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. (a)

(a) See Cummings v. Missouri, 4 Wall. 277; note to § 1344, ante.

CHAPTER XXXIV.

PROHIBITIONS ON THE STATES IMPAIRING CONTRACTS.

§ 1374. THE remaining clause, as to impairing the obligation of contracts, will require a more full and deliberate examination. The Federalist treats this subject in the following brief and general manner. "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of their fundamental character. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added. this constitutional bulwark in favor of personal security and private rights, &c. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen, with regret and indignation, that sudden changes and legislative interferences (a) in cases affecting personal rights became jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link in a long chain of repetitions, every subsequent interference being naturally provoked by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society."1(b) 1 The Federalist, No. 44.

(a) As to legislation of the Confederate States, see Dewing v. Perdicaries, 96 U. S. 193; Williams v. Bruffy, Id. 176; Wilmington R. Co. v. King, 91 U. S. 3; Delmas v. Merchants' Ins. Co., 14 Wall. 661.

(b) As to the consequences of treating a contract invalid under the Constitution, see Louisiana v. Pilsbury, 105 U. S. 278.

And

§ 1375. With these remarks the subject is dismissed. yet, perhaps, there is not a single clause of the Constitution which has given rise to more acute and vehement controversy; and the nature and extent of whose prohibitory force has called forth more ingenious speculation, and more animated juridical discussion. 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.

§ 1376. In the first place, what is to be deemed a contract in the constitutional sense of this clause? (a) 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

1 1 Kent's Comm. Lect. 19, p. 387.

2 Sturgis v. Crowninshield, 4 Wheat. R. 197. See also Green v. Biddle, 8 Wheat. R. 92; Ogden v. Saunders, 12 Wheat. R. 256, 297, 302, 316, 335; Gordon v. Prince, 3 Wash. Cir. Ct. R. 319.

Fletcher v. Peck, 6 Cranch, 136.

(a) Marriage is not a contract within the meaning of this provision. Maynard v. Hill, 125 U. S 190; Hunt v. Hunt, 24 L. C. Pub. Co. 1109; Randall v. Kruger, 23 Wall. 137. Nor is a judgment in tort, to pay damages. Louisiana v. New Orleans, 109 U. S. 285. Nor is a State constitution. Church v. Kelsey, 121 U. S. 282. But a provision in a State constitution may impair contracts. Fisk v Jefferson Police Jury, 116 U. S. 131; White v. Hart, 13 Wall. 646; Delmas v. Merchants' Ins. Co., 14 Wall. 661. Further as to "contracts," see Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; New Orleans Gas Co. v. Louisiana Heat Co., Id. 650; New Orleans Waterworks Co. v.

Rivers, Id. 674; Hagood v. Southern, 117 U. S. 52 (tax certificates); McGahey v. Virginia, 135 U. S. 662 (tax coupons), reviewing cases of the kind, among them Royall v. Virginia, 116 U. S. 572; Hartman v. Greenhow, 102 U. S. 672; Antoni r. Greenhow, 107 U. S. 769; Poindexter v. Greenhow, 114 U. S. 270; Newton v. Mahoning, 100 U. S. 548 (statute fixing county seat, afterwards repealed); Union Railway Co. v. Philadelphia, 101 U. S. 528; Farrington v. Tennessee, 95 U. S. 679; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Humphrey v. Pegues, 16 Wall. 244; Wilmington R. Co. v. Reid, 13 Wall. 264; Raleigh R. Co. v. Reid, Id. 269.

nothing from a grant;1 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 should 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.3 (a)

§ 1377. 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 reassert it. A party is, therefore, always estopped by his own grant. How absurd would it be to provide, that an express covenant by him

1 Ibid., and 2 Black. Comm. 443. 8 Fletcher v. Peck, 6 Cranch, R. 137. 5 Fletcher v. Peck, 6 Cranch's R. 137; R. 657, 658, 688, 689.

(a) See People v. Platt, 17 Johns. 195; Rehoboth v. Hunt, 1 Pick. 224; Lowry v. Francis, 2 Yerg. 534; University of Vir

2 2 Black. Comm. 443. 4 2 Black. Comm. 443. Dartmouth College v. Woodward, 4 Wheat.

ginia v. Foy, 2 Hayw. 310; Grogan v. San Francisco, 18 Cal. 590; Louisville v. University, 15 B. Monr. 642.

as a muniment attendant upon the estate, should bind him forever, because executory and resting in action; and yet, that he might reassert his title to the estate, and dispossess his grantee because there was only an implied covenant not to reassert it.

§ 1378. In the next place, what is the obligation of a contract? (a) 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 disquisition as to their real meaning in the Constitution. It has been said, that right and obligation are correlative terms. Whatever I, by my contract, give another a right to require of me, I, by that act, lay myself under an obligation to yield or bestow. The obligation of every contract, then, will consist of that right, or power over my will or actions, which I, by my contract, confer on another. And that right and power will be found to be measured, neither by moral law alone, nor by universal law alone, nor by the laws of society alone, but by a combination of the three; an operation, in which the moral law is explained and applied by the law of nature, and

(a) See Walker v. Whitehead, 16 Wall. 314 ("the law which binds the parties to perform their agreement"); Connecticut Life Ins. Co. v. Cushman, 108 U. S. 51, Louisiana v. New Orleans, 102 U. S. 203. In the last case Mr. Justice Field defines the "obligation of a contract" as "the means provided by law by which" the contract "can be enforced, by which the parties can be obliged to perform it." Hence "whatever legislation lessens the efficacy of these means impairs the obligation." Further, see Hartman v. Greenhow, 102 U. S. 672; Hall v. Wisconsin, 103 U. S. 5; United States v. New Orleans, 103 U. S. 358; New Haven Co. v. Hamersley, 104 U. S. 1; Bonaparte v. Baltimore, 104 U. S. 592; Clay v. Society for Savings, 104 U. S. 579; New York Guaranty Co. v. Louisiana, 105 U. S. 622; New Orleans r. Morris, 105 U. S. 600; Greenwood v. Union Freight Co., 105 U. S. 13; Merchants' Bank v. United States, 101 U. S. 1 (federal tax for paying out the notes of banks, held constitutional, on authority of Bank v. Fenno, 8 Wall. 539); Blount v. Windley, 95 U. S. 173

(allowing set-off); Murray v. Charleston, 96 U. S. 432 (taxing municipal creditors). States are within the provision of the Constitution as well as individuals. United States v. New Orleans and Hall v. Wis

consin, supra. "No State, by virtue of its taxing power, can say to a debtor, 'You need not pay to your creditor all of what you have promised to him. You may satisfy your duty to him by retaining a part for yourself, or for some munici pality, or for the State treasury.' Much less can a city, 'We will tax our debt to you, and in virtue of the tax withhold a part for our own use.'' Strong, J., in Murray v. Charleston, supra.

Further as to impairing the obligation, see McGahey v. Virginia, 135 U. S. 662, reviewing the recent Virginia coupon cases, touching taxes, Hartman v. Greenhow, 102 U. S. 672; Antoni v. Greenhow, 107 U. S. 769; Virginia Coupon Cases, 114 U. S. 269; Barry v. Edmunds, 116 U. S. 550; Chaffin v. Taylor, Id. 567; Royall v. Virginia, Id. 572; Sands v. Edmunds, Id. 585; Royall v. Virginia, 121 U. S. 102; In re Ayers, 123 U. S. 443.