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and property would be constantly exposed to all the hazards of an uncertain and fluctuating currency.

§ 248. The states are also forbidden to make any thing but gold and silver coin a legal tender in payment of debts. If they could have made any thing else a good tender, there is no species of depreciated currency which might not be paid for debts; and the difficulties, dishonesty, and bankruptcies attendant upon such a state of things will be easily understood. Any thing may be borne in civil society with more ease than that which interrupts the regular course of business, obstructs the due administration of justice, and prevents the just payment of debts. The emission of Bills of Credit, and the making any thing but coin a legal tender by the states, would produce all these mischiefs. During the revolution,' and both subsequent and anterior to it, the resort to such means had reduced public credit to utter contempt, and ruined thousands of honest and industrious citizens. It was the recent experience of these evils, and the inconsistency of such powers in the states, with the existence of a national government, which prompted the prohibitions we have just recited.

§ 249. It is prohibited to the states, as well as to the general government, to pass any bills of attainder or ex post facto laws. The reason is the same. The same injustice would be worked in either case. Such laws, at all times unjust and inexpedient, are peculiarly so in a country where the whole basis of the government is right and justice.

§ 250. The states cannot impair the obligation of contracts. This is one of the most important provisions of the Constitution, and has already occasioned much discussion, and been illustrated by several judicial decisions.

§ 251. The first inquiry is, what is a contract? A contract is an agreement to do or not to do a particular thing. It must be made between two or more persons.3

1 2 Pitkin's Civil History, p. 156, 157. 22 Blackst. Comm. 443. 3 Idem; 3 Story's Comm. 241.

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§ 252. Contracts may be either executory or executed.

An executory contract is one in which a party binds himself to do or not to do something hereafter. Thus, if two men agree to exchange horses next week, or one of them agrees to do work to-morrow, and the other to pay money for it, these contracts are executory, because they are to be performed at a future time.

§ 253. But, a contract executed is one in which the act to be done is performed at once. As, if two men agree to exchange horses now, and do it on the spot, or one agrees to convey land, and makes and delivers the deed on the spot, such contracts are executed, because the act required to be done is done at once.

§ 254. A grant and a contract executed are the same thing. A contract executed conveys a thing in possession. A contract executory conveys a thing in action.

§ 255. Contracts are also express or implied.' Express contracts are those of which the terms are expressed in the agreement; implied contracts are those which are necessarily inferred from the nature of the agreement. An agreement that I shall pay so much for on ox is an express contract. If a man work for me, for my benefit, reason, justice, and the law all imply a contract that I shall pay him for it. Both these kinds of contracts are included in the general words of the Constitution.

§ 256. The Supreme Court have decided, that a contract and a compact are one and the same thing.*

§ 257. As the term contract in the Constitution is not limited, it signifies both contracts executed and executory. A grant, therefore, is such a contract as cannot be impaired by the states. Such was the decision in Fletcher vs. Peck. There the state of Georgia had granted away certain lands to Peck, who had conveyed 1 Blackst. Comm. 443; 3 Story's Comm. 241. 2 Wheaton, 197; 12 Wheaton, 256. $2 Blackst. Comm, 443. 46 Cranch, 136. Ídem.

them to Fletcher for a valuable consideration; subsequent to which, the state of Georgia cancelled their grant to Peck. Fletcher sued on the covenant of warrantee, and the court held that the law cancelling the grant was unconstitutional, because impairing a contract, which had already vested in Fletcher a right to the land.

§ 258. The next inquiry is, what is the obligation of contracts? There are two kinds of obligations to contracts,—moral and legal. The obligation contemplated by the Constitution is a legal obligation:1 it is one arising under civil laws; for a moral obligation cannot be impaired or enforced by human laws. The obligation, then, meant by the Constitution, must be one which arises either from the enactments of a state, or can be influenced by those enactments. If, then, a contract is, by the laws of the place where it is made, illegal and void, that contract has no civil obligation, and no action can arise upon it. When it arises from civil laws, and is not by these laws illegal and void, then it is such an obligation as may be impaired, and consequently such a one as comes within the scope of the Constitution.

But

§ 259. The obligation, therefore, must be a civil one, and it must be valid according to the municipal law. It cannot then subsist contrary to the positive law. may it exist independently of it? May it exist without a remedy? Thus, if two persons make a contract of a kind which, though by the laws of the state it is perfectly valid to make, yet by the laws of the state cannot be enforced, has that contract an obligation within the meaning of the Constitution? If it has, what is it? The only obligation which it would seem to have is a moral one. That undoubtedly it has. But a moral obligation, it is conceded on all hands, cannot be impaired, and consequently is not the obligation meant.

§ 260. On this point there is great diversity of 1 Ogden vs. Saunders, 12 Wheaton, 257. 2 3 Story's Comm. 245.

opinion. It is stated on high authority' that the obligation may exist independently of positive law, and be perfect without a remedy. The examples given, however, do not appear to confirm the principle laid down. Thus it is said, that a state may have taken away ❝imprisonment for debt, and the debtor may have no property; but still the right of the creditor remains, and he may enforce it against the future property of the debtor. So a debtor may die without leaving any known estate, or without any known representative. In such cases we should not say that the right of the creditor was gone, but only there was nothing on which it could presently operate. But, suppose an administrator should be appointed, and property in contingency should fall in, the right might then be enforced to the extent of the existing means." These examples are cited by the learned commentator, to show that right may exist without a remedy. With due deference to an opinion which is at once authoritative and respected, it is thought that he has, in these examples, manifestly confused the remedy given by the law, with the object upon which that remedy acts. What is a remedy at law? We are told by an authority,' at least as high as the one above cited, that "the law consists of several parts, one declaratory, whereby the rights and wrongs are clearly classified and laid down; another directory, whereby the subject is instructed to observe these rights, and abstain from these wrongs; a third remedial, whereby a method is pointed out to recover his rights, or redress his wrongs."

§ 261. Here the remedy in law is defined to be the method whereby a man may recover his rights, or redress his wrongs. Now, in the example first cited above, of a debt, the remedy, or the method given by law is, first the action of debt, next the judgment upon that action, and lastly the execution under that judgment; 13 Story's Comm. 247. 2 Idem. 31 Blackst. Comm. 53, 54.

now the person or property of the debtor constitutes the object upon which that remedy acts: both may be out of the reach of the remedy, and yet the remedy exist, and be perfect at law. It is not perfect in its consequences, merely because other circumstances, disconnected from the remedy, have prevented that remedy from attaching to the object. The remedy in the example above stated attaches to the property; that property, by one of the conditions of human life, whether poverty or misfortune, does not exist. Here then the right to a remedy is perfect: the remedy itself, viz. action, judgment, and execu tion is perfect; but the object upon which the remedy is to attach is out of reach. The case is the same in the second example, of an intestate dying without an estate or representative. The municipal laws of almost every civilized state either require that the Probate Court should appoint an administrator, or give power to the creditor to have one appointed. The administrator being appointed, the second example is precisely the same as the first: the administrator, as the representative of the intestate, is the debtor, and the right, the remedy, and the object the same as in the other case.. The remedy here spoken of is the remedy at law. The circumstance of the existence of property or not, on which the remedy can attach, is one which constitutes no part of the remedy at law; for it is obviously one which no human law can regulate. If human intelligence could have devised a means by which the debtor should always have property to answer the demands of his creditor, it would be an act of wisdom which never would have been neglected. We may conclude, then, that if a right can exist without a remedy to enforce it, these are not examples of it. Are there any other examples, either real or imaginary, by which such a principle can be illustrated?

§ 262. The meaning of the term obligation always implies a power to enforce it. To oblige is to compel

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