law of Ohio declared that an occupying claimant of land should not be turned out of possession till he should be paid for lasting and valuable improvements, and directed the court in a suit at law to appoint commissioners to value the improvements, it was held that this came within the provisions of the seventh amendment, and that the law was unconstitutional and void. *

It has been held, too, by the Supreme Court of the United States, that this clause embraces all suits not of equity or admiralty jurisdiction, and that it applies to the proceedings prac ticed in Louisiana on the trial of causes by a jury, though peculiar and not according to the course of the common law.†

Indeed, as I have had occasion to notice in speaking of the operation of the analogous clause under the State Constitutions, the provision has been generally very liberally construed. So, it has been intimated that a court of equity cannot order the complainant and his sureties on an injunction bond, to pay the damages sustained by reason of the injunction, on the ground that an action on a bond is in its nature a suit at common law. So, again, it has been decided that to subject the right of trial by jury to any condition, is incompatible with the nature of the constitutional guaranty. Consequently, where a law designed to prevent the sale of intoxicating liquors, required the party accused to give security for the 'payment of the penalty and costs awarded by the act for its

* Bank of Hamilton v. Dudley's Lessee, 2 Peters, 493. This case is also of much inter. est, on the subject of repeal and vested rights. In 1795 the Territorial Government of Ohio created an Orphan's Court, and authorized the administrator of a decedent to sell the real estate, when there was not a sufficient personal estate to pay the debt. In May, 1804, an administrator obtained an order to sell under this statute. In June, 1805, the act of 1795 was repealed. In August, 1805, an order was entered enlarging the adminis trator's power to sell, and entered nunc pro tunc, as of May, and a sale took place; but it was held bad.' It was urged that the interest of the administrators in the real estate was a vested interest, and that the repeal of the law could not divest it. But the court said that the repeal divested no vested estate, that it was only "the exercise of a legislative power such as every Legislature possesses. The mode of subjecting the property of a debtor

to the demands of a creditor must always de pend upon the wisdom of the Legislature."P. 523.

Parsons v. Bedford, 3 Peters, 447. In the State of Louisiana, the principles of the common law are not recognized; neither do the principles of the civil law of Rome furnish the basis of their jurisprudence. They have a system peculiar to themselves, adopted by their statutes, which embodies much of the civil law, some of the principles of the common law, and, in a few instances, the statutory provisions of other States. This system may be called the civil law of Louisiana, and is peculiar to that State. Mr. J. M'Lean's dissenting opinion in Parsons v. Bedford, 3 Peters, 450.

Merryfield v. Jones, 2 Curtis, p. 306. See on this point, Hiriart v. Ballon, 9 Peters, 156; Gwin v. Breedlove, 2 How. 29; Gwin v Barton, 6 Howard, 7; Bein v. Heath, 12 Howard, 168.

violation, as a condition of having a jury trial, it has been decided by Mr. Justice Curtis, on the Rhode Island Circuit, that this provision conflicted with the Constitution of that State, which declares that the right of trial by jury shall be inviolate, and rendered the whole act unconstitutional and void.*

The general rule of the courts of the United States is, that on the trial of causes the court may give their opinion on the evidence to the jury, being careful to distinguish between matter of law and matters of fact. In regard to the former, the opinion of the court is conclusive; but a mere opinion on the facts has only such influence as the jury may think it enti tled to. + But, as has been heretofore observed, there is a diversity of practice in the different States on this subject; and it has been intimated that in those States where the rule is to confine the charge strictly to questions of law, it will be well for the judges of the Federal tribunals to conform to it, for the general reason that it is desirable that the practice in the courts of the United States should resemble as near as practicable that of the States in which they are sitting.

In criminal cases, it has been earnestly insisted that the jury are the judges of the law, as well as of the fact, and that the opinion of the court on questions of law, how conclusive soever in civil causes, has no binding force on the jury in criminal cases. But this doctrine has been denied on very high authority; and in the first circuit of the United States, as well as in the States of New York, Indiana, New Hampshire, and Massachusetts, it seems settled that juries in criminal trials have not the right to decide any question of law; and that if they render a general verdict, their duty and their oath require them to apply to the facts, as they may find them, the law given to them by the court.

Greene v. Briggs, 1 Curtis, 311. M'Lanahan v. Universal Ins. Co. 1 Peters, 182; Games v. Stiles, 14 Peters, 322.

Ante, p. 498.

Mitchell v. Harmony, 13 Howard, 131. See, in this case, in Mr. J. Daniel's dissenting opinion, an ingenious and elaborate defence of the practice, which, he says, is that of most of the Southern States, of confining the charge to matters of law,

United States v. Battiste, 2 Sumner, 240;

United States v. Morris, 1 Curtis, 60; People v. Price, 1 Barb. S. C. R. 566; Townsend v. The State, 2 Blackf. 152; Pierce v. The State, 13 N. H. R. 536; Commonwealth v. Porter, 10 Met. 263; and, in Ohio, see Montgomery v. The State, 11 Ohio, 427. In England, see Parmiter v. Coupland, 6 M. & W. 105; Levi v. Milne, 4 Bing. 195.

The trial by jury was at one time used in New York as a mode of collecting taxes. The eighty-third letter of the Federalist says it is

Excessive Bail and Cruel Punishments. Amendments, art. viii.—It has been decided in regard to this, as the other amendments, that the clause only operates as a limitation on the General Government, and does not apply to the States of the Union. *

The Obligation of Contracts.-We have thus far been occupied with considering the effect of those clauses in the Constitution of the United States which act as restrictions on legislative power and as guaranties of private rights. Of these clauses, however, we have still to examine that which in its practical operation has as yet proved far the most important, viz.: The provision in the tenth section of the first article, which declares that no State shall pass any law impairing the obligation of contracts.†

At the outset of the discussion we may remark, that some of the States have imposed a similar restriction upon themselves; while in regard to the Federal power, there is no express provision protecting the sanctity of contracts. Where it was asserted that an act of Congress granting an exclusive privilege in the shape of a patent was void on the ground that the patentee had had an exclusive privilege granted him by the State, and that on the expiration of the State grant the right to his invention became by an implied contract vested in the

now, "in most cases," out of use for this purpose.

* Barker v. The People, 3 Cowen, 686; James v. Commonwealth, 12 Serg. & R. 220; Barron v. Mayor of Baltimore, 7 Peters R.

243.

Ante, p. 545.

The importance of this clause certainly does not appear to have been realized at an early period in our history. The subject of the Obligation of Contracts is very summarily disposed of, in connection with bills of attainder and ex post facto laws, by the Federalist, in the 44th letter. Laws in violation of private contracts are referred to in the 7th letter, and are spoken of somewhat cursorily as among the causes which might lead to wars among the States. Mr. Rawle's work on the Constitution, published in 1825, chap. x, p. 131, contains only a few paragraphs in regard to the matter.

yer, and learned in the civil law, was the author of the phrase."

Louisiana.-No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility and for adequate compensation previously made. Cons. tit. vi, § 105.

Tennessee. No retrospective law or law impairing the obligation of contracts shall be made. Cons, art. i, § 20.

Missouri.-No ex post facto law, nor law impairing the obligation of contracts or retrospective in its operation, can be passed. Cons. art. xi, § 17.

The Constitution of New Jersey, art. iv, sec. 7, contains a peculiar and very important provision, to which I shall again call attention when I come to speak of vested rights. "The Legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made." Art. 4, sec. vii, §3.

people of the State, the Circuit Court in Pennsylvania denied the proposition, saying, "If, even, the premises were true, still there is nothing in the Constitution of the United States which forbids Congress to pass laws violating the obligation of contracts, although such a power is denied to the States individually."

The consideration of this important clause seems naturally to divide itself into two heads:

First. What are the contracts to which the Constitution refers?

Second. What acts of State legislation are considered to impair their obligation?

I shall examine somewhat in detail the leading cases on the subject, and then endeavor to state the general result of the decisions, remarking, however, before the discussion is commenced, that it has been decided by the Supreme Court, under a Virginia act of 1788, that the present Constitution did not commence its operation until the first Wednesday of March 1789, and that the provision as to the obligation of contracts does not extend to a State law enacted before that time and operating upon rights of property vested before that period. + What is a Contract within the meaning of the Constitu tion? (a) The Supreme Court has said that the contracts Owings v. Speed, 5 Wheat. 420.

*Evans v. Eaton, Peters C. C. U. S. R. 337. See Gatlin v. Walton, 1 Wins. (N. C.) 333.

(a) What is a Contract within this Provision ?—Marriage. According to the weight of authority, marriage is not, as a contract, protected by the constitutional provision. Adams v. Palmer, 51 Me. 480; Carson v. Carson, 40 Miss. 349; Cronise v. Cronise, 54 Penn. St. 255. The inchoate rights of property flowing from marriage are not protected, it seems; thus curtesy may be taken away as to land not vested in the wife. Thurber v. Townsend, 22 N. Y. 517; and see In re Lawrence, 1 Redf. (N. Y.) 310. In some States it is held that dower may be taken away before, but not after the death of the husband. Noel v. Erving, 9 Ind. 37; Magee v. Young, 40 Miss. 164; Barbour v. Barbour, 46 Me. 9; Strong v. Clem, 12 Ind. 37; Lucas v. Sawyer, 17 Iowa, 517. Doubtless a statute abolishing dower would apply to all future acquired lands. See Sutton v. Askew, 66 N. C. 172; Wesson v. Johnson, 66 N. C. 189. It seems that property brought by the wife may be subjected by law subsequent to the marriage to the husband's debts. Portis v. Parker, 22 Tex. 699. There is some confusion on this subject. As marriage is not a contract within this provision, it is very clear that its incidents are not protected by this provision. But it by no means follows that certain incidents of marriage, are not protected by other

designed to be protected by the tenth section of the first article are "contracts by which perfect rights-certain definite,

provisions. Those property rights flowing from marriage which have become vested in particular lands, are as truly property rights, and protected by the constitutional provisions respecting due process of law and the like, as though they were rights by inheritance. The mere capacity of the husband or wife to acquire property in the things of the other, may be taken away before it has applied itself to some particular thing, and has thus turned into a right over such thing; but after such change, and the vesting of the right, the Legislature cannot any more take it away by general laws abolishing curtesy or dower, etc., than by a particular statute applied to some designated husband and wife. See 2 Scribner on Dow. ch. i, §§ 13 to 20; Kelly v. Harrison, 2 Johns. Cas. 29; Lawrence v. Miller, 2 N. Y. 245, 250; Royston v. Royston, 21 Geo. 161; Moreau v. Detchmendy, 18 Mo. 522; Simar v. Canaday, 53 N. Y. 298.

Arrangements which are political in their nature, and which it is essential that the Government should have power to change, are not within the guaranty. No mere political capacities or rights, and no statutes, Constitutions, or customs by which such political capacities or rights are acquired or conferred, are contracts. Among these are municipal corporations. The charters of municipal corporations, whether in the form of general or special statutes, are not contracts within the constitutional guaranty. Over the municipal corporation, and over its public. property, the power of the Legislature is supreme. People v. Pinkney, 32 N. Y. 377; Erie v. Erie Canal Co. 59 Penn. St. 174; Philadelphia v. Fox, 64 Penn. St. 169; Borough of Dunmore's Appeal, 52 Penn. St. 374; Girard v. Philadelphia, 7 Wal. 1; State Bank v. Knoop, 16 How. U. S. 369, 380; Grogan v. San Francisco, 18 Cal. 590 ; Blanding v. Burr, 13 Cal. 343; People v. Hill, 7 Cal. 97; Darlington v. Mayor, 31 N. Y. 164; Savings Friend Soc. v. Philadelphia, 31 Penn. St. 175, 185; Philadelphia v. Field, 58 Penn. St. 320; Gray v. Brooklyn, 10 Abb. Pr. N. S. 186; 50 Barb. 365; Brewster v. Syracuse, 19 N. Y. 116; Sill v. Corning, 15 N. Y. 297; People v. Draper, 15 N. Y. 532; State v. R. R. Co. 12 Gill & Johns. 399; Baltimore v. Board of Police, 15 Md. 376; Police Commr's v. Louisville, 3 Bush, 597; Diamond v. Cain, 21 La. Ann. 309; State v. Leory, Id. 538. In some of these cases it has been said that a municipal corporation has a double character, the one public and the other private; that whatever pertained to the former was under the complete control of the Legislature, but that such a corporation might have private property or some other private rights. in reference to which its charter would be a contract, and which property or rights would be beyond the power of the Legislature. No court has, however, gone beyond such a general suggestion, nor attempted to define in what cases and for what purposes a municipal corporation could hold private property or be clothed with such private rights with such results; the discussion of the courts on the subject has rather been speculative and general. On the other hand, courts have denied the existence of any such dual nature in a municipal corporation, and have held that for all purposes and in respect to all property they are under the control of the Legislature-in other words, that a municipal corporation could have no pricate property or character. See especially for a full and positive statement of these views, Darlington v. Mayor &c. 31 N. Y. 164, 193, per Denio, J.

The Legislature may apportion municipal burdens in case of consolidation, etc. Layton v. New Orleans, 12 La. Ann. 515; People v. Powers, 25 Ill. 187. And may divert a fund which has been raised by taxation for one public purpose, to another