different position legally from those unmarried. The former are clothed with a status which draws after it innumerable vested rights between the spouses and against the world, both of person and of property; the latter have only a capacity, which enables them, if they please, to assume the status of marriage; but it cannot be said of them, with any propriety of expression, that they have a vested legal right to be married. A law which should break the existing bond between husband and wife, would destroy legal rights, and thereby create a forfeiture, or perhaps a penalty. A law which should declare that no persons shall hereafter marry until they have reached the age of twenty-one, would abridge an existing capacity, but would not impair any legal right, and therefore would not impose any forfeiture. Legal rights cannot exist without corresponding legal duties resting upon some correlative parties; legal rights must avail against some persons, either against determinate individuals, or against all mankind. If the capacity of an unmarried person to marry be a legal right, against whom does it avail, and upon whom does the corresponding duty rest? But the reasoning of the court must inevitably hold that a statute destroying the capacity to marry under the age of twenty-one, would inflict a penalty or forfeiture upon all unmarried persons below that age, in the same manner that a law dissolving the marriage status would impose a forfeiture upon those affected thereby.

§ 533. This illustration may be immediately applied to the cases of lawyers, clergymen, and the like. After individuals have been clothed with the professional status according to the preëxisting law, they become possessed of vested legal rights flowing from that condition; to destroy or abridge these rights is to impose a forfeiture; to destroy or abridge them as a consequence of criminal acts which were not thus punishable when committed, is to violate the provisions of the Constitution inhibiting ex post facto laws. But to say that no person shall hereafter be admitted to the legal or the clerical profession until he has complied with certain new conditions, impairs no legal right; it only abridges a former capacity, a capacity which was expressly or tacitly granted by the legislature, and which

is under the control of that body. The people of Missouri and the national Congress may have required, and undoubtedly did require, the new conditions from persons intending to enter the bar, or the ranks of the clergy, as a consequence of the fact that many had participated in acts deemed to be criminal, and did intend to shut the door against such participants; but their legislation cannot be said to inflict a punishment, penalty, or forfeiture, because it takes away, abridges, or impairs no legal right whatever. My conclusion therefore is, that the constitution of Missouri and the statute of Congress, so far as they are applicable to persons admitted to the professional status, are ex post facto laws, and void; so far as they are applicable to persons not admitted but desiring to enter, they are opposed to no restrictions of the national Constitution, and are valid.

§ 534. These views were lately adopted and enforced by the Supreme Court of the District of Columbia, in Ex parte Magruder (Feb. 12, 1867). Magruder had never been admitted to the bar of that court. An application was made, based upon the decision of the Supreme Court of the United States in the Cummings and Garland cases, that he might be admitted without taking the test oath required by the act of Congress and the rules of the court. The application was, however, denied, for reasons substantially the same as those set forth in the preceding sections.

§ 535. It hardly need be said that, in my opinion, those clauses of the Missouri constitution which relate to voters, and prescribe conditions for the exercise of the electoral franchise, are opposed to no prohibition of the national Constitution. The subject of voting is completely within the control of the states; the electoral franchise is not a right, but a privilege, which must be conferred by the positive law of each commonwealth. Whenever a state desires to enlarge or restrict the number of voters, it may do so, and no legal rights are impaired. Had the Missouri constitution said in terms that all persons guilty of disloyal practices should in future be cut off from the number of voters; or had it specified individuals by name who were to be thus cut off, these provisions would not

come within the definition of ex post facto laws, because no legal right would have been abridged, and no punishment, penalty, or forfeiture inflicted. One consideration is absolutely decisive of this whole question. Assume that the clauses of the Missouri constitution, so far as they require a test oath from voters, should be declared void, what advantage would those persons gain who refuse to take the oath? Could they be admitted to vote? Certainly not; because the organic law of the state does not confer any such right upon them. To that constitution we must go in order to ascertain who are possessed of the electoral franchise; such privilege must be conferred in affirmative terms, silence does not grant it; the fundamental law of the state does grant it to certain specified classes; among whom persons refusing to take the test oath are not included. This fact at once shows that the voter possesses a mere privilege; that the states have supreme control over this privilege; that taking it away, or, what is the same thing, refusing to confer it, does not impair a right, and cannot be regarded as a penalty or punishment. The highest court of Missouri has very recently affirmed the validity of those clauses in the state constitution, which regulate the subject of voting, and it is supposed the case will be reviewed by the Supreme Court of the United States. I add in the footnote a few important cases in which the nature of ex post facto laws has been examined by state courts.1

III. Other express Prohibitions.

§ 536. The ninth section of the first article provides, in paragraph six, that "no money shall be drawn from the treasury but in consequence of appropriations made by law." The importance of this restriction is evident. It is, indeed, the very key-stone which holds together the arch of constitutional powers and limitations. Withdraw this, and all others would become mere words, with no force or efficacy. How far would an ambitious President be restrained from the accomplishment

1 Matter of Dorsey, 7 Porter's (Ala.) R. 294; Mississippi v. Smedes, 26 Miss. R. 47; Cohen v. Wright, 26 Cal. R. 273; State v. Garesché, 36 Missouri R. 256; State v. Cummings, 36 Missouri R. 263.

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of his designs by the clause forbidding appropriations for the army for more than two years, if he might draw money from the treasury without appropriation? This single example is enough to illustrate the importance of the provision in question. There could be no safety without it, and the security of the whole governmental fabric depends upon its strict and literal observance by all officers and departments of the administration.

The seventh paragraph of the same section, which declares that "no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under the same shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state," does not seem to require particular comment.

Second. Those Prohibitions which are directed alone against the State Legislatures.

§ 537. Passing now to those restrictions which are specially laid upon the states, and which are grouped together in the tenth section of article first, we find that most of them have already been considered in those sections of this work which discuss the power to lay taxes, regulate commerce, raise armies, provide navies, and engage in war. Others, such as the prohibition to coin money, emit bills of credit, and make any thing but gold and silver coin a tender in payment of debts, have been sufficiently referred to in their proper connection. The clause forbidding a state to enter into any treaty, alliance, or confederation with a foreign power, or with another state, was involved in the general discussion of the nationality of the United States.

Impairing the Obligation of Contracts.

§ 538. One of the special limitations contained in the tenth section is, however, of the utmost importance, and has given rise to more forensic argument, and occasioned a greater number of judicial decisions, than all other provisions of the Constitution combined. I purpose to give it a careful and ex

haustive examination, referring to judgments both of the national and the state courts, and endeavoring to arrive at some general principles by which all cases may be controlled. The clause is short and apparently simple: "No state shall pass any law impairing the obligation of contracts." Simple as this prohibition seems, it is, nevertheless, very difficult to reach its full meaning, so as to decide whether a particular law is inhibited by it or not. We must determine the legal signifi

cation, force, and effect of three words; we must ascertain what a "contract" is, what the " obligation" of a contract is, and what "impairing" that obligation is. Upon each one of these three points there has been a vast amount of controversy. I shall, therefore, proceed to examine these questions separately, calling to our aid the decisions of the Supreme Court of the United States, and of the various state courts, giving to the former, as is proper, the greater authority.

I. What are Contracts within this Provision of the Constitution? § 539. A contract is defined by C. J. Marshall to be “an agreement in which a party undertakes to do, or not to do, a particular thing." Contracts may be express, or implied; express, when the parties formally and in positive terms declare what is to be done or forborne; implied, when the stipulations are not thus definitely set forth, but are inferred from the conduct, situation, or relations of the parties, and the promise is treated as though actually made, because in good faith it ought to have been made. Contracts may also be executory, or exe cuted; executory, when the promise or stipulation is yet unperformed; executed, when the promise or stipulation has been performed.

1. Executory Contracts.

§ 540. Adopting the foregoing elementary definitions and divisions, I say

Express executory contracts made between private persons are plainly within the restrictive provision of the organic law. This has never been doubted or questioned.

Implied executory contracts between private persons are as