge that, according to our pledge, you have now a right to require of us that we coerce a fulfilment of them. But after you had "surrendered" to us your own right of coercion, we took a different view of the pledge we had given you; and concluded that it would be "mischievous" to allow you to make such contracts. We therefore "prohibited" your making them. And having prohibited the making of them, we cannot now admit that they have any "obligation." We must therefore decline to enforce the fulfilment of them. And we warn you that, if you attempt to enforce them, by virtue of your own "original and natural right of coercion," we shall be obliged to consider your act a breach of "the general peace," and punish you accordingly. We are sorry that you have lost your property, but "society" must judge as to what contracts are, and what are not, "mischievous." We can therefore give you no redress. Nor can we suffer you to enforce your own rights, or redress your own wrongs.
Such is Marshall's theory of the way in which "society" got possession of all men's "original and natural right" to make their own contracts, and enforce the fulfilment of them; and of the way in which "society" now justifies itself in prohibiting all contracts, though "intrinsically obligatory," which it may choose to consider "mischievous." And he asserts that, in this way, "society" has acquired "an unquestionable right" to cheat men out of all their "original and natural right" to make their own contracts, and enforce the fulfilment of them.