If the

It

thing, whatever form or name it might assume. words are not merely empty sounds, the prohibit on must comprehend the emission of any paper medium by a State government for the purposes of common circulation. would be preposterous to suppose, that the Constitution meant soleranly to prohibit an issue under one denomina tion, leaving the power complete to issue the same thing under another. It can never be seriously contended, that the Constitution means to prohibit names, and not things; to deal with shadows, and to leave substances. What would be the consequence of such a construction? That a very important act, big with great and ruinous mischief, and on that account forbidden by words the most appro priate for its description, might yet be performed by the substitution of a name. That the Constitution, even in one of its vital provisions, might be openly evaded by giving a new name to an old thing. Call the thing a bill of credit, and it is prohibited. Call the same thing a certificate, and it is constitutional.

§ 236. Connected with this, is the prohibition, No State shall make any thing but gold and silver coin a tender in payment of debts." The history of the State laws on this subject, while we were Colonies, as well as during the Revolution, and afterwards before the adoption of the Constitution, is startling at once to our morals, to our patriotism, and to our sense of justice. In the intermediate period between the commencement of the Revolutionary War, and the adoption of the Constitution, the system had attained its most appalling character. Not only was paper money declared to be a tender in payment of debts; but other laws, having the same general object, and interfering with private debts, under the name of appraisement laws, instalment laws, and suspension laws, thickened upon the statute book of many States in the Union, until all public confidence was lost, and all private credit and morals were prostrated. The details of the evils, resulting from this source, can scarcely be comprehended in our day. But they were so enormous, that the whole country seemed involved in a general bankruptcy and fraud and chicanery obtained an undisputed

mastery. Nothing but an absolute prohibition, like that contained in the Constitution, could arrest the overwhelming flood; and it was accordingly hailed with the most sincere joy by all good citizens. It has given us that healthy and sound currency, and that solid private credit, which constitute the true foundation of our prosperity, industry, and enterprise.

§ 237. The prohibition, to " pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," requires scarcely any vindication or explanation, beyond what has been already given. The power to pass bills of attainder, and ex post facto laws, (the nature of which has been already sufficiently explained,) is quite as unfit to be intrusted to the States, as to the General Government. It was exercised by the States during the Revolutionary War, in the shape of confiscation laws, to an extent, which, upon cool reflection, every sincere patriot must regret. Laws "impairing the obligation of contracts" are still more objectionable. They interfere with, and disturb, and destroy, private rights, solemnly secured by the plighted faith of the parties. They bring on the same ruinous effects, as paper tender laws, instalment laws, and appraisement laws, which are but varicties of the same general noxious policy. And they have Leen truly described, as contrary to the first principles of the social compact and to every principle of sound legislation.

§ 238. Although the language of this clause, "law impairing the obligation of contracts," would seem, at first view, to be free from any real ambiguity; yet there is not perhaps a single clause of the Constitution, which has given rise to more acute and vehement controversy. What is a contract? What is the obligation of a contract? What is impairing a contract? To what classes of laws does the prohibition apply? To what extent does it reach, so as to control prospective legislation on the subject of contracts? These and many other questions, of no small nicety and intricacy, have vexed the legisla tive halls, as well as the judicial tribunals, with an uncount ed variety and frequency of litigation and speculation.

§ 239. In the first place, What is to be deemed a con

tract, m the constitutional sense of this clause? A con tract is an agreement to do, or not to do, a particular thing; or (as was said on another occasion) a contract is a compact between two or more persons. A contract 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. An executed contract is one, in which the object of the contract is performed. This differs in nothing from a grant; for a contract executed conveys a thing in possession; a contract executory conveys only a thing in action. Since, then, a grant is in fact a contract executed, the obligation of which continues; and since the Constitution uses the general term, contract, without distinguishing between those, which are executory, and those, which are executed; it must be construed to comprehend the former, as well as the latter. A State law, therefore, annulling conveyances between individuals, and declaring, that the grantors shall stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution, as a State law, discharging the vendors from the obligation of executing their contracts of sale by conveyances. It would be strange, indeed, if a contract to convey were secured by the Constitution, while an absolute conveyance remained unprotected. That the contract, while executory, was obligatory; but when executed, might be avoided.

§ 240. Contracts, too, are express, or implied. Express contracts are, where the terms of the agreement are openly avowed, and uttered at the time of the making of them. Implied contracts are such, as reason and justice dictate from the nature of the transaction, and whica, therefore, the law presumes, that every man undertakes to perform. The Constitution makes no distinction between the one class of contracts and the other. It then equally embraces, and equally applies to both. Indeed, as by far the largest class of contracts in civil society, m the ordinary transactions of life, are implied, there would be very little object in securing the inviolability of express contracts, if those, which are implied, might be impaired by State legislation. The Constitution is not chargeable with

such folly, or inconsistency. Every grant, in its ow nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert it. A party is, therefore, always estopped by his own grant. How absurd would it be to provide, that an express covenant by a party, as a muniment attendant upon the estate, should bind him for ever, because executory, and resting in action; and yet, that he might reassert his title to the estate, and dispossess his grantee, because there was only an implied covenant not to reassert it.

§ 241. In the next place, What is the obligation of a contract? It seems agreed, that, when the obligation of contracts is spoken of in the Constitution, we are to understand, not the mere moral, but the legal obligation of contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please. It is addressed to the conscience of the parties, under the solemn admonitions of accountability to the Supreme Being. No human lawgiver can either impair, or reach it. The Constitution has not in contemplation any such obligations, but such only, as might be impaired by a State, if not prohibited. It is the civil obligation of contracts, which it is designed to reach, that is, the obligation, which is recognised by, and results from, the law of the State, in which it is made. If, therefore, a contract, when made, is by the law of the State declared to be illegal, or deemed to be a nullity, or a naked pact, or promise, it has no civil obligation; because the law, in such cases, forbids its having any binding efficacy, or force. It confers no legal right on the one party, and no correspondent legal duty on the other. There is no means allowed, or recognised to enforce it; for the maxim is, that from a mere naked promise no action arises. But when it does not fall within the predicament of being either illegal, or void, its obligatory force is coextensive with its stipulations.

§ 242. Nor is this obligatory force so much the result of the positive declarations of the municipal law, as of the general principles of natural, or (as it is sometinies

called) universal, law. In a state of nature, i: dependent of the obligations of positive law, contracts may be formed, and their obligatory force be complete. Between independent nations, treaties and compacts are formed, which are deemed universally obligatory; and yet in no just sense can they be deemed dependent on municipal law. Nay, there may exist (abstractly speaking) a perfect obligation n contracts, where there is no known and adequate means to enforce them. As, for instance, between independent nations, where their relative strength and power preclude the possibility, on the side of the weaker party, of enforcing them. So, in the same government, where a contract is made by a State with one of its own citizens, which yet its laws do not permit to be enforced by any action or suit. In this predicament are the United States, who are not suable on any contracts inade by themselves; but no one doubts, that these are still obligatory on the United States. Yet their obligation is not recognised by any positive municipal law, in a great variety of cases. It depends altogether upon principles of public or universal law. Still, in these cases, there is a right in the one party to have the contract performed, and a duty on the other side to perform it. But, generally speaking, when we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are absolutely denied, the obligation of the contract is understood to be im paired, although it may not be completely annihilated. Rights may, indeed, exist, without any present adequate correspondent remedies between private persons. Thus, a State may refuse to allow imprisonment for debt; and the debtor may have no property. But still the right of the creditor remains; and he may enforce it against the future property of the debtor. So, a debtor inay die without leaving any known estate, or without any known representative. In such cases, we should not say, that the right of the creditor was gone; but only, that there was nothing, on which it could presently operate. Bu suppose an administrator should be appointed, and prop