entitled to protection. The history of the Constitution shows clearly that the mischiefs which the framers of the Constitution intended to remedy by this prohibition were, primarily, those caused by state legislation enabling debtors to discharge their debts otherwise than as stipulated in their contracts, and that the prohibition was not intended by its originators to interfere with the exercise of state sovereignty in cases of other than private contracts. This restriction on the power of the states is not to be found in either Mr. Pinckney's, Mr. Hamilton's, or Mr. Paterson's projets as presented to the convention, nor is it implied in Mr. Madison's resolutions, nor does it appear in the draft reported by the Committee of Five on 6th August, 1787; but when Article XIII of the report of that committee was under consideration on 28th August, Mr. King "moved to add in the words used in the ordinance of Congress establishing new states, a prohibition on the states to interfere in private contracts," but, on motion of Mr. Rutledge, as a substitute for Mr. King's proposition, there was adopted a prohibition of state bills of attainder and ex post facto laws.95 The journal of the convention mentions Mr. Rutledge's motion, but omits all reference to Mr. King's proposition. Mr. Madison reports Mr. King's resolution, with the mention of declarations of opinion in favour of it by Messrs. Sherman, Wilson and Madison, and objections to it by Messrs. Gouverneur Morris and Mason, on the ground that state laws limiting the times within which actions might be brought necessarily interfered with contracts, and ought not to be prohibited, and that there might be other cases in which such interferences would be proper. There does not seem to be any record of any other discussion of this subject in the convention. The Committee of Revision

5 Madison Papers, 5 Elliot's Debates, 485.

reported on 12th September, 1787, to the convention their revised draft of the Constitution, in which Article I, Section 10, declares "No state shall . . . pass any . laws altering or impairing the obligation of contracts." In convention on Friday, 14th September, 1787, the clause was finally amended and put into the form in which it appears in the Constitution, there being, so far as is known, no debate on the subject, save by Mr. Gerry, who "entered into observations inculcating the importance of the public faith and the propriety of the restraint put on the states from impairing the obligation of contracts," and unavailingly endeavoured to obtain the insertion in the Constitution of a similar restraint upon congressional action.96 Mr. Bancroft states,97 with reference to the Committee of Revision's report, that "Gouverneur Morris retained the clause forbidding ex post facto lawsand resolute not 'to countenance the issue of paper money and the consequent violation of contracts,'"'98 he of himself added the words, "No state shall pass laws altering or impairing the obligation of contracts." " Mr. Bancroft also quotes from the official report to the Governor of Connecticut made by Roger Sherman and Oliver Ellsworth, the deputies from that state to the Federal Convention, wherein they say, "The restraint on the legislatures of the several states respecting emitting bills of credit, making anything but money a tender in payment of debts, or impairing the obligation of contracts by ex post facto laws, was thought necessary as a security to commerce, in which the interest of foreigners, as well as of the citizens of different states, may be affected." The clause does not appear to have been made a subject of

Madison Papers, 5 Elliot's Debates, 546.

2 Hist. of the Constitution, 214.

98 G. Morris, by Sparks, III, 323. "Gilpin, 1552, 1581.

discussion in any of the state conventions called to ratify the Constitution. Mr. Hamilton, when Secretary of the Treasury, said in his memorandum of 28th May, 1790, to President Washington on the subject of the resolutions of Congress with regard to the arrears of pay due to certain soldiers of the Revolution,100 "The Constitution of the United States interdicts the states individually from passing any law impairing the obligation of contracts. This, to the more enlightened part of the community, was not one of the least recommendations of that Constitution. The too frequent intermeddlings of the state legislatures, in relation to private contracts were extensively felt, and seriously lamented; and a Constitution which promised a prevention, was, by those who felt and thought in that manner, eagerly embraced." Mr. Madison said in the Federalist, "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favour of personal security and private rights; and I am much deceived, if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation, that sudden

100 Works of Hamilton, Lodge's Edition, Vol. II, p. 147.

changes, and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions; every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society." In Sturges v. Crowninshield,2 Marshall, C. J., said "The fair, and, we think, the necessary construction of the sentence requires that we should give these words their full and obvious meaning. A general dissatisfaction with that lax system of legislation which followed the war of our revolution undoubtedly directed the mind of the convention to this subject. It is probable that laws, such as those which have been stated in argument, produced the loudest complaints, were most immediately felt. The attention of the convention, therefore, was particularly directed to paper money, and to acts which enabled the debtor to discharge his debt otherwise than as stipulated in the contract. Had nothing more been intended, nothing would have been expressed. But, in the opinion of the convention, much more remained to be done. The same mischief might be effected by other means. To restore public confidence completely, it was necessary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use of any means by which the same mischief might be produced. The convention appears to have intended to establish a great principle, that contracts should be inviolable. The Constitution, there

24 Wheat. 205.

fore, declares that no state shall pass 'any law impairing the obligation of contracts.'"

State grants.

66. In 1810 the judgment in Fletcher v. Peck3 established the doctrine that contracts to which a state is a party are within the protection of the constitutional prohibition. The facts in that case were these: in 1795 the state of Georgia enacted a statute authorizing the issue of a patent to "the Georgia Co." for a tract of land in that state, and on 13th January, 1795, the patent was issued. By sundry mesne conveyances before 1796 title in fee to a part of the tract vested in Peck, who had purchased for value and without notice of any matter which could invalidate the title of the state's grantees. In 1796 the state of Georgia enacted a statute repealing the Act of 1795 and annulling the patent to the Georgia Co. On 14th May, 1803, Peck conveyed to Fletcher, covenanting, inter alia, that his title had been "in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature of the state of Georgia." Fletcher brought covenant sur deed against Peck in the Circuit Court, declaring, inter alia, that the statute of 1796 was enacted by reason of fraud practiced in securing the enactment of the statute of 1795 and was an impairment of Peck's title. Peck pleaded that he was a purchaser for value and without notice, etc. Fletcher demurred, and the court entered judgment thereon for Peck, which judgment was affirmed in the Supreme Court on a writ of error, the ground of decision being, that the constitutional prohibition comprehends contracts executed, including grants, as well as contracts executory, and that the states being prohibited from passing "any bill of

$ 6 Cr. 87.