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Updated: June 22, 2025
One case has gone so far as to hold that performance of an executory contract to purchase a specific thing cannot be refused because it fails to come up to the warranted quality. /2/
But that form of government, which, neither in its direct institutions, nor in their immediate tendency, has contrived to throw its affairs into the most trustworthy hands, but has left its whole executory system to be disposed of agreeably to the uncontrolled pleasures of any one man, however excellent or virtuous, is a plan of polity defective not only in that member, but consequentially erroneous in every part of it.
What sort of person is a king to command executory service, who has no means whatsoever to reward it: not in a permanent office; not in a grant of land; no, not in a pension of fifty pounds a year; not in the vainest and most trivial title? In France the king is no more the fountain of honor than he is the fountain of justice. All rewards, all distinctions, are in other hands.
In the case of Fletcher v. Peck, this court says: "A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the government.
A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties.
But that form of Government, which, neither in its direct institutions, nor in their immediate tendency, has contrived to throw its affairs into the most trustworthy hands, but has left its whole executory system to be disposed of agreeably to the uncontrolled pleasure of any one man, however excellent or virtuous, is a plan of polity defective not only in that member, but consequentially erroneous in every part of it.
Such men will serve their Sovereign with affection and fidelity; because his choice of them, upon such principles, is a compliment to their virtue. They will be able to serve him effectually; because they will add the weight of the country to the force of the executory power.
A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties.
Peck, that the obligation of contracts clause "embraced all contracts relating to private property, whether executed or executory, and whether between individuals, between States, or between States and individuals," but, he urged, "a distinction is to be taken between particular grants by the Legislature of property or privileges to individuals for their own benefit, and grants of power and authority to be exercised for public purposes."
His brother, his son, and son-in-law, Rolla and Chillie McIntosh, and Hawkins, were all doomed to die, and by the hands of this executory band. That there might be no mistake as to the day, each warrior was furnished with a bundle of sticks of wood, each of these represented a day the whole, the number of days intervening between the time of receiving them, and the day of execution.
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