lessen, if not to entirely destroy, the value of the franchises held by the Charles River Bridge Company. The action was brought to restrain all proceedings under the second charter. The Supreme Court, in a most elaborate opinion by Chief Justice Taney, held that there was no contract between the state and the Charles River Bridge Company to the effect that another viaduct should not be constructed; that there being no express contract, none should be implied; and that the later charter was valid, as it did not impair the obligation of a contract. The principle of these cases has never been departed from, either by the national or the state judiciary; indeed, the tendency among many state judges has been to extend it to an unwarrantable length. The Supreme Court of the United States has very recently reaffirmed this principle of construction in Turnpike Company v. The State.1 The conclusions from the preceding analysis are, that charters of private corporations are contracts; that all express collateral stipulations contained in such charters are also contracts; but that no collateral agreements, limitations, and restrictions, by or upon the state, will be implied from the nature and objects of the corporation. 6. Municipal Corporations. § 587. The charters of municipal corporations are not contracts, and may therefore be altered or repealed at pleasure, so far as the state legislature is not restrained by the local constitution. The law regards these public territorial bodies as agents and instruments of the state for the exercise of a portion of its governmental functions in a certain district; as clothed with a public trust analogous to that conferred upon officers; which agency or trust may be revoked, changed, lessened, or increased, whenever the legislature in its discretion shall think best. No To this principle there has been an universal assent. case of authority, either in the national or the state courts, has thrown a doubt upon the correctness of these propositions. It is unnecessary, therefore, to make any extended reference 13 Wallace's R. 210. to judicial opinions. One or two citations will suffice. In the Dartmouth College case the judges expressly excepted municipal corporations from the operation of the rule which they established. In East Hartford v. Hartford Bridge Company, the Supreme Court of the United States decided that, a town being a municipal corporation, a grant to it of a ferry privilege may be revoked. A series of cases has been determined during the last few years by the highest court of New York, in which the principle has been distinctly affirmed and applied to legislative acts modifying the charter and corporate powers of New York City. The last of these cases, The People v. Pinkney, was decided in 1865. II. What is the Obligation of a Contract which may not be impaired? § 588. Courts, judges, and text writers have been troubled to find a satisfactory general answer to this question. One principal cause of the difficulty has been that the simple inquiry as to the nature of the obligation has almost always been complicated with the further inquiry, whether certain laws or acts impaired that obligation. If we can keep these questions separate, if we can clearly fix and define the notion of the obligation, we shall then be prepared to determine with comparative ease whether any specified legislative acts impair it. Another source of difficulty lies in the fact that "obligation" as here used is not a word having a technical meaning in the English common law; it is not a word of art; it does not belong to the professional vocabulary. The common law, it is true, used the word "obligation" as a technical term, but only to describe a sealed instrument of a peculiar form. Again, "obligation " is a familiar English term, implying a duty, what one ought to do, ― resulting from mere moral sanctions. Thus, one is obliged to another, one is under an obligation to another, when a duty more or less pressing, and flowing from the moral law, rests upon him towards that other. The word, as it occurs in the Constitution, cannot be understood in this broad and comprehensive sense. 1 4 Wheaton's R. 659, 694. 3 5 Tiffany's R. 377. 2 10 Howard's R. 511. § 589. But if, turning away from the nomenclature of the English law, we examine that of the Roman, we shall there find the word used with a definite, technical, legal meaning; and this signification is the one to be given to the term as it appears in the Constitution. The later Roman jurists, who composed systematic treatises, and the codifiers under Justinian, separated the whole body of the private jurisprudence into three grand divisions: the law pertaining to persons; the law pertaining to things; and the law pertaining to actions. The second of these departments embraced all those rights and duties which have reference to things as their objects; and these legal rights were again subdivided into those which amounted to dominium, and those which were denominated obligationes. The former rights were analogous to our property, or ownership, in its various degrees and grades, and are termed by some modern jurists rights in rem, as they extend over the object of the right, and avail against all mankind. Obligationes were rights availing only against a particular person or persons, and called by many European writers rights in personam. The obligatio was, therefore, descriptive of a particular genus of rights; but it also had a more restricted meaning, which appears to be exactly the one intended in our Constitution. The Institutes defines the word as follows:1 66 Obligatio est juris vinculum, quo necessitate adstringimur alicujus solvendæ rei secundum nostræ civitatis jura;" which may be thus paraphrased: Obligation is the bond or chain of the law, by which we are through a legal necessity compelled to the performance of something according to the rules of our municipal law. It is further said that obligations flow from contracts, from quasi-contracts, from delicts, and from quasidelicts. § 590. The point of this definition is, that "obligation,” as here used, is the bond or chain of the law; it is the compulsive energy of the municipal law, called into active force by the stipulations of a contract. To use logical terms, the law is the cause, the contract is the occasion of the obligation. In the absence of rules of the municipal law covering the case, 1 Lib. 3, tit. 13, de obligationibus. the most formal stipulations of parties would give rise to no obligation growing out of a contract, which human sanctions can reach, however strong an obligation might arise from the commands of God's law, and be enforced by His sanctions. We see this illustrated in a number of cases; a gaming contract, an usurious contract, a contract to procure prostitution, and the like, may be concluded in the most formal terms, may receive the most deliberate assent of the parties; but the law does not add any compulsive force and effect to these promises; the law does not create any obligation upon the occasion of these contracts being executed. § 591. Much confusion has arisen upon this subject from the incorrect use of terms, and the incorrect notions set forth by writers of repute, and particularly by Sir William Blackstone, who, as Austin says, represented the average intellect and legal knowledge of his age. Blackstone often makes a distinction between rights resulting from the act and operation of the law, and rights resulting from the act of parties. Thus, in describing life-estates, he divides them into two general classes those which flow from the act of parties, and those which result from the act and operation of the law, — such as dower and curtesy. This is all irrational and absurd. No legal right or duty whatever can proceed from any other source than the act and operation of the law. The acts of men, who are the subjects of that law, whether these acts be involuntary, as deaths or births, or voluntary, as marriages, contracts, testaments, are only the occasions which give the rules of the law an opportunity to become effective and operative in a particular case. No one, not even Blackstone, would say that the death of the ancestor was the cause of the heir's becoming owner, or that the death of the husband was the cause of the widow's becoming a dowress. These instances are plain; but the case is not different when the act is voluntary. Two parties enter into a contract, their wills agree, their stipulations are mutual; but neither their wills nor their stipulations create the right devolving upon one, nor the duty resting upon the other. The law, seizing hold of this union of wills, this expressed assent of the parties, adds its compulsive energy to the personal stipulations, and creates the right on the one hand, and the duty on the other. The mere words, the mere assent, the mere consideration of a contract, are in themselves nothing; it is only the law which comes in and declares that the fact of such words, such assent, such consideration, shall give rise to rights and duties; it is only the law, which thus creates an obligation in a contract. I say, § 592. My definition of "the obligation of a contract." would therefore be as follows: First, the term is not to be restricted to "duty"; it is to be taken in its Roman sense as including "right" as well as duty; it is "obligatio," the binding, the binding of two things together, namely, the right of one party and the duty of the other; which binding is done by the law. Secondly, "the obligation of a contract” is, therefore, the collective legal rights and duties which the existing law applicable to the contract raises or creates out of or from the stipulations of the parties; rights which it devolves upon one party, and corresponding duties which it lays upon the other. § 593. I have been thus particular in attempting to analyze and define the term "obligation of a contract," because some of our most eminent jurists have been greatly troubled by the phrase. I shall not refer to cases in which judges have examined the import of the words; their number is legion; their conflict is irreconcilable; a citation of them would unnecessarily consume time and space. A brief account of one leading case in the Supreme Court of the United States will sufficiently indicate the difficulty and the opposition of views. In Ogden v. Saunders 1 (1827), the effect of a discharge under a state insolvent law was considered. In a former case, Sturges v. Crowninshield,2 the same court had held that such a statute, so far as it applied to preëxisting contracts, was void. Now, the indebtedness affected by the discharge had accrued subsequently to the passage of the state law. It was urged on behalf of the creditor that the state legislation still impaired the obligation of a contract. On the other hand it was claimed that, the insolvent law having been in existence at the time when 1 1 12 Wheaton's R. 213. 2 4 Wheaton's R. 122. |