Ogden v. Saunders. for new proceedings to be had therein, not inconsistent with the judgment of this court. Judgment reversed. DEVEREAUX v. MARR. Division of opinion. This court cannot take jurisdiction of a question, on which the opinions of the judges of the circuit court are opposed, where the division of opinion arises upon some proceeding subsequent to the decision of the cause in that court. In this case, the judges of the Circuit Court of West Tennessee, after a judgment had been rendered in that court, *divided in opinion upon [*213 the question as to the amount of the security bond, to be given by the party applying for a writ of error, whether the amount of the bond ought to be sufficient to cover the whole debt, or only for the costs and increased damages on the party failing to prosecute his writ of error with effect. Whereupon, the division of opinion was certified to this court, under the 6th section of the judiciary act of the 29th April 1802, ch. 291. January 17th, 1827. The cause was argued by Eaton, for the plaintiff; and by White, for the defendant. THIS COURT was of opinion, that it had no jurisdiction of the question on which the opinions of the judges of the circuit court were opposed, the division of opinion having arisen after the decision of the cause in that court. Certificate accordingly. OGDEN, Plaintiff in error, v. SAUNDERS, Defendant in error. The power of congress to establish uniform laws of the subject of bankruptcies throughout the United States," does not exclude the right of the states to legislate on the same subject, except when the power is actually exercised by congress, and the state laws conflict with those of congress. A bankrupt or insolvent law of any state, which discharges both the person of the debtor, and his future acquisitions of property, is not "a law impairing the obligation of contracts," so far as respects debts contracted subsequent to the passage of such laws.1 But a certificate of discharge, under such a law, cannot be pleaded in bar of an action brought by a citizen of another state, in the courts of the United States, or of any other state than that where the discharge was obtained.? 1 Mather v. Bush, 16 Johns. 233; Roosevelt v. Kellogg, 20 Id. 208; Raymond v. Merchant, 3 Cow. 147; Jaques v. Marquand, 6 Id. 497; Sebring v. Mersereau, 9 Id. 344; Hicks v. Hotchkiss, 7 Johns. Ch. 297; Wheelock v. Leonard, 20 Penn. St. 440. Boyle v. Zacharie, 6 Pet. 348, 635; Suydam v. Broadnax, 14 Id. 67; Cook v. Moffat, 5 How. 295; Baldwin v. Hall, 1 Wall. 223; Bald win v. Bank of Newburg, Id. 234; Gilman v. Lockwood, 4 Id. 409. Misapprehenson existed, it seems, for a time, whether the second opinion delivered by Mr. Justice JOHNSON in this case, was, in point of fact, the opinion of a majority of the court; but it is difficult to see any ground for such a doubt. The learned judge explicitly states, that he was instructed to dispose of the cause, and he goes on to explain, that the majority on the occasion is not the same as that which determined the general question previously considered. Ample authority exists for regarding that opinion as the opinion of the court, independently of what appears in the published report When Ogden v. Saunders. ERROR to the District Court of Louisiana. This was an action of assumpsit, brought in the court below, by the defendant in error, Saunders, *214] a citizen of Kentucky, against the plaintiff in error, Ogden, a citizen of Louisiana. The plaintiff below declared upon certain bills of exchange, drawn on the 30th of September 1806, by one Jordan, at Lexington, in the state of Kentucky, upon the defendant below, Ogden, in the city of New York (the defendant then being a citizen and resident of the state of New York), accepted by him at the city of New York, and protested for non payment. The defendant below pleaded several pleas, among which was a certificate of discharge under the act of the legislature of the state of New York, of April 3d, 1801, for the relief of insolvent debtors, commonly called the three-fourths act. The jury found the facts in the form of a special verdict, on which the court rendered a judgment for the plaintiff below, and the cause was brought by writ of error before this court. The question, which arose under this plea, as to the validity of the law of New York as being repugnant to the constitution of the United States, was argued at February term 1824, by Clay, D. B. Ogden and Haines, for the plaintiff in error; and by Webster and Wheaton, for the defendant in error, and the cause was continued for advisement, until the present term. It was again argued, at the present term, February 19th to 22d (in connection with several other causes standing on the calendar, and involving the general question of the validity of the state bankrupt or insolvent laws), by Webster and Wheaton, against the validity; and by the Attorney-General, E. Livingston, D. B. Ogden, Jones and Sampson, for the validity. The editor has endeavored to incorporate the substance both of the former and the present argument, into the following summaries. Wheaton argued, that the state laws now in question were repugnant to the constitution of the United States, upon two grounds: 1st. That the power of establishing "uniform laws on *the subject of bankruptcies *215] throughout the United States," was exclusively vested in congress. 2d. That the state laws in question were "laws impairing the obligation of contracts," the power of passing which was expressly prohibited to the states. 1. The state laws, the validity of which is now drawn in question, are, the act of the legislature of New York of the 3d of April 1801, for the relief of insolvent debtors, on the application of three-fourths of their creditors, by discharging their persons and future property from liability for their the subsequent case of Boyle v. Zacharie, 6 Pet. ver open for controversy, but the set- case, in the course of which he repeated the explanation previously given by the Chief Justice. 6 Pet. 643. Explanations to the same effect were also made by Chief Justice TANEY, in Cook v. Moffat, 5 How. 31; he had ruled the case in the court below, in obedience to what he considered as the settled doctrine of the court, and a majority of the court affirmed the judgment. Taken together, these several explanations ought to be regarded as final and conclusive. CLIFFORD, J., in Baldwin . Hall, Wall. 230-31. And see Witt v. Follett, 2 Wend. 457. Ogden v. Saunders. debts, upon a cessio bonorum, and the act of the 3d of April 1813, granting the same relief upon the application of two-thirds of the creditors. The judgment of one of the learned judges of this court, in the case of Golden v. Prince, was referred to in this part of the argument, and its reasoning relied upon, to show that the power of establishing uniform laws on the subject of bankruptcies throughout the Union was, from its nature, an exclusive power, and that the exercise of a similar power, on the part of the states was inconsistent. (3 W. C. C. 313.) 2. These legislative acts are laws impairing the obligation of contracts. That they are such, in respect to contracts in existence when the laws are passed, has already been determined by the court, upon solemn argument. Sturges v. Crowninshield, 4 Wheat. 122; Farmers' & Mechanics' Bank v. Smith, 6 Ibid. 131. It was also supposed to have been decided, that, in such a case, it was immaterial, whether the contract was made before or after the passage of the law. McMillan v. McNeill, 4 Wheat. 209. But the whole question might now be considered as open for discussion. To determine it, the nature and terms of the constitutional prohibition must be examined. "No state," &c., "shall coin money, emit bills of credit, make anything but gold and silver coin a tender in the payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." These are comprehensive terms, studiously designed to restrain the state legislatures from acts of injustice, both in criminal and [*216 civil matters. 1. The prohibition of issuing bills of credit, or making anything but gold and silver coin a tender in the payment of debts, was intended to cut up paper-money by the roots. The commercial credit of the nation had severely suffered from this fatal scourge; and the anxiety to be relieved from it, was one of the most pressing motives which induced the formation of the new constitution. It might, perhaps, be doubted, whether the power of coining money, which was given to congress, and denied to the states, taken in connection with the prohibition to them to emit bills of credit, or make anything but gold and silver coin a tender in the payment. of debts, was not intended to give to congress the exclusive power of regu lating the whole currency of the country; although the framers of the constitution probably did not foresee how completely this provision would be evaded by the multiplication of banking corporations in the different states. The term "bills of credit," alone, would reach the ordinary case of papermoney; but the prohibition of tender laws was meant to expand the same thought, so as to reach valuation and appraisement laws, and all that prolific brood of similar pernicious enactments, which disfigure the pages of our history, from the peace of 1783 until the establishment of the present constitution in 1789. 2. "Bills of attainder, and ex post facto laws," were prohibited, in order to restrain the state legislatures from oppressing individuals by arbitrary sentences, clothed with the forms of legislation, and from making retrospective laws applicable to criminal matters. Calder v. Bull, 3 Dall. 386. 3. The prohibition of "laws impairing the obligation of contracts," was intended to prevent the remaining mischiefs which experience had shown to flow from legislative interference with contracts, and to establish a 'It has been decided, that congress has power to issue an irredeemable paper currency, and to make it a legal tender in payment of pre-exist. ing debts. Knox v. Lee, 12 Wall. 457. Ogden v. Saunders. great conservative principle, under which they might be protected from unjust acts of legislation in any form. To give complete effect to this last salutary prohibition, the court has constantly given it an interpretation, sufficiently broad and liberal to accomplish the ends which the framers *of the constitution had in view. For this *217] purpose, the prohibition has been considered as extending to contracts executed, as well as executory; to conveyances of land, as well as commercial contracts; to public grants from the state to corporations and individuals, as well as private contracts between citizens; to grants and charters in existence when the constitution was adopted, as well as those existing previously, and even before the revolution; and to compacts between the different states themselves. Fletcher v. Peck, 6 Cranch 87; New Jersey v. Wilson, 7 Ibid. 164; Terrett v. Taylor, 9 Ibid. 43; Town of Pawlet v. Clark, Ibid. 292; Dartmouth College v. Woodward, 4 Wheat. 518; Society, &c. v. New Haven, 8 Ibid. 464, 481; Green v. Biddle, Ibid. 1. In most of these cases, the impairing act was applied to a specific contract or grant, and affected only the rights of particular individuals. But the principles laid down by the court apply to whole classes of contracts; and surely it will not be pretended, that a law repealing all charters of a certain description, or impairing a general description of contracts, or abolishing all debts of a certain nature, would not be reached by the prohibition. The constitution necessarily dealt in general terms; and such is the intrinsic ambiguity of all human language, that it could not entirely avoid difficulties of interpretation. But the fault of tautology has never been imputed to this instrument, and terms of such significant import would hardly have been added to this clause, if it had been intended merely to repeat and amplify the same thought which had already been expressed in the prohibition of papermoney, and other tender laws. On the other hand, if it had been intended merely to prohibit those particular species of laws, impairing the obligation of contracts, which the history of the times shows to have been the object of peculiar censure, they would have been mentioned by name. Papermoney and tender laws may be, and undoubtedly are, laws impairing the obligation of contracts; but they were such notorious and flagrant evils, that it was deemed necessary to prohibit them expressly, and by name. But the convention would have stopped there, had they hot *intended to *218] include any, and every law, impairing the obligation of contracts. And if they had intended to include only such as instalment and suspension laws, they would have mentioned them specifically. It is believed, that the reasoning of the court in Sturges v. Crowninshield is conclusive on his head. This reasoning receives confirmation from the historical fact, that in the original draughts of the proposed constitution, this prohibition of laws impairing the obligation of contracts was not included, although the other prohibitions were contained both in Mr. C. Pinckney's draught, and in that of the committee of nine. The prohibition now in question was subsequently added in the in the revised draught, which shows, at least, that it was studiously inserted. Journ. Fed. Convention 79, 227, 359. Since, then, the convention intended to prohibit every possible mode in which the obligation of contracts might be violated by state legislation, the question recurs, are state bankrupt laws within the prohibition? The clause must be construed in connection with other parts of the constitution, and Ogden v. Saunders. must be considered with reference to those extrinsic circumstances, in the then condition of the country, which affect the question. One of the great objects of the constitution was, to restore violated faith, and to raise the country from that state of distress and degradation into which it had been plunged, by the want of a regular administration of justice in the relation of debtor and creditor. The motives for giving the power of establishing bankrupt laws to congress are explained in the contemporaneous expositions of the constitution. Federalist, No. 42. Had not this power been granted to the Union, it might have been argued, with more show of reason, that the states were not meant to be prohibited from exercising the power, so as to impair the obligation of contracts. In enumerating the prohibitions to the states, each particular class of laws was not specified, for the reasons beforc mentioned. The plan of the framers of the constitution excluded this prolixity of detail. Even in *the Federalist, the authors have only com[*219 mented upon such parts as were subjected, at the time, to popular discussion. Their observations upon the present subject are very general and concise; not, as has been supposed, because the concession by the states was not so extensive as we now contend, but because it was almost universally regarded as indispensably necessary. It is said, in a learned judgment delivered from a tribunal entitled to great respect, that all contracts are to be construed and executed according to the lex loci contractus, and the obligation of the contract is what the law of the place makes it. Hence, it is inferred, that the insolvent laws of the state in which any contract is made, form a part of the obligation of the contract. Mather v. Bush, 16 Johns. 233, per SPENCER, Ch. J. The principle may be admitted, without conceding the inference. It is sought to be illustrated, by supposing the law incorporated into the agreement of the parties. But it is only to suppose the clause of the constitution now in question to be also inserted in their agreement, and it will be seen, that this imaginary reference of the contracting parties to any particular law, leaves the question just where it found it. To this reasoning may be opposed the authority of another learned judge of the same state, who, though he expresses an opinion that the prohibition ought to be applied to retrospective laws only, repudiates this argument. "For," says he, "if parties are to be presumed to contract with reference to existing laws, they must be presumed to mean laws made in pursuance of the constitution." KENT, Ch., 7 Johns. Ch. 376. And it may be added, that the same argument would apply with equal force to a law making paper-money, or anything else but gold and silver coin, a tender in the payment of debts. But it will hardly be pretended, that the existence of such a law, at the time and place where the debt was contracted, would prevent the creditor from recovering it in specie. It may, indeed, be admitted, that there is a difficulty in distinguishing between the obligation of a contract, and the remedy given by the law to enforce it. It may be admitted, *that the states have a right to [*220 modify the remedy, so far as respects their own courts; that the lex fori may be changed in many respects; that the process for the collection. of debts may be altered; still it does not follow, that a law taking away all remedy whatever, and, in effect, abolishing the debt, would be a valid act. Unless such an act be a law impairing the obligation of contracts, it is dif |