If the thing, whatever form or name it might assume. 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 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. § 236. Connected with this, is the prohibition, No State shall "make any thing but gold and silver coin a tender in payment of debts." The history of the State laws on this subject, while we were Colonies, as well as during the Revolution, and afterwards before the adoption of the Constitution, is startling at once to our morals, to our patriotism, and to our sense of justice. In the intermediate period between the commencement of the Revolutionary War, and the adoption of the Constitution, the system had attained its most appalling character. Not only was paper money declared to be a tender in payment of debts; but other laws, having the same general object, and interfering with private debts, under the name of appraisement laws, instalment laws, and suspension laws, thickened upon the statute book of many States in the Union, until all public confidence was lost, and all private credit and morals were prostrated. The details of the evils, resulting from this source, can scarcely be comprehended in our day. But they were so enormous, that the whole country seemed involved in a general bankruptcy; and fraud and chicanery obtained an undisputed But the language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word "emit" is never employed in describing those contracts, by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use. Nor are instruments, executed for such purposes, in common language denominated "bills of credit." To emit bills of credit, conveys to the mind the idea of issuing paper, intended to circulate through the community for ordinary purposes, as money, which paper is redeemable at a future day. This is the sense, in which the terms of the Constitution have been generally understood. The phrase (as we have seen) was well known, and generally used to indicate the paper currency, issued by the States during their colonial dependence. During the war of our Revolution, the paper currency issued by Congress was constantly denominated, in the acts of that body, bills of credit; and the like appellation was applied to similar currency issued by the States. The phrase had thus acquired a determinate and appropriate meaning. At the time of the adoption of the Constitution, bills of credit were universally understood to signify a paper medium intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society. Such a medium has always been liable to considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense losses, 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 none, 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 If the thing, whatever form or name it might assume. 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 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. § 236. Connected with this, is the prohibition, No State shall make any thing but gold and silver coin a tender in payment of debts." The history of the State laws on this subject, while we were Colonies, as well as during the Revolution, and afterwards before the adoption of the Constitution, is startling at once to our morals, to our patriotism, and to our sense of justice. In the intermediate period between the commencement of the Revolutionary War, and the adoption of the Constitution, the system had attained its most appalling character. Not only was paper money declared to be a tender in payment of debts; but other laws, having the same general object, and interfering with private debts, under the name of appraisement laws, instalment laws, and suspension laws, thickened upon the statute book of many States in the Union, until all public confidence was lost, and all private credit and morals were prostrated. The details of the evils, resulting from this source, can scarcely be comprehended in our day. But they were so enormous, that the whole country seemed involved in a general bankruptcy; and fraud and chicanery obtained an undisputed mastery. Nothing but an absolute prohibition, like that contained in the Constitution, could arrest the overwhelming flood; and it was accordingly hailed with the most sincere joy by all good citizens. It has given us that healthy and sound currency, and that solid private credit, which constitute the true foundation of our prosperity, industry, and enterprise. § 237. The prohibition, to "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," requires scarcely any vindication or explanation, beyond what has been already given. The power to pass bills of attainder, and ex post facto laws, (the nature of which has been already sufficiently explained,) is quite as unfit to be intrusted to the States, as to the General Government. It was exercised by the States during the Revolutionary War, in the shape of confiscation laws, to an extent, which, upon cool reflection, every sincere patriot must regret. Laws "impairing the obligation of contracts" are still more objectionable. They interfere with, and disturb, and destroy, private rights, solemnly secured by the plighted faith of the parties. They bring on the same ruinous effects, as paper tender laws, instalment laws, and appraisement laws, which are but varieties of the same general noxious policy. And they have been truly described, as contrary to the first principles of the social compact and to every principle of sound legislation. § 238. Although the language of this clause, "law impairing the obligation of contracts," would seem, at first view, to be free from any real ambiguity; yet there is not perhaps a single clause of the Constitution, which has given rise to more acute and vehement controversy. What is a contract? What is the obligation of a contract? What is impairing a contract? To what classes of laws does the prohibition apply? To what extent does it reach, so as to control prospective legislation on the subject of contracts? These and many other questions, of no small nicety and intricacy, have vexed the legislative halls, as well as the judicial tribunals, with an uncounted variety and frequency of litigation and speculation. tract, 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 thing in possession; a contract executory conveys only a thing 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. § 240. 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 them. 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 equally 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 |