Ogden, Plaintiff in Error, against Saunders, Defendant in Error, 12 Wheat. 213

The learned judges delivered their opinions as follows c Mr. Justice Washington. The first and most important point to be decided in this cause turns essentially upon the question, whether the obligation of a contract is impaired by a State bankrupt or insolvent law, which discharges the person and the future acquisitions of the debtor from his liability under a contract entered into in that State after the passage of the act ?

This question has never before been distinctly presented to the consideration of this Court, and decided, although it has been supposed by the judges of a highly respectable State Court, that it was decided in the cáse of M'Millan v. M‘Niel, (4 Wheat. Rep. 209.) That was the case of a debt contracted by two citizens of South Carolina, in that State, the discharge of which had a view to no other State. The debtor afterwards removed .to the territory of Louisiana, where he was regularly discharged, as an insolvent, from all his debts, under

an act of the legislature of that State, passed prior to the time when the debt in question was contracted. To an action brought by the creditor in the District'Court of Louisiana, the defendant plead in bar his discharge, under the law of that territory, and it was contended by the counsel for the debtor in this Court, that the law undet which the debtor was discharged, having passed before the contract was made, it could not be said to impair its obligation. The cause was argued on one side only, and it would seem' from the report of the case, that no written opinion was prepared by the Court.

The Chief Justice stated that the circumstance of the State law, under which the debt was attempted to be discharged', having been passed before the debt was contracted, made no difference in the application of .the principle, which had been asserted by the Court in the case of Sturges v. Crowninshield. The correctness of this position is believed to be incontrovertible. The principle alluded to was, that a State bankrupt law, which impairs the obligation of a contract, is unconstitutional in its application to such contract.

In that case, it is true, the contract preceded in order of time the act of assembly, under which the debtor was discharged, although it was not thought necessary to notice that circumstance in the opinion which was pronounced. The principle, however, remained in the opinion of the Court, delivered in M'Millan v. M'Niel, unaffected by the circumstance that the law of Louisiana preceded a contract made in another State, since that law, having no extra-territorial force, never did at any time govern or affect the obligation of such contract.

It could not, therefore, be correctly said to be prior to the contract, in reference to its obligation, since if, upon legal principles, it could affect the contract, that could not happen until the debtor, became a citizen of Louisiana, and that was subsequent to the contract. But I hold the principle to be well established, that a discharge under the bankrupt laws of one government, does not affect contracts made or to be executed under another, whether the law be prior or subsequent in the date to that of the contract; and this I take to be the only point really decided in the case alluded to.

Whether the Chief Justice was'correctly understood by the Reporter, when he is supposed to have said, “ that this case was not distinguishable in principle from the preceding case of Sturges v. Crowninshield,” it is not material at this time to inquire, because I understand the meaning of these expressions to go no farther than to intimate, that there was no distinction between the cas'es as to the constitutional objection, since it professed to discharge a debt contracted in another State, which, at the time it was contracted, was not within its operation, nor subject to be discharged by it.

The case now to be decided, is that of a debt contracted in the State of New-York, by a citizen of that State, from which he was discharged, so far as he constitutionally could be, under a bankrupt law óf that State, in force at the time when the debt was contracted. It is a case, therefore, that bears no resemblance to the one just noticed 1 come now to the consideration of the question, which, for the first time, has been ■ directly brought before this Court for judgment.

I approach it with more than.ordinary sensibility, not only on account of its importance, which must be acknowledged by all, but of its intrinsic difficulty, which every step I have taken in arriving at a conclusion with which my judgment could in any way be satisfied, has convinced me attends it. I have examined both 'sides of this great question with the most sedulous care, and the most anxious desire to discover which of them, when adopted, would be most likely to fulfil the intentions of those' who framed the constitution of the United States.

I am far.from asserting that my labours have resulted in entire success. They have led me to the only conclusion.by. which I can stand with any degree of confidence ; and yet, 1 should be disingenuous were I to declare, from this place, that I embrace it without hesitation, and without a doubt of its correctness. The most that candour will permit me to say upon the subject is, that 1 see, or think l see, my way more clear on the side which my judgment leads me to adopt, than on the other, and it pmst remain for others to decide whether the guide I have chosen has been a safe one or not.

It has constantly appeared to me, throughout the different investigations of this question, to which it has been.my duty tó attend, -that the error of those who controvert the constitutionality of the bankrupt law under consideration, in its application to this case, if they be in error at all, has arisen from not distinguishing accurately between a law which impairs a contract, and one which impairs its obligation, A contract is defined by all to be an agreement to do, or not to do, some particular act; and in the construe-, tion of this agreement, depending essentially upon the will of the parties between whom it is formed, we seek for their intention with a view to fulfil it.

Any law, then, which enlarges, abridges, or in any manner changes this intention, when it is discovered, necessarily impairs.the contract itself, which is but the evidence of that intention. The manner, or the ¡degree, in which this change is effected, can in no respect influence this conclusion; fpr whether the law affect the validity, the construction, the duration, the ipqde of discharge, or the evidence of the agreement, it impairs the contract, though it may not do so to the same extent in all the supposed cases.

Thus, a law which declares that no action shall be brought whereby to charge a person upon his agreement to pay the debt of another, or upon an agreement relating to lands, unless the same be reduced to writing, impairs a contract made by parol, whether the law precede or follow the making of such contract; and, if the argument that this law also impairs, in the former case, the obligation of the contract, be sound, it must follow, that the statute of frauds, and all other statutes which in any manner meddle with contracts, impair their obligation, and are, consequently, within the operation of this

section and

article of the constitution. It will not do to answer, that, in the particular case put, and in others of the same nature, there is no contract to impair, since the pre-existing law denies all remedy for its enforcement,-or forbids the making of it, since it is impossible to denythat the parties have expressed their will in the form of a contract, notwithstanding the law denies to it any valid obligation. This leads us to a critical examination of the particular phraseology of that part of the above

section which relates to contracts. It is a law which impairs the obligation of contracts, and not the contracts themselves, which is interdicted. It is not to be doubted, that this term, obligation, when applied to contracts, was well considered and weighed by those who framed the constitution, and was intended to convey a different meaning from what the prohibition would have imported without it. it is this meaning of which we are all in search. What is it, then, which constitutes the obligation of a. contract? The answer is given by the .Chief .Justice, in the ' case of Sturges v.

Crowninshield, to which I readily assent now, as I did then; it is the law which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the contract in every shape in which it is intended to bear upon it, whether it affect its validity, construction; or discharge. But the question, which law is referred to in the above ' definition, still remáins to be solved.

It cannot, for a moment, be conceded that the mere moral law is intended, since the obligation which that imposes is altogether of the imperfect kind, which the parties to it are free to obey, or not, as they please.

It cannot be supposed, that it was with this law the grave authors of this instrument were dealing, The universal law of all civilized nations, which declares that men shall perform that to which they have agreed, has been supposed by the counsel who have argued this cause for the defendant in error, to be the law which is alluded to; and I have no objection to acknowledging its obligation, whilst I must deny that it is that which exclusively governs the contract.

It is upon this law that the obligation which nations acknowledge to perform their compacts with each other is founded, and I, therefore, feel no objection to answer the question asked by the same counsel — what law it is which constitutes the obligation of the compact between Virginia and Kentucky? by admitting, that it is this common law of nations which requires them to perform it.

I admit further, that it is this law which creates the obligation of a contract made upon a desert spot, where no municipal law exists, and (which was another case put by the same counsel) which contract, by the tacit assent of all nations, their tribunals are authorized to enforce. But can it be seriously insisted, that this, any more than the moral law upon which it is founded, was exclusively in the contemplation of those who framed this constitution ? What is the language of this universal law ? It is simply that all men are .bound to perform their contracts.

The injunction is as absolute as the contracts to which it applies. It admits of no'qualification', and no restraint, either as to its validity, construction, or discharge, further than may be necessary to develope the intention of the parties to the con-; tract.

And if it be true, that this is exclusively the law to Which the constitution refers us, it is very apparent, that the sphere of State legislation upon subjects connected with the contracts of individuals, would be abridged beyond what it canfor a moment he believed the sovereign States of thisUnion would have consented to; for it will be found, upon examination. that.'there áre few Jaws which concern the general police of a state, or. the government of its citizens, in then intercourse with each other, or with strangers, which may not in some way or other affect the contracts which they have entered into, or may thereafter form.

For what are laws of evidence, or which concern remedies — frauds and perjuries — laws of registration, and those which affect landlord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of tavern keepers, and a multitude of others which crowd the codes of every State, but laws which may affect the validity, construction, or duration, or discharge of contracts ?

Whilst I admit, then, that this common law of nations, which has been mentioned, may form in part the obligation of a contract, I must unhesitatingly insist, that this law is to be taken in strict subordination to the municipal laws of the land where the contract is made, or is to be executed. The former can be satisfied by nothing short of performance; the latter may affect and control the validity, construction, evidence, remedy, performance and discharge of the contract.

The former is the common law of all civilized nations, and of each of them; the latter is the peculiar law of each, and is paramount to the former whenever they come in collision with each other.. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the ■ contract made within the State, and must govern it throughout, wherever its performance is sought to be enforced. It forms, in my humble opinion, a part of the contract, and travels with it wherever the parties to it may be found.

It is so regarded by all the civilized nations of the world, and is enforced by the tribunals of those nations according to its own forms, unless the parties to it have otherwise agreed, as where the contract is to be executed in, or refers to the laws of, some other country than that in which it .is formed, or where it is of an immoral character, or contravenes the policy of the nation to whose tribunals the appeal is made; in which latter cases, the remedy which the comity of nations affords for enforcing the obligation of contracts wherever formed, is denied.

Free from these objections, this law, which.accom pañíes the contract as forming a part of is regarded and enforced every where, whether it affect the validity, construction, or discharge of the contract. It jg Up0n principle of universal law, that the discharge of the contract, or of one of the parlies to it, by the bankrupt laws of the country where it was made, operates as a discharge every where.

If then, it be true, that the law of the country where the contract is made, or to be executed, forms a part of that contract, and of its obligation, it would seem to be somewhat of a solecism to say, that it does, at the. same time, impair that obligation. But, it is contended, that if the municipal law of the State where the contract is so made, form a part of it, scdoes that clause of the constitution which prohibits the ' States from passing laws to impair the obligation of contracts ; and, consequently, that the law is rendered inopera - tive by force of its controlling associate.

AÜ this I admit, provided it be first proved, that the law so incorporated with, and forming a part of the contract, does, in effect, impair its obligation; and before this can be proved, it must be affirmed, and satisfactorily made out, that if, by the terms of the contract, it is agreed that, on the happening of a certain event, as, upon the future insolvency of one of the parties, and his surrender of all his property for the benefit of. his creditors, the contract shall be considered as performed and at an end, this stipulation would impair the obligation of the contract.

If this proposition can be successfully affirmed, I can only say, that the soundness of it is bey.ond the reach of my mind to understand. Again ; it is insisted, that if the law of the contract form's a part of it, the law itself cannot be repealed without impairing the obligation of the contract. This proposition Í must be permitted to deny. Tt may be repealed at any time at the will of the legislature, and then it ceases to form ány part of those contracts which may afterwards he entered into.

The repeal is no more void than a new law would be which operates upon contracts to affect their validity, construction, of duration. Both arc valid, (if the view which I take of this case he correct,) as they may affect contracts afterwards formed; but neither are so, if they bear upon existing contracts;. and, in the former case, in which the repeal contains no enactment, the constitution would forbid the application of the repealing law to past contracts, and to those only.

To illustrate this argument, let us take four laws, which, either by new enactments, of by the repeal of former laws, may affect contracts as to their validity, construction, evidence, or remedy. Laws against usury are of the first description.' A law which converts a penalty, stipulated for by the parties, as the only atonement for a breach of the contract, into a mere agreement for a just compensation, to be measured by the legal rate of interest, is of the second... The statute of frauds, and the statute, of limitations, maybe cited as examples of the two last.

The validity of these laws can never be questioned by those who accompany me in the vie w which I take of the question under consideration, unless they operate, by their express-provisions, upon contracts previously entered into; and even then they are void only so far as they do so operate, because, in that case, and in that case only, do they impair the obligation of those contracts.

But if they equally' impair the-Voligation of contracts subsequently made, which they must do if this be the operation of a bankrupt law upon such contracts, it would seem to follow, that all such laws, whether in the form of, new enactments, or of repealing laws, producing the same legal consequences, are made-void by the constitution; and yet the counsel for the defendants in error have not ventured to maintain so alarming a proposition.

If it be conceded that those laws are not repugnant to the constitution, so far as they apply to subsequent contracts, 1 am yet to be instructed liow to distinguish between those laws, and the one now under consideration'. How has this been attempted by the learned counsel who have argued this cause upon the ground of such a distinction'! They have insisted, that the effect of the law first supposed, is to annihilate the contract in its birth, or rather to prevent it from having a legal existence, and, consequently, that there is no obligation to be impaired.

But this is clearly not so, since it may legitimately avoid, all contracts after - wards entered info» which reserve to the lender a higher rate of interest than this lav/ permits.

The validity of the second law is admitted, and yet this can only die in its application to subsequent contracts; for it has not, and 1 think it cannot, for a moment, he maintained, that a law which, in express terms, varies the construction of an existing contract, or which, repealing a former law, is made to produce the same effect, does not impair the obligation of that contract- The statute of frauds, and the statute of limitations, which have been putas examples of the third and fourth classes of laws, are also admitted to b.e valid, because they merely concern the modes of proceeding in the trial of causes.

The former, supplying a rule of evidence, and the latter, forming a part of the remedy given by the legislature to enforce the obligation, and likewise providing a rule of evidence. Ail this Í, admit. But how does it. happen that these laws, like those which affect the validity and construction of contracts, are valid as to subsequent, and yet void as to prior and subsisting contracts ? For ive are informed by the learned judge who delivered the opinion of this Court in the case of Sturges v.

Crowninshield, that, s‘ if, in a State where six years may be pleaded in bar to an action of assumpsit, a law should pass, declaring that contracts already in existence, not barred by the statute, should be construed within it, there could be little doubt of its unconstitutionafity.” it is thus most apparent, that, which ever way we turn, whether to laws affecting the validity, construction, or discharges of contracts, or the evidence or remedy to be employed in enforcing them, we are met by this overruling and admitted distinction; between those which operate retrospectively, and those which operate prospectively, in all of them, the law is pronounced to be void in the first class of cases, and not so in the second..

Let. us stop, then, to make a more critical examination of the act of limitations, which, although it concerns the remedy, or, if it must be'conceded, the evidence, is yet void or otherwise, as it is made to apply retroactively, or prospectively, and see if it can, upon any intelligible principle, be distinguished from a bankrupt law, when applied in the same manner ? ■ What is the effect of the former ?

The answer is, to discharge the debtor and all his future acquisitions from his contract; because he is permitted to plead it in bar of any remedy which can be instituted against him, and consequently in bar or destruction of the obligation which his contract imposed upon him. What is the effect of a discharge under a bankrupt law ? I can answer this question in no other terms than those which are given to the former question.

If there be a difference, it is one which, in the eye of justice at least, is more favourable to the válidity of the latter than of the former; for in the one, the debtor surrenders every thing which he possesses towards the discharge of his obligation, and in the other, he surrenders nothing, and sullenly shelters himself behind a legal objection with which the law has provided him, for the purpose of protecting his person, and his present, as well as his future acquisitions, against the performance of his contract.

It is said that the former does not discharge him absolutely from his contract, because it leaves a shadow sufficiently substantial to raise a consideration for a new promise to pay. And is not this equally the case with a certificated bankrupt, who afterwards promises to pay a debt from which his certificate hád discharged him ? In the former case, it is said, the defendant must plead the statute in order to bar the remedy, and to exempt him from his obligation.

And so, I answer, he must plead his discharge under the bankrupt law, and his conformity to it, in order to bar the remedy of his creditor, and to secure to himself a like exemption. I have, in short, sought in vain for some other grounds on which to distinguish the two laws from each other, than those which were suggested at the bar. I can imagine no other, and I confidently believe that none exist which will bear the test of a critical examination. To the decision of this Court, made in the case of Sturges v.

Crowninshield, and to the reasoning of the learned Judge who delivered that opinion, I entirely submit; although I did not then, nor can I now bring my mind to concur in that part of it which admits the, constitutional power of the State legislatures to pass bankrupt laws, by which I understand, those laws which discharge the person and the future acquisitions of the bankrupt from his debts. I have always thought that the power to pass such a taw was exclusively vested by the constitution in the legislature of the United States.

But it becomes me to believe that this opinion was, and is incorrect, since it stands condemned hy the decision of a majority of this Court, solemnly pronounced. After making this acknowledgment, 1 refer again to the above decision with some degree of confidence, in support of the opinion to which 1 am now inclined to come, thát a bankrupt law, which operates prospectively, or in so far as it does so operate, does not violate the constitution of the United States.

It is there stated, “ that, until the power to pass uniform laws on the subject of bankruptcies be exercised hy Congress, the States are not forbidden to pass a bankrupt law, provided it contain no principle which violates the tenth

section of the first

article of the constitution of the United States.”- The question in that case was, whether the law of New York, passed on the third of April. 1811, which liberates, not only the person of the debtor, but discharges him from all liability for any debt contracted previous, as well as subsequent to his discharge, on his surrendering his property for the use of his creditors, was a valid law under the constitution in its application to a debt contracted prior to its passage ? The Court decided that it was not, upon the single ground that it impaired the obligation of that contract.

And if it be true, that the States cannot pass a similar law to operate upon contracts subsequently entered into, it. follows inevitably, either that they cannot, pass such laws at all, contrary to the express declaration of the Court, as before quoted, or that such laws do not impah the obligation of contracts subsequently entered into; infi.de. it is.a self-evident proposition, that every contract that can be formed, must either precede, or follow, any law by which it may be affected, I havjg, throughout the preceding part of this opinion, considered the municipal law 0( the country where the contract is made, as incorporated with the contract, whether it affects its validity, construction, or discharge.

But I think it quite immaterial to stickle for this position, if it be conceded to me. what can scarcely he denied, that this mnnich pal law constitutes the law of the .contract so formed, and must govern it throughout. I hold the legal consequences to be the same, in which ever view the- law, as it aflects the contract, is considered. I come now to a more particular examination and construction of the

section under which this question arises; and I am free to acknowledge, that the collocation of the subjects for which it provides, has made an irresistible impression upon my mind, much stronger, I am persuaded, than I can find language to communicate to the minds of others.

It declares,,.that <6no State shall coin money, emit bills of credit, make any thing but gold and silver coin a tender in payment of debts.” These prohibitions, associated with the powers granted to Congress “ to coin money, and to regulate the value thereof, and of foreign coin,” most obviously constitute members of the same family, being upon the same subject, and governed by the same policy.

This policy was, to provide a fixed and uniform standard of value throughout the United States, by which the commercial and other dealings between the citizens thereof, or between them and foreigners, as well as the monied, transactions of the government, should be regulated. For it might well be asked, why vest in Congress the power to establish a uniform standard of value-by the means pointed out, if the States might use the same means, and thus defeat the uniformity of the standard, and, consequently, the standard itself?

And why establish a standard at all, for the government of the various contracts which might be entered into, if those contracts might afterwards be discharged by a different standard, or by that which i§ not money, under the authority of State tender laws ? It is obvious, therefore, that these prohibitions, in the 10th section, are entirely Homogeneous, and are essential to the establishment of a uniform standard of value, in the formation and discharge of contracts.

It is for this reason, independent of the general phraseology which, is employed, that the prohibition, in re-J gard to State tender laws, will admit of no construction which would confine it to State laws which have a retrdspective operation. The next class of prohibitions contained in this section. consists of bills of attainder, ex post facto laws, and laws impairing the obligation of contracts.- Here, too, we observe, as 1 think, members of the same family brought together tn the most intimate connexion with each other.

The States are forbidden to pass any bill of attainder or ex pnstfucio law, by which a man shall be punished criminally or penally, by loss of life, of his liberty, property, or reputation, for

an act which, at the time of its commission, violated no existing law of the land. Why did the authors of the constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the State under their management and control ? The only answer to be given is, because laws of this character are oppressive, ünjust, and’ tyrannical; and, as such, are condemned by the universal sentence of civilized man.

The injustice and tyranny which characterizes ex post facto laws, consists altogether in their retrospective operation, which applies with equal force,, although not exclusively, to bills of attainder.

But if it was deemed wise and proper to prohibit State legislation as to retrospective laws, which concern, almost exclusively, the citizens and inhabitants of the particular State in which this legislation takes place, how much more did it concern the private and political interests of the citizens of all the States, in their commercial and ordinary intercourse with each other, that the same prohibition should be extended civilly to the contracts which they might enter into ?

If it were proper to prohibit a State legislature to pass a retrospective law, which should take from the pocket of one of its own citizens a single dollar, as a punishment for

an act which was innocent at the time it was committed; how much more proper was it to prohibit laws of the same character precisely, which might deprive the citizens of other States, and foreigners, as well as citizens of the same State* of thousands, to which, by their contracts, they were justly entitled, and which they might possibly have realized but for such State interference ? How natural, th.en, was it, under the-influence of these considerations, to interdict -similar legislation in regard'to contracts, by providing, that no State should pass laws impairing the obligation of past contracts.?

It is true, that the two first of these prohibitions apply to laws of a criminal,-and the last to lavvs of a civil character; but if 1 am correct in my view of the spirit and motives of these prohibitions, they agree in the principle which suggested them. They are founded upon thesame'reason, and the application of it is at least as strong to the last, as it is to the two first prohibitions. But these reasons are altogether inapplicable to laws of a prospective character. There is nothing unjust or tyrannical in punishing offences prohibited by law, and committed in violation of that law.

Nor -can it be unjust, or op-* pressive, to declare fay law, that contracts subsequently entered into, may be discharged in a way different from that which the parties have provided, but which they know, or may know, are liable, under certain circumstances, to be discharged in a manner contrary to the provisions of their contract.

Thinking, as I have always done, that the power to pass bankrupt laws was intended by the authors of the constitution to be exclusive in Congress, or, at least, that they expected the power vested in that body would be exercised, so as effectually to prevent its exercise' by the States, it is the more probable that, in reference to all other interferences of the State legislatures upon the subject of contracts, retrospective laws were alone in the contemplation of the Convention. In the construction of this clause of the tenth

section of the constitution, one of the counsel for the defendant supposed himself at liberty so to transpose the provisions contained in it, as to place the prohibition to pass laws impairing the obligation of contracts in juxtaposition with the other prohibition to pass laws making any thing but gold and silver coin . a tender in payment of debts, inasmuch as the two provisions relate to the subject of contracts.

That the derangement of the words, and even. sentences of a law, may sometimes be tolerated, in order to arrive at the apparent meaning of the legislature, to be gathered from other parts, or from the entire scope of the law, I shall not deny. But 1 should deem it a- very hazardous rule to adopt in the construction of an instrument so maturely considered as this constitution was by the enlightened statesmen who framed it, and so severely examin .d and criticised by its opponents in the numerous State conventions which finally adopted it.

And if, by the construction of this sentence, arranged as it is, or as the learned couusel would have it to be, it could have beers made our that the power to pass prospective laws, affecting contracts, was denied to the States, it Is most wonderful that not one voice was raised against the provision, in any of those conventions, by the jealous advocates of State rights, nor even an amendment proposed, to explain the clause, and to exclude a construction which trenches so extensively upon the sphere of State legislation.

But, although the transposition which is contended for may be tolerated in cases where the obvious intention of the legislature can in mo other way be fulfilled, it can never be admitted in those where consistent meaning can be given to the whole clause as its authors thought proper to arrange it, and where the only doubt is, whether the construction which the transposition countenances, or that which results from the reading which the legislature has thought proper to adopt, is most likely to fulfil the supposed intention of the legislature.

Now, although it is true, that the prohibition to pass tender laws of a particular description, and laws impairing the obligation of contracts; relate, both of them, • to contracts, yet, the principle which governs each of them, clearly to be inferred from the subjects with which they stand associated, is altogether different; that of the first forming part of a system for fixing a uniform standard of value, and, of the last, being founded on a denunciation of retrospective laws. It is, therefore, the safest course, in my humble opinion, to construe this clause of the

section according to the arrangement which the Convention has thought proper to make of its different provisions. To insist upon a transposition, with a view to warrant one construction rather than the other, falls little short, in my opinion, of a begging of the whole question in controversy.

But why, it has been asked, forbid the States to pass laws shaking any thing but gold and silver coin a tender in payment of debts, contracted subsequent, as well, as prior, to the law which authorizes it; and j el confine the prohibition to pass laws impairing the obligation of contracts to past contracts, or in other words, to futuie bankrupt laws, when the consequence resulting from each is the same, the latter being considered by the counsel as being, in truth, nothing less than tender laws in disguise. An answer to this question has, in part, been anticipated by some of the preceding observations.

The power to pass bankrupt laws having been vested in Congress, either as an exclusive power, or under the belief that it would certainly be exercised, it is highly probable that State legislation, upon that subject was not within the contemplation of the convention ; or, if it was, it is quite unlikely that the exercise of the power by the State legislatures, would have been prohibited by the use of terms which, I have endeavoured to show, are inapplicable to laws intended to operate prospectively.

For had the prohibition been to pass laws impairing contracts, instead of the obligation of contracts', f admit, .that it would have borne the construction which is contended for, since it is clear that the agreement of the parties in the first case, would be impaired as much by a prior as it would be by a subsequent bankrupt law. .It has, besides, been attempted to be shown, that the limited restriction upon State legislation, imposed by the former prohibition, might be submitted to by (he States, whilst the extern-, sive operation of the latter would have hazarded, to.say the least of it, the adoption of the constitution by the State conventions.

But an answer, still more satisfactory to 'my mind, is this : Tender laws, of the description stated in this section, arc always unjust; and, where there is an existing bankrupt law at the time the contract is made, they can seldom be u sful to the honest debtor. They violate the agreement of the parties to it, without the semblance of an apology for the measure, since they operate to discharge the debtor from his-undertaking, upon terms variant from those by which he bound himself, to the injury of the creditor, and unsupported, in many cases, by the plea of necessity.

They extend relief to the opulent debtor, who does not stand in need of jj i ag we|j as one who is, by misfortune^, often unavoidable, reduced to poverty, and disabled from complying with his engagements, in relation to subsequent contracts, they are unjust whén extended to the former class of debtors, and useless to the second, since they may be relieved by conforming to <he requisitions of the State bankrupt law, where there is one.

Being discharged by this law from all his antecedent debts, and haying his future acquisitions secured to him, an opportunity is afforded him to become once more a useful member of society. If this view of the subject be correct, it will be difficult to prove, that a prospective bankrupt law resembles, in any of its features, a law which should make any thing but gold and silver coin a tender in payment of debts.

I shall now conclude this opinion, by repeating the acknowledgment which candour compelled me to make in its commencement, that the question which l have been examining is involved in difficulty and doubt. But if I could rest my opinion in favour of the constitutionality of the law on which the question arises, on.no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it.

It is but a decent respect due to the wisdom, the integrity; and the patriotism of .the legislative' body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond ail reasonable doubt. This has always been the language of this Court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.

I am perfectly satisfied that it is entertained by those of them from whom it is the misfortune of the majority of the Court to differ on the present occasion, and that they feel no reasbnable doubt of the correctness of the conclusion to which their best judgment has conducted them. My opinion is, that the judgment of the Court below ought to be reversed, and judgment given for the plaintiff in error. Mr. Justice Johnson. This suit was instituted in Louisiana,.in the Circuit Court of the United States, by Saunders, the defendant here, against Ogden, upon certain bills of-exchange.

Ogden, the defendant there, pleads, in barto the action,'a discharge obtained, in due form of law, from the Courts of the State of-New-York, which discharge purports to release him from all'debts and demands existing against him .on a specified day. This demand is one of that description, and the act under which the discharge was obtained, was the act of New-York.of 1801, a date long prior to that of the cause of action on which this suit was instituted.

The discharge is set forth in the plea, ahd represents Ogden as ‘‘ an insolvent debtor, being, on the day and year .therein after mentioned, in prison, in the city and county of New-York, on execution issued against him on some civil action,” &c. It does not appear that any suit had ever been instituted against him by this party, or on this cause of action, prior to the present. The cause below was decided upon a special verdict, in which the jury find, 1st.

That the acceptance of the bills on which the action was instituted, was made by Ogden, in- the city of New-York, on the day's they severally bear dale, the said defendant then residing in the city of New York, and continuing to reside there until a day not specified. 2d. That under the laws of the Slate of New-Yorb, in such case provided, and referred to in the discharge, (which laws are specially found, &c. meaning the State law of 1801,) application was made for, and the defendant obtained, the discharge hereunto annexed. 3d.

Thai, by the laws of New-York, actions on bills of exchange, and acceptances thereof, are limited to the term of six years ; and, 4th. That at the time the said bills were drawn and ac - cepted, the. drawee and the drawer of the same, were resi dents and citizens of the State of Kentucky. On this state of facts the Court, below gave judgment against Ogden, the discharged debtor. We are not in possession of the grounds of the decision below ; and it has been argued here, as having been given upon the general nullity of the discharge, on the ground of its un constitutionality.

But, it is obvious, that it might also have proceeded upon the ground of its nullity, as to citizens of other States, who have never, by any-act of their own, submitfed themselyes to the lex fori of the State that gives the discharge — considering the right given by the constitution .to go into the Courts of the United States upon any contracts, whatever be their lex loci, as modifying and limiting' the general power which States,are acknowledged to possess over contracts formed under control of their peculiar laws.

This question, however, has not been argued, and must not now be considered as disposed of by this decision. The abstract question of the general power of the States to pass laws for the relief of insolvent debtors, will be alone considered. And here, in order to ascertain with precision what we are to decide, it is first proper to consider what this Court has already decided on this subject. And this brings under review the two cases of Sturges v. Crowninshield, and M'Millan v. M'Neal, adjudged in the year 1819, and contained in the 4th vol. of the Reports. If the marginal note to the report, or

summary of the effect of the case of M'Millan v. M'Neal, presented a correct view of the report of that decision, it is obvious, that there would remain very little, if any thing, for this Court to decide. But by comparing the note of the Reporter with the facts of the case, it will be found that there is a generality of expression admitted into the former, which the case itself does not justify. The principle recognised and affirmed in MlMillanv. M'-Neal, is one of universal law, and so obvious and. i'ncontestible that it need be only understood to be assented to.

It is nothing more than this* “ that insolvent laws have no extra-territorial operation upon the contracts of other States ; that the principle is applicable as wel.l to the discharges given under the laws of the Slates, as of foreign countries ; and that the anterior or posterior character of the law under which the discharge is given, with reference to the date of the contract, makes no discrimination in the application of that principle.'1'1 The report of the case of Sturges v. Crowninshield needs also some explanation.

The Court was, in that case, greatly divided in their views -of the doctrine, and the judgment partakes as much of .a compromise, as of a legal adjudicaUon. The minority thought it better to yield'- something than risk the whole.

And, although their course of reasoning led them to the general maintenance of the State power over the subject, controlled and limited alone by the oath administered to all their public functionaries to maintain the constitution of the United States, yet, as denying the power to act upon anterior contracts, could do no harm, but, in fact, imposed a restriction conceived in the true spirit of the constitution, they were satisfied to acquiesce in it, provided the decision were so guarded as to secure the power over posterior contracts, as well from the positive terms of the adjudication, as from inferences deducible from the reasoning •of the Court.

The'case of Sturges v. Crowninshield, then, must, in its authority, be limited to the terms of the certificate, and that certificate affirms.two propositions. 1. That a State has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts within the meaning of the constitution, and provided there' be no act of Congress in force to establish an uniform system of bankruptcy, conflicting with such law. 2. That a law of this description, acting upon prior contracts, is a law impairing the obligation of contracts within the meaning of the constitution.

Whatever inferences or whatever doctrines the opinion of the Court in that case may seem to support, the concluding words of that opinion were intended to control and to confine the-authority of the adjudication to the limits of the certificate. I should, therefore, have supposed, that the question of exclusive power imCongress to pass a bankrupt law was not now open; but it has been often glanced at in argument, and I have no objection to express my individual opinion upon it. Not having recorded my views on this point in the case of Crowninshield, I avail myself of this occasion to do so.

So.far, then, am I from admitting that the constitution affords any ground for this doctrine, that 1 never had a doubt, that the leading object of the constitution was to bring in aid of the States a power over this subject, which their individual powers never could attain to ; .so far from limiting, mo~ diiying, and attenuating legislative power in its known and ordinary exercise in favour of unfortunate debtors, that its sole object was to extend and perfect it, as far as the combined powers Of the States, represented by the general government, could extend it. 'Without that provision, no power would have existed that could extend a discharge beyond the limits of the State in which it was given, but with that provision it might be made co-exteusive with the United States.

This was conducing to one of the'great ends of the constitution, one which it never loses sight of in any of its provisions, that of making an American citizen as free in one State as he was in another. And when we are told that this instrument is tbbe construed with a view to its federative objects, 1 reply that this view alone of the subject is in accordance with its federative character.

Another object in perfect accordance with this, may have :beenthat of exercising a salutary control over the power of' the States, whenever that power should be exercised without due regard to the fair exercise of distributive justice. The general tendency of the legislation of the- Stales at that time to favour the debtor, was a consideration' which entered deeply into many of the provisions of the constitution.

And as the power of the States over the law of their respective forums remained untouched by any other provision of the constitution ; when vesting in Congress the power to pass a bankrupt law, it was worthy of the wisdom of, the Convention to add to it the power to make that system, uniform and universal. Yet, on this subject, the use of the term uniform, instead of general, may well raise a doubt whether it meant more than that such a law should not be partial, but have an equal and uniform application in every part of the Union.

This is in perfect accordance with the spirit in which various other provisions of the constitution are conceived. For these two objects there appears to have been much reason for vesting this power in Congress ; but for extending to the grant the effect of exclusiveness over the power of the States, appears to me not only without reason, but to be. repelled by weighty considerations. 1.

Thercys nothing which, on the face of the constitution, bears the semblance of direct prohibition on the States to exercise this power; and it would seem strange that, if such a prohibition had been in the contemplation of the Convention, when appropriating an entire

section to the enumeration of prohibitions on the Slates, they had forgotten this, if they had intended to enact it. The antithetical language adopted in that section, as to every other subject to which the power of Congress had been previously extended, affords a strong reason to conclude, that some direct and express allusion to the power to pass a bankrupt law would have been here inserted also, if they had not intended that this power should be concurrently, or, at least, subordinately exercised by the States.

It cannot be correct reasoning, to rely upon this fact as a ground to infer that the prohibition must be found in some provision not having that antithetical character, since this supposes an intention to insert the prohibition, which intention can only be assumed. Its omission is a just reason for forming no other conclusion than that it was purposely omitted. But, 2.

It is insisted, that, though not express, the prohibition is to be inferred from the grant to Congress to establish uniform laws on the subject of bankruptcies throughout the United States 5 and that this grant, standing in connexion with that to establish an uniform rule of naturalization, which is, in its nature, exclusive, must receive a similar construction.

There are many answers to be given • to this argument; and the first is, that a mere grant of a State power does not, in itself, necessarily imply an abandonment or relinquishment of the power granted, or we should be involved in the absurdity of denying to the States the power of taxation, and sundry other powers ceded to the general government. But. much less can sucH a consequence follow from vesting in the general government a power' which no State possessed, and which, all of them combined, could not exercise to meet the end proposed in the constitution.

For, if every State in the Union were to-pass a bankrupt law in the same unvarying words, although this would, undoubtedly, be an uniform system of bankruptcy in its literal sense., it would be very far from answering the grant to Congress. There would still need some act of Congress, or some treaty under sanction of

an act of Congress, to give discharges in one State a full operation in the other. Thus, then, the inference which we are called upon to make,, will be found uot to rest upon any actual cession of Slate power, but upon the creatior^of a new power which no Stale ever pretended to possess; a power which, so tar from necessarily diminishing, or impairing the State power over the subject, might find its full exercise in simply recognising as valid, in every. State, all discharges which shall be honestly obtained under the existing laws of any State.

Again; the inference proposed to he deduced from this grant to Congress, will be' found much broader tiran the principle in which the deduction is claimed. For, in this, as in many other instances in. the constitution, the grant implies only the right to assume and exercise a power over the subject.

Why, then, should the State powers cease before Congress shall have acted upon the subj'ect ? or why should that be converted into a present and absolute relinquishment of power, which is, in its nature, merely potential, and dependent on the discretion'of Congress. whether, and wheir, to enter on the exercise of a power that may.supersede it ?

Let any one turn his eye back to the time when this grant was made, and say if the situation of the people admitted of an abandonment of a power so familiar to the jurisprudence .of every State; so universally sustained in its reasonable exercise, by the opinion and practice of mankind, and so vitally important to a people overwhelmed in debt, and urged to enterprise by the activity of mind that is. generated by revolutions and free governments. 1 will with confidence affirm, that the constitution had .never been adopted, had it then been imagined that this question would ever have been made, or that the exercise' of this power in the States should ever have depended upon the views of the tribunals to which that constitution was about to give existence.

The argument proposed to be drawn from a comparison of this power with that of Congress over naturalization, is not a fair one, for the cases are not parallel; and if they were, it is by no means'settled .that the States would have been precluded from this power. if Congress had not assumed it. But. admitting, argumenti gratia, that they would, still there are considerations bearing upon .the one power, which have no application to the other.

Our foreign intercourse being exclusively committed to the general government, it is peculiarly their, province to determine who are entitled to the privileges of 'American citizens, and the protection of the American government.

And the citizens of any one State being entitled by the constitution to enjoy the rights of citizenship in every other State, that fact creates an interest in this particular in each Other’s acts, which does not exist with regard to their bankrupt laws ; since State acts of naturalization would thus be extra-territorial in their operation, and have an influence on the most vital interests of other States.

On these grounds, State laws of naturalization may'be brought under one of the four heads or classes of powers precluded to the States, to wit-: that of incompatibility *, and on this ground alone, if any, could the States be debarred from exercising this power, had Congress not proceeded to assume it. There is, therefore, nothing in that argument. The argument deduced from the commercial character of bankrupt laws is still more unfortunate. It is but necessary to follow it out, and the inference, if any, deducible from it, will be found to be direct and conclusive in favour of the State rights oyer this subject.

For if, in consideration of the power vested in Congress over foreign -commerce, and the commerce between the States, it was proper to vest a power over bankruptcies that should pervade the States; it would seem, that by leaving the regulation of internal commerce in the power of the States, it became equally proper to leave the exercise of this power within their own limits unimpaired. With regard to the universal understanding of the American people on this subject, there cannot bé two opinions.

If ever contemporaneous exposition, and the clear understanding of the contracting parties, or of the legislating -power. (it is no matter in which light it be considered,) could be resorted to as the means of expounding an instrument, the continuing and unimpaired existence of this power in the States, ught never to have been controverted. Nor was it controverted until the repeal of the bankrupt act of 1800, or until a state of things arose in which the means of compeljjng a resort (0 the exercise of this power by. the United States became a subject of much interest.

Previously to that period, the States remained in the peaceable exercise of this power, under circumstances entitled to great consideration. ■ In every State in the Union was the adoption of the constitution resisted by men of the keenest and most comprehensive minds; and if an argument; such as this, so calculated to fasten on the minds of a people, jealous of State rights, and deeply involved in debt, could have been imagined, it never would have escaped them.

Yet no where does it appear t'o havebeen thought of; and, after adopting the constitution, in every part of the Union, we find the very framers of it every where among the leading men in public life, and legislating or adjudicating under- the most solemn oath to maintain the constitution of'the United States, yet no where imagining that, in the exercise of this power, they' violated their oaths, or transcended their rights. Every where, too, the principle was practically acquiesced in, that taking away the power to pass a law on a particular subject was equivalent to a repeal of existing laws on that subject.

Yet in no instance was it contended that the bankrupt laws of the States were repealed, while those on navigation, commerce, the admiralty jurisdiction, and various others,, were at once abandoned without the formality of a repeal. Witt) regard to their bankrupt or insolvent laws, they went on carrying them into effect and abrogating, and re-enacting them, without a doubt of their full and -unimpaired power over the subject.

Finally, when the bankrupt law of 1800 was enacted, the only power that seemed interested in denying the right to the States, formally pronounced a full and absolute recognition of that right. It is impossible for language to be more full and .explicit on the subject, than is the sixth

section of this act of Congress. It acknowledges both the validity of existing laws, arid the right of passing future laws. The practical construction given by that act to the conslitntion is precisely this, that it amounts only to a right to assume the power to legislate on the subject, and, therefore, abrogates or suspends the existing laws, only so far as they may clash with the provisions of the act of Congress• This construction was. universally acquiesced in, for it was that on which there had previously prevailed but one opinion from thedate of the constitution.

Much alarm has been expressed respecting the inharmonious operation of so many systems, all operating at the same time. But I must say that 1 cannot discover any real ground for t|iese.apprehensions. Nothing but a future operation is here contended for, and nothing is easier than to avoid those rocks and quicksands which are visible' to all.

Most of the dangers are imaginary, for the interests of each community, its respect for the opinion-of mankind, and a remnant of moral feeding which will not cease to operate in the worst of times, will always present important barriers against the gross violation of principle. Flow is the general government itself made up, but of the same materials which separately make up the governments of the States ?

It is a very important fact, and calculatedfo dissipate the fears of those who seriously apprehend danger from this quarter, that the powers assumed and exercised by the States over this subject, did not compose any part of the grounds of complaint by Great Britain, when negotiating with our government on the subject of violations of the treaty of peace. Nor is it immaterial as an historical fact, to show the evils against which the constitution really intended to provide a remedy.

Indeed, it is a solecism to suppose, that the permanent laws of any government, particularly those which relate to the administration of justice between individuals, can be radically unequal or even unwise. It is scarcely ever so in despotic governments; much less in those in which the good of the whole is the predominating principle. The danger to be apprehended, is from temporary provisions and desultory legislation ; and this sel.dom has a view to future contracts. .

At all events, whatever be the degree of evil to be produced by such laws, the limits of its action are necessarily confined to the territory of those who inilict it.

The ultimate object in denying to the States this power, would seem to be, to give the evil a wider range, if it be one, by extending the benefit of .discharges "over the whole of the Union But >t is impossible-to suppose, that the framers of the con* stitution could have regarded the exercise' of this power as an eyjj jn tbe abstract, else they would hardly have engraft* ed it upon that instrument which was to become the great safeguard of public justice and public morals.

And had they been so jealous of the exercise of this power in the States, it is not credible'that they would have left unimpaired those unquestionable powers over the administration of justice which the States do exercise, and which, in their immoral exercise, might leave to .the-.ereditor the mere shadow of justice.. The debtor’s person, no one doubts, may be exempted from execution. But there is high precedent for exempting his lands; and public feeling would fully sustain an exemption of his slaves.

What is to prevent the extension of exemption, until nothing is left but the mere mockery of a judgment, without the means of enforcing its satisfaction ? But it is not only in their execution laws, that the creditor has been left to the justice and honour of the States for his security. Every judiciary in the Union owes its existence to some legislative act; what is to prevent a repeal of that act ? and then, what becomes of his remedy, if he has not access to the Courts of the Union ?

Or what is to prevent the extension of the right to imparl ? of the time to plead ? of the interval between the sittings of the State Courts ? Where is the remedy against all this 1 and why wore not these powers taken also from the States, if they „could not be trusted with the subordinate and incidental power here denied them ?.

The ■ truth is, the Convention saw all this,-and saw the impossibility of providing an adequate remedy for such mischiefs, if it was not to be found' ultimately in the wisdom and virtue of the State rulers, under the salutary control of that republican form of' government which it guarantees to every State.

For the/oragner and the citizens of other Stales, it provides the safeguard of a tribunal which cannot be controlled by State laws in the application of the remedy; and for the protection of all, was interposed that oath which it requires to be administered to all the public functionaries, as wejl of the States as the United States, it may be palled the ruling principle of the constitution, to interfere as little as possible between the citizen and his own State government; and hence, with a few safeguards of a very general nature, the executive, legislative and judicial functions of the States are left as they were, as to their own citizens, and as to all internal concerns.

It is not pretended that this discharge could operate upon the rights of the citizen of any other State, unless his contract was entered into in the State that gave it, or unless be had voluntarily submitted himself to the lex fori oi the State before the discharge, in both which instances he is subjected to its effects by his own voluntary act. For these considerations, I pronounce the exclusive power of Congress over the relief of insolvents untenable, and the dangers apprehended from the contrary doctrine ’unreál.

We will next inquire whether- the Slates - are precluded from the exercise of this power by that clause in the constitution, which declares that no State shall “pass any bill of attainder, ex post facto law, or láw impairing the obligation of contracts.” This law of the State of New-York is supposed to have violated the obligation of a contract, by releasing Ogden from a debt which he had not satisfied; and the decision'turns upon the question, first, in what-consists the obligation of a contract? and, secondly, whether the act of New-York will amount to a violation qf that obligation, in the sense of the constitution.

The'first of these questions has ..been so often examined and considered in this and other Courts of the United States, and a® little progress has yet been made in fixing the precise meaning of the words “obligation of a contract,”, that I should turn in despair from the inquiry, were I not convinced that the difficulties the question presents are mostly factitious, and the result of refinement and technicality; or df attempts at definition made in terms defective'both in precision and comprehensiveness.

Right or wrong, I come to my conclusion on their meaning, as applied to executory contracts, the subject now before us, by a simple and shorthanded exposition. Right and obligation are considered bv all ethical writers . as correlative terms : Whatever I by my contract give another a right to require of me, I by that act lay myself under an 0biigatioll to yield or-bestow.' ■ The obligation of every contract will then consist of that right or power over my will or actions, which 1, by my contract, confer on another.

And that right and power will be found to be measured neither by moral law alone, nor universal law alone, nor by the laws of society alone, butby a combination of the three, — an operation in which the moral law is explained and applied by the law of nature, and both modified and adapted to the exigencies of society by positive law. The constitutioh was framed for society, and an advanced slate of society, in which 1 will undertake to say that all the contracts of men receive a relative, and not a positive

interpretation: for the rights of all must beheld and enjoyed in subserviency to the good of the whole. The State construes them,, the State applies them, the State controls them, and the State decides how far the social exercise of the rights they give us over each other can be justly asserted. 1 say the social exercise of these rights, because in a state of nature, they are asserted over a fellow creature, but in a state of society, over a fellow citizen.

Yet, it is worthy of observation, how closely the analogy is preserved between the assertion of these rights in a state of nature and a state of society, in their application to the class of contracts under consideration. Two men, A. and B., having no previous connexion with each other, (we may suppose them even of hostile nations,) are thrown upon a desert island. The first, having had the good fortune to procure food, bestows a part of it upon the other, and he contracts to return an equivalent in. kind.

It is obvious here, that B. subjects himself to something more than the moral obligation of his contract, and that the law of nature, and the sense of mankind, would justify A. in resorting to any means in his- power to compel a compliance with this contract. ‘ But if it should appear that B., by sickness, by accident, or circumstances beyond human control, however superinduced, could not possibly comply with his . contract, the decision would be otherwise, and the exercise of compulsory power over B. would be followed with the indignation of mankind.

He has- carried the power conferred on him over the will or actions of another beyond their legitimate extent, and done injustice in his turn. .“ Summum jus est summa The progress of parties, from the initiation to the con-. summation of their rights, is exactly parallel to this in a state of society. With this difference, that in the concoction of théir contracts, they are controlled by the laws of the society of which they are members; and for the construction and enforcement of their contracts, they rest upon the functionaries of its government.

They can enter into no contract which the laws of that community forbid, and the validity and effect of their contracts is what the existing laws give to them. The remedy is no longer retained in their own hands, but surrendered to the community, to a power competent to do justice, and hound to discharge towards them the acknowledged duties of government to society, according to received principles of equal justice.

The public duty, in this respect, is the substitute for that right which they possessed in a state of nature, to enforce the fulfilment of contracts; and if, even in a state of nature, limits were prescribed by the reason and nature of things, to the exercise of individual power in enacting the fulfilment of- contracts, much more will they be in a state of society.

For it is among the duties of society to enforce the rights of humanity; and both the.debtor and,the society have their interests in the administration of justice, and in the general good; interests which must not'be swallowed up and lost sight of while yielding attention to the claim of the creditor. The debtor may. plead the visitations of Providence, and the society has an interest in preserving every member of the community from despondency — in relieving him from a hopeless state of prostration, in which he would be useless to himself, his family, and the' community.

When that state of things has arrived in which the community has fairly and fully discharged .its duties to the creditor, and in. which,, pursuing the debtor-any longer would destroy the one, without benefitting the other, must ■always be a question, to he determined by the common guardian of the rights of both ; and in’this originates the power exercised .by governments in favour of insolvents.

It grows oat of the administration of justicer and is a necessary appendage to it; There was a time when a different idea prevailed, and then it was supposed that the rights of the creditor required the sale of the debtor, and his family, A similar notion now prevails on the coast of Africa, and is often exercised there by brute force. It is worthy only of tire country in which it now exists, and of that state of society in which it once originated and prevailed. 46 Lex non cergit ad imposmbiliaf1 is a maxim applied by law to the contracts of° parties in a hundred ways.

And where isAhe objection, in a moral or political view, to applying it to the exercise of the power to relieve insolvents ? It is in analogy with this maxim, that the power to relieve them is exercised ; a‘nd if it never was imagined, that, in other cases, this maxim violated the obligation of contracts, I see no reason why the fair, ordinary, and reasonable eXer* 'cise of it in this instance, should be subjected to that imputation.

If it be objected to these views of the subject, that they are as applicable to contracts prior to the law, as to tboste posterior to it, and, therefore, inconsistent with the'decisión in the case of Sturges v. Crowninshield, my reply is, that I think this no objection to its correctness. I entertained this opinion then, and have seen no reason to doubt it since.

But if applicable to the case of prior debts, multo fortiori, will it be so to those contracted subsequent to suph a law; the posterior date of the contract removes all doubt of its being in the fair, and unexceptionable administration of justice that the discharge is awarded. I must not be' understood here, as reasoning upon the assumption that the remedy is grafted. into the contract, i hold the doctrine untenable, and infinitely more restrictive on State power than the doctrine contended for by the opposite party.

Since, if the remedy enters into the contract, then the States lose all power to alter their lSws for the administration of justice. Yet, 1 freely admit, that the remedy enters into the' views of the parties when contracting; that the constitution pledges the States to every creditor for the full, and fair, and°candid exercise of State power to the ends bf justice, according to its ordinary administration, tminfluenced by views to lighten, or lessen, or defer the obligation to which each contract fairly and legally subjects the individual who enters into it.

Whenever an individual enters into a contract, 1 think his assent is to be inferred, to abide by those rules in the administration of justice which belong to the jurisprudence of the country of the contract. And when compelled to pursue his debtor in other States, lie is equally bound to acquiesce in the law of the forum to which he subjects himself.

The law of the contract remains the same every where, and it will be the same in every tribunal; hut the remedy necessarily varies, and with it the effect of the constitutional pledge, which can only have relation to the laws of distributive justice known to the policy of each State severally. It is very true, that inconveniences may occasionally grow out of irregularities in the administration of justice by the States.

But the citizen of the same State is referred to his influence over his ohm institutions for his security, and the citizens of the other States have, the institutions and powers of the general government to resort to. And this is all the security the constitution ever intended to hold out against the undue exercise of the power of the . States over their own contracts, and their own jurisprudence.

But, since a knowledge of the laws, policy, and jurisprudence of a State, is necessarily imputed to every one entering into contracts within its jurisdiction, of what surprise can he complain, or what violation of public faith, who still enters into contracts under that knowledge?

It is no reply to urge; that, at the same time knowing of the constitution, he had a right -to suppose the discharge void -and inoperative, since this would be but speculating on a legal opinion, in which, if he proves mistaken, he has still nothing to complain of but his own temerity, and concerning which, all that come after this decision, at least, cannot complain of being misled by their ignorance or misapprehensions. Their knowledge of the existing laws of the State will henceforward be unqualified, and was so, in the view of the law,- before this decision was made.

It is now about twelve or fourteen years since I was called upon, on my circuit, in the case of Gell, Canonge & Co. v. L. Jacobs, to review all this doctrine. The cause was ably argued by gentlemen whose talents are well known in this capítol, and the opinions which I then formed, I have seen no reason since to distrust. It appears to me, that a great' part of the difficulties of the cause, arise from not giving sufficient weight to the general intent of this clause in the constitution, and subjecting it to a severe literal construction, which would be better adapted to special pleadings.

By classing bills of attainder, ex post facto'\o.ws, and laws impairing the obligation of contracts together, the general intent becomes very apparent; it is a general provision against arbitrary and tyrannical legislation over existing rights; whether of person or property. It is true, that some confusion has arisen from an. opinion, which seerrs early, and without due, examination, to have found its way into this Court; that the phrase ■“ ex post facto f was confined to laws affecting criminal acts alone.

The fact, upon, examination, will be found otherwise-; for neither in its signification or uses is it thus restricted. It applies, to civil as well as to criminal acts, (1 Shep.

Touch. 68. 70. 73.)-and with this enlarged signification attached to that phrase, the purport of the clause would be, “ that the States shall pass no law, attaching to' the acts of, individuals other effects or consequences than those attached to them by the laws existing at their dale ; and all contracts .thus, construed, shall be enforced according to their just and reasonable purport But to assign to contracts, universally, a literal purport, and to exact for them a rigid literal fulfilment, cbuld not have been the intent of the constitution. It is - repelled by a hundred examples.

Societies exercise a positive control as well.over the inception, construction, and fulfilment Of contracts, as over the form and measure; of the remedy to enforce them. As instances of the first, take the contract imputed to the drawer of a bill, or endorser of a note, with its modfficalions; the deviations of the law from' the literal contract of the parties to a penal bond, a mortgage, a policy of insurance; bottomry, bond, and various others that might be enumerated.

And for instances of discretion exercised in applying the remedy, take the time for which executors are exempted from suit; the exemption of members of legislatures ; of judges ; of persons attending Courts, or going to elections; the preferences given in the marshalling of assets ; sales on credit for a present debt; shutting of Courts altogether against gaming debts and usurious contracts, and above all, acts of limitation. I hold it impossible to maintain the constitutionality of

an act of limitation, if the modification of the remedy against debtors, implied in the discharge of insolvents, is unconstitutional. I have seen no distinction between the cases that can bear examination. It is in vain to say that acts of limitation appertain to the remedy only : both descriptions of laws appertain to the remedy, and exactly in the same way ; they put a period to the remedy, and upon the same terms, by what has been called, a tender of paper money in the form of a plea, and to the advantage of the insolvent laws, since if the debtor can pay, he has been made to pay.

But the door of justice is shut in the face of the creditor in the other instance, without an inquiry on the subject of the debtor’s capacity to pay. And it is equally vain to say, that the act of limitation raises a presumption of payment, since it cannot be taken advantage of on the general issue, without provision by statute ; and the only legal form of a plea implies an acknowledgment that the debt has not been paid. Yet so universal is the assent of mankind in favour of limitation acts, that it is the opinion of profound politicians, that no nation could subsist without one.

The right, then, of the creditor, to the aid of the public arm for the. recovery of contracts, is not absolute and unlimited, but may be modified by the necessities or policy of societies. And this, together with the contract itself, must be taken by the individual, subject to such restrictions and conditions as are imposed by the laws of the country. The right to pass bankrupt laws is asserted by every civilized nation in the world.

And in no writer, I will venture to say, has it ever been suggested, that the power of annulling such contracts, universally exercised under their bankrupt or insolvent systems, involves a violation of the obligation of contracts. In international law, the subject is perfectly under* stood,-and the right generally acquiesced in; and yet the deüial of justice is, by the same code, an acknowledged cause of war.

But, it is contended, that if the obligation of a contract has relation at all to the laws which give or modify the remedy, then the obligation of a contract is ambulatory, arid uncertain, and will mean a different thin^'bn every State in which it may be necessary to enforce the contract. There is no question that this effect follows; and yet; after this concession, it will still remain to be shown how any violation of the obligation of the contract can arise from that cause.

It is a casualty well known to the creditor when he enters into the contract; and if obliged to prosecute his rights in another State, what more can he claim of that State, than that its Courts shall be open to him on the same terms on which they are open to other individuals ? It is only by voluntarily subjecting himself to the lex fori of a State, that he can be brought .within the provisions of its statutes in favour of debtors, since, in no other instance, does' any State pretend to a right to discharge the contracts entered into in another State.

He who enters into a pecuniary contract, knowing that he may. have to pursue his debtor, if he flees from justice, casts himself, in fact, upon the justice of nations. It has also been urged, with an earnestness that could only proceed from deep conviction, that insolvent laws were tender laws of the wors description, and that it is impossible to maintain the constitutionality of insolvent laws that have a future operation, without asserting the right of the States to pass tender laws, provided such laws are confined to a future operation. Yet to all this there appears to be a simple and conclusive answer.

The prohibition in the constitution to make any thing but gold or silver coin a tender in payment of debts is express and universal. The framers of the. constitution regarded it ás an evil to be repelled without modification; they have, therefore, left nothing to be inferred or deduced from construction on this-subject. But the contrary is the fact with regard to insolvent laws ; it’ contains no express prohibition to pass such laws,.and we are called upon here to deduce .such a prohibition from a clause, 'which is any1 thing but explicit, and which already has been judicially dedared

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