erty in contingency should fall in, the right might then be enforced to the extent of the existing means.

§ 243. The civil obligation of a contract, then, although t can never arise, or exist, contrary to positive law, may rise or exist independently of it; and it may be, exist, notwithstanding there may be no present adequate remely to enforce it. Wherever the municipal law recogises an absolute duty to perform a contract, there the obligation to perform it is complete, although there may not be a perfect remedy.

$244. In the next place, What may properly be deemed impairing the obligation of contracts, in the sense of the Constitution? It is perfectly clear, that any law, which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. The manner or degree, in which this change is effected, can in no respect influence the conclusion; for, whether the law affect the validity, the construction, the duration, the discharge, or the evidence of the contract, it impairs its obligation, although it may not do so, to the same extent, in all the supposed cases. Any deviation from its terms, by postponing, or accelerating the period of performance, which it prescribes, or by imposing conditions not expressed in the contract, or by dispensing with the performance of those, which are a part of the contract, however minute, or apparently immaterial in their effects upon it, impairs its obligation. A fortiori, a law, which makes the contract wholly invalid, or extinguishes, or releases it, is a law impairing it. Nor is this all. Although there is a distinction between the obligation of a contract, and a remedy upon it; yet if there are certain remedies existing at the time, when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means. of enforcing its obligation, and no redress for its violation; such an abolition of all remedies, operating immediately, is also an impairing of the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt, that the Legislature may vary the nature and extent of reme

dies, so always, that some substantive remedy be in fact left. Nor can it be doubted, that the Legislature may prescribe the times and modes, in which remedies may be pursued; and bar suits, not brought within such periods, and not pursued in such modes. Statutes of limitations. are of this nature; and have never been supposed to destroy the obligation of contracts, but to prescribe the times, within which that obligation shall be enforced by a suit; and in default thereof, to deem it either satisfied, or abandoned. The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself, and operates anterior to the time of performance. The remedy acts upon the broken contract, and enforces a preexisting obligation. And a State Legislature may discharge a party from imprisonment upon a judgement in a civil case of contract, without infringing the Constitution; for this is but a modification of the remedy, and does not impair the obligation of the contract. So, if a party should be in jail, and give a bond for the prison liberties, and to remain a true prisoner, until lawfully discharged, a subsequent discharge by an act of the Legislature would not impair the contract, for it would be a lawful discharge in the sense of the bond.

§ 245. These general considerations naturally conduct us to some more difficult inquiries growing out of them and upon which there has been a very great diversity of judicial opinion. The great object of the framers of the Constitution undoubtedly was, to secure the inviolability of contracts. This principle was to be protected in whatever form it might be assailed. No enumeration was attempted to be made of the modes, by which contracts might be impaired. It would have been unwise to have made such an enumeration, since it might have been defective; and the intention was to prohibit every mode or device for such purpose. The prohibition was universal.

§ 246. The question has arisen, and has been most elaborately discussed, how far the States may constitutionally pass an insolvent law, which shall discharge the obi.gation of contracts. It is not doubted, that the States may pass insolvent laws, which shall discharge the per

son, or operate in the nature of a cessio bonorum, or a surrender of all the debtor's property, provided such laws do not discharge, or intermeddle with, the obligation of contracts. Nor is it denied, that insolvent laws, which discharge the obligation of contracts, made antecedently to their passage, are unconstitutional. But the question is, how far the States may constitutionally pass insolvent laws, which shall operate upon, and discharge contracts, which are made subsequently to their passage. After the most ample argument, it has at length been settled, by a majority of the Supreme Court, that the States may constitutionally pass such laws operating upon future con tracts, although not upon past.

§ 247. The remaining prohibition is, to "grant any title of nobility," which is supported by the same reasoning as that already suggested, in considering the like prohibition upon the National Government.

§ 248. The next clause, omitting the prohibition (already cited) to lay any imposts or duties on imports or exports, is, "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." That part, which respects tonnage duties, has been already consid ered. The other parts have the same general policy in view, which dictated the preceding restraints upon State To allow the States to keep troops, or ships power. of war, in time of peace, might be hazardous to the public peace or safety, or compel the National Government to keep up an expensive corresponding force. To allow the States to enter into agreements with each other, or with foreign nations, might lead to mischievous combinations, injurious to the general interests, and bind them. into confederacies of a geographical or sectional charac

ter.

To allow the States to engage in war, unless com. pelled so to do in self-defence and upon sudden emergencies, would be (as has been already stated) to put the peace and safety of all the States in the power and dis

But an absolute prohibition

cretion of any one of them. of all these powers night, in certain exigencies, be inexpedient, and even mischievous; and, therefore, Congress may, by their consent, authorize the exercise of any of them, whenever, in their judgement, the public good shall require it.

§ 249. We have thus passed through the positive prohibitions introduced upon the powers of the States. It will be observed, that they divide themselves into two classes; those, which are political in their character, as an exercise of sovereignty; and those, which more especially regard the private rights of individuals. In the latter, the prohibition is absolute and universal. In the former, it is sometimes absolute, and sometimes subjected to the consent of Congress. It will, at once, be perceived, how full of difficulty and delicacy the task was, to reconcile the jealous tenacity of the States over their own sovereignty, with the permanent security of the National Government, and the inviolability of private rights. The task has been accomplished with eminent success. every thing has not been accomplished, which a wise forecast might have deemed proper for the preservation of our national rights and liberties in all political events, much has been done to guard us against the most obvious evils, and to secure a wholesome administration of private justice. To have attempted more, would probably have endangered the whole fabric; and thus might have perpetuated the dominion of misrule and imbecility.

If

§ 250. It has been already seen, and it will hereafter more fully appear, that there are implied, as well as express, prohibitions in the Constitution upon the power of the States. Among the former, one clearly is, that no State can control, or abridge, or interfere with the exercise of any authority under the National Government And it may be added, that State laws, as, for instance, State statutes of limitations, and State insolvent laws, have no operation upon the rights or contracts of the United States.

§ 251. And here end our commentaries upon the first article of the Constitution, embracing the organization

and powers of the Legislative department of the govern ment, and the prohibitions upon the State and National Governments. If we here pause, but for a moment, we cannot but be struck with the reflection, how admirably this division and distribution of legislative powers between the State and National Governments is adapted to preserve of the liberty, and to promote the happiness of the people of the United States. To the General Government are assigned all those powers, which relate to the common interests of all the States, as comprising one confederated nation; while to each State is reserved all those powers, which may affect, or promote its own domestic interests, its peace, its prosperity, its policy, and its local institutions. At the same time, such limitations and restraints are imposed upon each government, as experience has demonstrated to be wise to control any public functionaries, or as are indispensable to secure the harmonious operations of the Union.

CHAPTER XXVIII.

The Executive Department.

252. WE next come to the second article of thu Constitution, which prescribes the structure, organization, and powers of the Executive department. What is the best constitution for the executive department, and what are the powers, with which it should be intrusted, are problems among the most important, and probably the most difficult to be satisfactorily solved, of all, which are involved in the theory of free governments. No man, who has ever studied the subject with profound attention, has risen from the labor without an increased and almost overwhelming sense of its intricate relations, and perplexing doubts. No man, who has ever deeply read the human history, and especially the history of republics, but has been struck with the consciousness, how little has been hitherto done to establish a safe depositary of power