According to Justice Blackstone,' the strict sense of obligation is such a constraint as makes it impossible for a man to act otherwise.

§ 263. Civil obligation, then, consists in the remedial power of enforcement. This seems to have been the opinion of several eminent judges in the celebrated case of Ogden vs. Saunders.2 In that decision the judges gave their opinions seriatim; and in respect to the obligation of contracts, as well as several other points, were widely different in their judgments. These questions are, therefore, far from being settled, although the decision upon the facts of that case is doubtless permanent law.

§ 264. Justice Washington said, that "the obligation of a contract is the law which binds the parties to perform their agreement." While he admitted that the common law of nations, or the moral law, might form a part of the obligation of a contract, he insisted that this law is to be taken in strict subordination to the municipal law of the land where the contract is made, or is to be executed.

§ 265. Justice Thompson said, "for it is the law which creates the obligation, and whenever, therefore, the lex loci provides for the dissolution of the contract in any prescribed mode, the parties are presumed to have acted subject to such contingency."

§ 266. Justice Trimble said, "it may be fairly concluded, that the obligation of the contract consists in the power and efficacy of the law, which applies to and enforces performance of a contract, or the payment of an equivalent for non-performance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the Constitution uses the term obligation."

§ 267. Chief Justice Marshall then said, “obligation

11 Blackst. Comm. 57. 2 12 Wheaton, 260. 312 Wheaton, 318. 4 Idem. 350.

and remedy then are not identical. They originate at, and are derived from, different sources;-it would seem to follow that law might act on the remedy without acting on the obligation."

Enough of these dicta have been cited to show, that while the majority of the court agreed in the decision which was made, the individual judges held very different opinions upon the main question, the obligation of contracts.

§ 268. The next great question in respect to the impairing the obligation of contracts, arose in respect to the Insolvent Laws of the several states. The principal cases upon this point are those of Sturges vs. Crowninshield;1 M'Millan vs. M'Niell,2 and the case just cited, of Ogden vs. Saunders. The substance of these decisions has already been given in another place.3

§ 269. The next decision upon this subject was in regard to grants. In the case of Terrett vs. Taylor, the Supreme Court decided, that a legislative grant, competently made, vested an indefeasible and irrevocable title. A state cannot revoke what it has once granted away; nor can the Legislature repeal statutes creating private corporations, and divest the rights under them, without the consent or default of the corpo

rators.

§ 270. One of the most important cases upon the subject is that of Dartmouth College vs. Wooduard, A charter was granted by the British crown in 1769 to the Trustees of Dartmouth College, who acted under it, established the college, and acquired property. The Legislature of New-Hampshire made material alterations in the charter, transferred the government of the college to the government of the state, and made the will of the donors subservient to their own." The Supreme Court decided that such a charter was a contract

14 Wheaton, 122. Idem. 209. 8 Page 104. 49 Cranch, 43. 54 Wheaton, 518. 61 Kent's Comm. 390.

within the meaning of the Constitution; that the college was a private institution, not liable to the control of the Legislature; and that, therefore, the act of the Legislature was an act impairing the obligation of contracts, and void. The court said, that charters of an eleemosynary kind, for the benefit of religion, education, or charity, administered by trustees, was within the purview of the Constitution; and that rights acquired under them were vested and protected by it.. No doubt such is the clear dictate of reason; and such institutions, if any, ought to be protected from the ruthless hands that are too often laid upon them.

§ 271. As the prohibition in relation to ex post facto laws is confined to retrospective criminal laws, and as there is a class of retrospective laws which are not criminal,—this last class is restricted only by the prohibition against the impairing the obligation of contracts, and there is therefore a large class of retrospective laws which it is constitutional for the states to pass. Thus, a law abolishing imprisonment for debt, as well as to past as to future contracts, may be constitutionally passed by the state legislatures. All retrospective laws are, however, unjust and impolitic; for they destroy the relation of circumstances under which the parties upon whom the law acts stood at the time they made the contract, or performed the act in question.

The last prohibition of this clause is, that the state shall grant no title of nobility. The reason of this is the same as that in regard to the national government: it was an exclusion of every thing like nobility and aristocracy.

§ 272. Clause 2d. No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts laid by any state on imports and ex12 Peters' Supreme Court Rep. 870.

ports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay.

§ 273. The Constitution had already restricted Congress in the power to lay taxes, by requiring that direct taxes should be in proportion to the census, and indirect taxes uniform; that no duties should be laid on exports, and no preference given to the commerce of one state over another. If such restrictions were found necessary for the general government, much more were they for the several states, who, by local regulations, were at all times liable to collision, and might destroy the commerce of each other. In fact, the revenue from commerce is another attribute of national sovereignty, and could safely be trusted only to that body in whom the national sovereignty resided, and to whom was intrusted the national defence and the general welfare. Sufficient power over internal commerce is left to the states, with the consent of Congress, to execute their inspection laws, -all the rest is taken away.

§ 274. Inspection laws are not strictly regulations of commerce, though they may have an influence upon it.1 The object of inspection laws is to improve the quality of articles produced in the country, and fit them for use and exportation.

§ 275. In the year 1821, the state of Maryland enacted, that all importers of foreign articles, commodities, &c., by bale, package, &c., and those persons selling the same at wholesale by bale, package, &c., shall, before they are authorized to sell, &c., take out a license, for which they shall pay fifty dollars, &c. This act 13 Story's Comm. 472.

was resisted as a violation of the Constitution, and the Supreme Court decided that it was unconstitutional. The ground of the decision was, that although an import duty is generally secured before the goods are landed, yet a tax is not the less an impost, though levied on them after they were landed; that a duty on imports is not merely a duty on the act of importation, but is a duty on the thing imported. Nor does it make any difference whether the duty was imposed by way of license upon the occupation, or as a direct duty on the article.

§ 276. It has already been seen that a state has no power to tax the Bank of the United States, because they have no power to restrain the constitutional means given to the government to execute constitutional ends.

§ 277. In the same manner it has been decided that a state has no power to tax stocks issued for loans to the United States.2

§ 278. Tonnage duties are taxes laid on vessels at so much per ton. After what has been said upon the propriety of imposts on imports and exports by the states, the reason for prohibiting a duty on tonnage will be evident. If the states could have laid duties on tonnage, they could have effected, indirectly, all the mischiefs flowing from a power in the states to tax imports and exports.

§ 279. The states shall not keep troops or ships of war in time of peace: this again is founded on the same principles as the other prohibitions relative to the exercise of national sovereignty; to keep troops, make war, &c., are attributes of national sovereignty, which could not exist at once in both the general and state governments, without constituting them separate nations,-a result which it was the very object of the Constitution to prevent. The prohibition does not extend to a municipal guard, such as those kept to guard penitentia1 12 Wheaton's Rep. 419.

2 Warton vs. The City Council of Charleston, 2 Peters' R. 449.