while there is a legal obligation to perform a contract. And it is this legal obligation which gives such value to a contract, as to en

pensing with those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.

The case of Dartmouth College v. Woodward, affirming the inviolability of the charters of private eleemosynary corporations, has been repeatedly affirmed by the federal and State tribunals. Society, &c. v. New Haven, 8 Wheaton, 464; Trustees of Vincennes University v. Indiana, 14 How. 268; Norris v. Trustees of Abingdon Academy, 7 Gill & Johns. 7; Grammar School v. Burt, 11 Vermont, 632; Brown v. Hummell, 6 Barr, 86; State v. Heywood, 3 Rich. 389. The supreme court of Ohio, in a recent elaborate decision, which has been overruled by the supreme court of the United States, has attempted the limitation of the doctrine of this case, as it has usually been understood. Toledo Bank v. Bond, 1 Ohio State R. 670. The charters of private civil corporations, as those of banks, turnpike and railroad companies, are equally protected by the United States constitution. Planters' Bank v. Sharp, 6 How. 301; People ". Manhattan Co. 9 Wendell, 351; Boston & Lowell R. R. Corp. v. Salem & Lowell R. R. Corp. 2 Gray, 1.

Grants of franchises to a corporation in which the public have an interest-as the right to open roads and lay bridges - -are to be construed strictly, and nothing passes beyond what the natural force of the words used requires. Thus, in a celebrated case, it was held that where the charter, authorizing a corporation to build a bridge over a river, granted no exclusive rights above and below the bridge, no such exclusive right passed, and another corporation might be authorized to build a bridge so near as to reduce the tolls of the first bridge to a very small value. Charles River Bridge v. Warren Bridge, 11 Peters, 420. This case has been often affirmed. West River Bridge v. Dix, 6 How. 507; Richmond R. R. Co. v. Louisiana R. R. Co. 13 id. 81; Mohawk Bridge v. Utica & Schenectady R. R. Co. 6 Paige, 547; White River Turnpike Co. v. Vt. Central R. R. Co 21 Vt. 591; Tuckahoe Canal Co. v. Tuckahoe R. R. Co. 11 Leigh, 42; Pierce on American Railroad Law, chap. iii. The franchise of a corporation, even where it is exclusive, may be taken for public uses, where compensation is made. West River Bridge Co. v. Dix, 6 How. 507; s. c. 16 Vt. 446; White River Turnpike Co. v. Vt. Central R. R. Co. 21 id. 591; Enfield Toll Bridge Co. v. Hartford & N. H. R. R. Co. 17 Conn. 40, 454; Boston Water Power Co. v. Boston & W. R. R. Co. 23 Pick. 360; Richmond, &c. R. R. Co. v. Louisa. R. R. Co. 13 How. 71; Boston & Lowell R. R. Corp. v. Salem & Lowell R. R. Co. 2 Gray, 1, 35; Crosby v. Hanover, 36 N. H. 404. The doctrine that the legislature of a State may, for a valuable consideration, grant to an individual or a corporation exemption from taxation of the property thereof, so that the imposition of the tax by a subsequent legislature would be in conflict with this clause of the United States constitution, has been severely contested in Ohio. Debolt v. Ohio Life Ins. and Trust Co. 1 Ohio State R. 563; Mechanics and Traders' Bank ». Debolt, id. 591; Knoop v. Piqua Bank, id. 603; Toledo Bank v. Bond, id. 622. It has also been questioned in its full extent in New Hampshire. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69; Brewster v. Hough, 10 id. 138; Backus v. Lebanon, 11 id. 24, and denied in Pennsylvania. Mott v. Penn. R. R. Co. 30 Penn. State, 9. But the repeated decisions of the supreme court of the United States have now established it beyond all controversy. New Jersey v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 id. 369. Dodge v. Woolsey, 18 id. 231. Jefferson Branch v. Skelly, 1 Black, 436; Franklin Branch Bank v. State of Ohio, id. 474. But where the payment of a certain per cent on the dividends of a corporation, prescribed in its charter, appears to be intended only as a temporary rule of taxation, this provision of the constitution does not interfere with the imposition of a higher rate. Eastern Bank v. Commonwealth, 10 Barr (Penn.), 442; Debolt v. Ohio Life Insurance and Trust Co. 1 Ohio State, 563; s. c. 16 How. 416. But unless there is a valuable consideration given for this exemption from taxation, it may be repealed, as one of the essential elements of a contract is wanting. Christ Church v. Philadelphia, 24 How. 300; Rouse . Washington University, 7 Am. Law Reg. (N. s.) 390. See also a report to the Rhode Island senate, by Hon. E. R. Potter, 1 Am. Law Reg. (N. s.) 718. A law allowing all persons manufacturing salt in Michigan to hold the property exempt from taxation, and receive a certain bounty per bushel on all salt manufactured, does not constitute a contract between persons erecting salt-works under it and the State, but is a mere bounty, and may be repealed at will. General encouragements held out to all persons indiscriminately to engage in a trade or manufacture, in whatever shape, are always under legislative control. Salt Co. v. East Saginaw, 13 Wall. 373.

Laws affecting the remedy only do not impair the obligation of a contract. Me

title it to be considered as property. But this value would be greatly diminished, if it were left in the power of legislation to impair the obligation upon which it depends; and hence the importance of a constitutional guaranty against impairing the obligation of contracts. The ordinance of 1787 contained this declaration : "And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with, or affect, private contracts or engagements, bona fide and without fraud, previously formed." This was the first time that such a provision ever formed part of a declaration of rights. But so universal is the conviction of its vast importance, that it has been inserted in every American constitution since formed. In the federal constitution, the declaration is, that "no State shall pass any law impairing the obligation of contracts; in our State constitution, that "the general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors in instruments and proceedings, arising out of their want of conformity with the laws of this State." So far, then, as respects State legislation, we are doubly protected. Why Congress was not placed under a like prohibition, I do not understand. It will be observed, that the ordinance expressly limits the prohibition to prior contracts; and this is the construction put upon the language of the constitution. Indeed, if the law be made before the contract, it forms a part of its obligation, and cannot be said to impair it. The design. was to protect existing contracts from retroactive legislation; and the effect is, that when a valid contract is once made, no future State legislation can impair its validity. The provision has been frequently the subject of judicial construction, and the following points have been decided: 1. A grant of land, which is an exechanics', &c. Bank Appeal, 31 Conn. 63; Cummings v. Maxwell, 45 Maine, 190; Rich v. Flanders, 393 N. H. 304; New Orleans v. Pontz, 14 La. An. 853; Hayward v. Judd, 4 Minn. 483. A statute does not necessarily impair the obligation of a contract because it may enhance the difficulty of performance to one party, or diminishes the value of performance to the other, provided it leaves the obligation of performance in full force. So a statute passed after a sale for taxes requiring the holder of tax certificates to give notice to the occupant of the land, if there is one, before he takes his deed, is not invalid. Curtis v. Whitney, 12 Wall. 68. The action of forcible entry and detainer does not enter into a contract for a lease so that a repeal of it, or permission to make a new defence, impairs the obligation of the contract. Dunham v. Stifle, 8 Wall. 595. An increase in the amount exempted from execution does not impair the obligation of the contract. Hardeman v. Downer, 39 Ga. 425; Hill v. Kessler, 63 N. C. 437; Stephenson ». Osborne, 41 Miss. 119. But it does when a judg ment lien has been obtained on land, securing the debt under the law existing at the time it was obtained, but which security the new law would destroy. Gunn v. Barry, 15 Wall. 610. Stay laws, preventing the collection of debts, are unconstitutional. Jacobs v. Smallwood, 63 N. C. 112; Hudspeth v. Davis, 41 Ala. 389.

Even though the contract expressly stipulates for a remedy, an act abolishing that remedy will deprive the party of it, without being unconstitutional on that account. Conkey r. Hart, 14 N. Y. 22.

See farther as to the rule in Dartmouth College v. Woodward, in note p. 231.

cuted contract, is within the prohibition, and it makes no difference whether a State or an individual made the grant. 2. A charter creating a private corporation is a contract within the prohibition; and so is a compact between two States; but a charter creating a public corporation is not. 3. The extent to which the contract is affected is of no consequence, for if any of its terms be varied, its obligation is impaired. 4. The prohibition supposes the parties to the contract to belong to the State which passes the law affecting it, otherwise the law cannot be said to impair it. 5. With these qualifications, it may be stated generally, that statutes of usury which affect the validity of contracts; statutes of fraud, which affect the evidence of contracts; and statutes of limitation and bankruptcy, which affect the remedy of contracts, are all within the meaning of the prohibition. (a)

§ 82. Right of Petition and Instruction. (b) The right of suffrage, through which the people indicate their wishes in the choice of men to make their laws, has already been considered. But when the proper men have been selected, their constituents may desire from time to time to make known their wishes as to measures. Accordingly, the first amendment of the federal constitution declares that "Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Our State constitution goes still further. It declares that "the people have a right to assemble together in a peaceable manner, to consult for their common good; to instruct their representatives; and to petition the general assembly for the redress of grievances." The reason for thus solemnly asserting principles so self-evident probably was, that in England, where the government is less democratic, several restrictions were laid upon the exercise of these rights. The provision contains three points for consideration. 1. The right of assembling for consultation. The only qualification is, that the assembling be peaceable, and not riotous. 2. The right of petitioning for the redress of grievances. Correlative to this right of the people to petition, is the obligation of the legislature to receive and consider their petitions. If, however, a petition be disrespectful in its language, or demand something manifestly frivolous or wrong, a legislature does not hesitate to reject it as soon as presented. 3. The right of instructing representatives. There was no occasion to assert this in the federal constitution, and it is therefore omitted. Was it

(a) See 2 Parsons on Contracts, ch. xi. Police regulations, incidentally affecting contracts and the rights acquired under them, are not within the constitutional inhi bition which forbids the States passing laws impairing the obligation of contracts or that which gives to Congress the exclusive power to regulate commerce. Thorpe v. Rutland & Burlington R. R. Co. 1 Williams (Vt.), 140; B. C. & M. R. R. Co. v. The State, 32 N. H. 215; Galena & Chicago Union R. R. Co. v. Loomis, 13 Ill. 548; Hirn v. State of Ohio, 1 Ohio State, 15: Calder v. Kurby, 5 Gray, 596; State v. Holmes, 38 N. H. 225; Cooley v. Board of Wardens of Philadelphia, 12 How. 299. Laws made prior to the formation of a contract do not impair its obligation. Davis v. Bronson, 6 Clarke (Iowa), 410. Railroad Co. 7. McClure, 10 Wall. 511.

(b) 1 Black. Com. 143; 2 Story, Const. § 1893.

necessary to assert it in the State constitution? Would the omission of it have released the representative from his corresponding obligation to obey instructions? In some of the States these are important questions. And it is argued with some plausibility, that the omission by the people to reserve the right in their constitution operates as a relinquishment of it. The people, it is said, by their constitution, have given their representatives a set of general and permanent instructions. They might unquestionably, at the same time, have stipulated for the right of giving future instructions for particular emergencies; but not having done so, they have agreed that their representatives shall be bound only by the instructions in the constitution. And this reasoning derives countenance from the fact, that several of the constitutions, like that of Ohio, take care to reserve to the people the right of instruction. On the other hand, it is contended that the right of instruction flows so directly from the relation of constituent and representative, that it requires no assertion. But as the question cannot arise here, I shall not attempt to settle it. The people of Ohio have reserved the right to instruct their representatives, and of course the representatives are bound to obey. But whether it is expedient frequently to exercise the right, and thus far convert the representative into an automaton, may well admit of serious doubt. If we take into view the abundant safeguards against the abuse of discretion by the representatives; the evils of party excitement; the difficulty of ascertaining the aggregate will of the constituents, in any authentic shape; and the superior advantage which the representative has to inform his judgment from being on the spot, we shall probably arrive at the conclusion, that the right of instruction should only be exercised in extreme cases. This question has lately assumed a new aspect. State legislatures have undertaken to instruct federal senators, because they elect them. Have they this right? They are not the people, and do not therefore come within the letter of the declaration. Nor is this right derived by implication from their legislative functions, for it has nothing to do with legislation. It would seem, therefore, that their instructions are not obligatory upon federal senators. The people of the States may instruct them, but not the State legislatures.

§ 83. Security against Retroactive Laws. (a) There can be but

(a) See Mad. Pap. 1400, 1444, 1450; Gilmore v. Shuter, 2 Levinz, 227; Couch v. Jefferies, Burrow, 2460; Call v. Hagger, 8 Mass. Rep. 423; Dash v. Van Kleeck, 7 Johnson, 477; Calder ». Buell, 3 Dallas, 386; Fletcher v. Peck, 6 Cranch, 87; M'Cormick v. Alexander, 2 Ohio Rep. 65; Barton v. Morris, 15 id. 408; Butler v. City of Toledo, 5 Ohio State, 225; Ogden v. Blackledge, 2 Cranch, 194; Society, &c. v. Wheeler, 2 Gallison, 105; Satterlee v. Matthewson, 2 Peters, 380. In Gilmore v. Shuter, 2 Lev. 227, the question was, whether the statute of frauds should be construed to act upon patrol contracts entered into before its passage. And even then, in the reign of Charles the Second, the judges held that to give the statute such a construction would make it repugnant to common justice. In Couch v. Jefferies, 4 Burr. 2460, Lord Mansfield held the same doctrine. He said it could never be the true construction of the act then in question to include prior cases. In Call v. Hagger, 8 Mass. 423, where a statute of limitations did not expressly extend to prior transactions, the

one opinion as to the injustice of retroactive laws. It is a necessary maxim, that ignorance of the law forms no excuse for violating

court refused to give it that extent by construction. In Calder v. Bull, 3 Dallas, 386, the facts were briefly these: The probate court of Hartford, upon hearing, had set aside a will, the effect of which decree was to let in the heirs. By the law of Connecticut, as it then stood, no appeal could be had from this decree after eighteen months. But when this limitation had run out, the legislature passed a law setting aside the former decree, and authorizing a rehearing by the same court of probate, and an appeal therefrom; the result of which was that the will was finally established. The heirs, who by this means were deprived of their inheritance, brought the question before the supreme court, on the ground that the law in question was an er post facto law. The court decided that it was not an er post facto law, in the meaning of the constitution, and this is the only point actually decided, because it was the only question before the court. But occasion was taken to give a construction to this clause of the constitution which has ever since been acquiesced in. They said the prohibition related only to laws for the punishment of crimes; and its meaning was this: "That the legislatures of the several States shall not pass laws, after a fact done by a subject or citizen, which shall have relation to such fact, and shall punish him for having done it. And they considered that the following would be ex post facto laws within the words and intent of the prohibition: 1 Every law that makes an action done before the passing of the law, and which was innocent when done, criminal. 2. Every law that aggravates a crime, or the punishment thereof, after the crime is committed. 3. Every law that alters the legal rules of evidence, and receives less, or other testimony, than was required at the time of the commission of the offence, in order to conviction. These three classes may be reduced to one; namely, all laws which make an act punishable in a manner in which it was not punishable when committed. But the court did not consider any law ex post facto, within the prohibition which mollified the rigor of the criminal law. They said there was a difference between making an unlawful act lawful, and making an innocent act criminal. But the character of the punishment cannot be changed even though the new punishment is of a less severe kind. The law can only stand when the new punishment is one of the same kind as that formerly imposed, but less in degree. Shepherd v. The People, 25 N. Y. 406. I have been thus particular in giving an account of this case, because it has often been cited as an authority on the subject of retroactive laws in general, as well as of legislation for individual cases. In M'Cormick v. Alexander, 2 Ohio, 65, the facts were these: Evans had obtained a judgment and taken out execution within the time required by the law as it then stood, in order to secure his lien, in preference to that of one M'Cormick, who had obtained a subsequent judgment. Had the law, therefore, remained unaltered, the right of Evans to the property levied upon would have been completely vested, as against M'Cormick. But in the mean time, a law was passed, providing," that no judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year, next after the rendition of such judgment, shall operate as a lien upon the estate of any debtor, to the prejudice of any other bonâ fide judgment creditor." The effect of this law was to set the right of Evans aside, and prefer that of M'Cormick, for the execution of Evans had not been levied within a year from the judgment, and that of M'Cormick had. It was no question of construction, for the statute was expressly made retroactive, including prior as well as subsequent judgments. And the court upheld the law as constitutional, although very unjust and unequal in its operation, and interfering with vested rights. They said, the right vested in Evans was not one acquired by contract or agreement; if it had been, the legislature could not have deprived him of it, because the constitution protected him. But the lien of a judgment was given him purely by legislative enactment, and the same power which gave, had taken away. In so doing, they had not exceeded the authority given them under the constitution. Arguments drawn from the injustice of the act must be addressed to the legislature and not to the court. In Society, &c. v. Wheeler, 2 Gallison, 105, Judge Story is often quoted as deciding against retroactive laws in general. But the truth is, he was then construing the constitution of New Hampshire, which contains an express prohibition of retrospective laws generally, in these words: "Retrospective laws are highly injurious, oppressive and unjest. No such laws therefore should be made, either for the decision of civil causes, or the punishment of offences." All therefore that Judge Story decided was, “that every statute, which takes away, or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed, must be deemed retrospective within this prohibition."