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considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense lossess, are the sources of ruinous speculations, and destroy all proper confidence between man and man. In no country, more than our own, had these truths been felt in all their force. In ǹone had more intense suffering, or more wide-spreading ruin accompanied the system. It was, therefore, the object of the prohibition to cut up the whole mischief by the roots, because it had been deeply felt throughout all the states, and had deeply affected the prosperity of all. The object of the prohibition was not to prohibit the thing, when it bore a particular name; but to prohibit the thing, whatever form or name it might assume. If the words are not merely empty sounds, the prohibition must comprehend the emission of any paper medium by a state government for the purposes of common circulation. It would be It would be preposterous to suppose, that the constitution meant solemnly to prohibit an issue under one denomination, leaving the power complete to issue the same thing under another. It can never be seriously contended, that the constitution means to prohibit names, and not things; to deal with shadows, and to leave substances. What would be the consequence of such a construction? That a very important act, big with great and ruinous mischief, and on that account forbidden by words the most appropriate for its description, might yet be performed by the substitution of a name. That the constitution, even in one of its vital provisions, might be openly evaded by giving a new name to an old thing. Call the thing a bill of credit, and it is prohibited. Call the same thing a certificate, and it is constitutional.

§ 694. The next prohibition is, that no state shall "make any thing but gold and silver coin, a tender in payment of debts." This clause was manifestly founded in the same general policy, which procured the adoption of the preceding clause. The history, indeed, of the various laws, which were passed by the states in their colonial and independent character upon this subject, is startling at once to our morals, to our patriotism, and to our sense of justice. Not only was paper money issued, and declared to be a tender in payment of debts; but laws of another character, well known under the appellation of tender laws, appraisement laws, instalment laws, and suspension laws, were from time to time enacted, which prostrated all private credit, and all private morals. By some of these laws, the due payment of debts was suspended; debts were, in violation of the very terms of the contract, authorized to be paid by instalments at different periods; property of any sort, however worthless, either real or personal, might be tendered by the debtor in payment of his debts; and the creditor was compelled to take the property of the debtor, which he might seize on execution, at an appraisement wholly disproportionate to its known value. Such grievances, and oppressions, and others of a like nature, were the ordinary results of legislation during the revolutionary war, and the intermediate period down to the formation of the constitution. They entailed the most enormous evils on the country; and introduced a system of fraud, chicanery, and profligacy, which destroyed all private confidence, industry, and enterprise.


§ 695. The next prohibition is, that no state shall pass any bill of attainder, ex post facto law, or law "impairing the obligation of contracts." The two form

er require no commentary, beyond what has been already offered, under a similar prohibitory clause applied to the government of the United States. The same policy and principles apply to each. It would have been utterly useless, if not absurd, to deny a power to the Union, which might at the same time be applied by the states to purposes equally mischievous, and tyrannical; and which might, when applied by the states, be for the very purpose of subverting the Union. Before the constitution of the United States was adopted, every state, unless prohibited by its own constitution, might pass a bill of attainder, or ex post facto law, as a general result of its sovereign legislative power. And such a prohibition would not be implied from a constitutional provision, that the legislative, executive, and judiciary departments shall be separate, and distinct; that crimes shall be tried in the county, where they are committed; or that the trial by jury shall remain inviolate. The power to pass such laws would still remain, at least so far as respects crimes committed without the state. During the revolutionary war, bills of attainder, and ex post facto acts of confiscation were passed to a wide extent; and the evils resulting therefrom were supposed, in times of more cool reflection, to have far outweighed any imagined good.

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§ 696. THE remaining clause, as to impairing the obligation of contracts, will require a more full and deliberate examination.

§ 697. In the first place, what is to be deemed a contract, in the constitutional sense of this clause? A contract is an agreement to do, or not to do, a particular thing; or (as was said on another occasion) a contract is a compact between two or more persons. A contract is either executory, or executed. An executory contract is one, in which a party binds himself to do, or not to do, a particular thing. An executed contract is one, in which the object of the contract is performed. This differs in nothing from a grant; for a contract executed conveys a chose in possession; a contract executory conveys only a chose in action. Since, then, a grant is in fact a contract executed, the obligation of which continues; and since the constitution uses the general term, contract, without distinguishing between those, which are executory, and those, which are executed; it must be construed to comprehend the former, as well as the latter. A state law, therefore, annulling conveyances between individuals, and declaring, that the grantors shall stand seized of their former estates notwithstanding those grants, would be as repugnant to the constitution, as a state law discharging the vendors from the obligation of executing their contracts of sale

by conveyances. It would be strange, indeed, if a contract to convey were secured by the constitution, while an absolute conveyance remained unprotected. That the contract, while executory, was obligatory; but when executed, might be avoided.

§ 698. Contracts, too, are express, or implied. Express contracts are, where the terms of the agreement are openly avowed, and uttered at the time of the making of it. Implied contracts are such, as reason and justice dictate from the nature of the transaction, and which therefore the law presumes, that every man undertakes to perform. The constitution makes no distinction between the one class of contracts and the other. It then equally embraces, and applies to both. Indeed, as by far the largest class of contracts in civil society, in the ordinary transactions of life, are implied, there would be very little object in securing the inviolability of express contracts, if those, which are implied, might be impaired by state legislation. The constitution is not chargeable with such folly, or inconsistency. Every grant in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to re-assert it. A party is, therefore, always estopped by his own grant. How absurd would it be to provide, that an express covenant by him, as a muniment attendant upon the estate, should bind him for ever, because executory, and resting in action; and yet, that he might re-assert his title to the estate, and dispossess his grantee, because there was only an implied covenant not to re-assert it.

§ 699. In the next place, what is the obligation of a contract? It would seem difficult to substitute words more intelligible, or less liable to misconstruction, than these. And yet they have given rise to much acute

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