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personal distinctions which arise from, and originate aristocracies in other countries.

The second clause, in reference to offices and titles from foreign powers, is made as a check against the corruption of the officers and citizens of this government by the princes and ministers of foreign states.


241. Clause 1st. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

242. The power to enter into any treaty, alliance, or confederation, is one of the most important attributes of national sovereignty: when the states parted with it, they parted with one of those characteristics which made them independent, as it respects each other. This should be borne in mind, as it will be seen in the end that they parted with them all, and thus divested themselves of all that national sovereignty, which in modern times is the sole foundation of the strange and fanciful theories put forth under the name of state rights.

This right to make separate treaties and alliances was yielded up by the old articles of confederation; for it was perfectly plain and palpable that the states could not retain it and form one united nation: the latter was their object, and they yielded the former.

243. Letters of Marque and Reprisal are a commission from the sovereign authority to a citizen or subject to make reprisals on the vessels or property of for eign nations who have injured the one granting them.1

1 Vattel, book 2d, chap. 18th, section 346.

The right of issuing these is prohibited to the several states. It lies in the government of the Union. The reason of this also is obvious. Letters of Marque1 are merely introductions to war; and if one state had the right to issue them independent of the rest, all the others might immediately be involved in war by the instrumentality of that one. It will be remarked, that this right again is, by the definition, an attribute of national sovereignty, and is therefore taken from the states and vested in the government of the nation.

244. The right of coining money is also a right of sovereignty, and is vested in the general government. If the right of coinage was vested in the several states, then there would be no uniformity in the standard of value, and spurious coin might be circulated.

§ 245. The next prohibition is that against issuing "Bills of Credit." What is a Bill of Credit? A Bill of Credit3 is defined to be paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day.

§ 246. Is it necessary to constitute a Bill of Credit, that it should be made a legal tender? In the case of Craig vs. the state of Missouri, the Supreme Court decided that it was not necessary that they should be made a legal tender in order to constitute them a Bill of Credit. In that case the state of Missouri made loans on certain certificates, issued by the Auditor and Treasurer of the state, of various denominations, and which were made receivable at the treasury in payment of taxes and debts, and by public officers in payment of their salaries. They bore interest, and were redeemable by the state. Such certificates were de

13 Story's Comm. 219. 2 Vattel, book 1, chap. 10th, sect. 106, 107. 33 Story's Comm. 227. 44 Peters' Supreme Court Reports, 410.


cided by the court to be Bills of Credit, and as such unconstitutional.

247. The object of the prohibition was to prevent the flood of depreciated currency which had so embarrassed the states during and subsequent to the revolutionary war. It is plain that without this and the accompanying clauses in relation to coins and currency, there could be no fixed standard of value, and commerce 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. same injustice would be worked in either case.

12 Pitkin's Civil History, p. 156, 157.



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 agreement1 to do or not to do a particular thing. It must be made between two or more persons.2

252. Contracts may be either executory or executed.3

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 possesA 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

12 Blackst. Comm. 443. 2-Idem; 3 Story's Comm. 241. $ Idem. 44 Wheaton, 197; 12 Wheaton, 256. 62 Blackst.

Comm. 443.

an 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.1

§ 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 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 :3 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

16 Cranch, 136. 12 Wheaton, 257.

2 Idem. 3 Ogden vs. Saunders, 43 Story's Comm. 245.

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