shal of the United States, cannot at the same time, hold the office Money. of commercial agent of France. 6 Op. 409.

As to the object, see the Federalist (No. 84; 1 Tuck. Black) Com. App. 295-296; Rawle on the Const. ch. 10, p. 120; Story's Const. § 135. An amendment was proposed in 1803, extending the prohibition to all private citizens. But it has never yet been ratified. Story's Const. § 1352.

unqualified

upon the

SEC. X. [1.] No State shall enter into any treaty, what are the alliance, or confederation; grant letters of marque and inhibitions reprisal; coin money; emit bills of credit; make any state? thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post fucto law, or law impairing the obligation of contracts, or grant any title of nobility.

denied to

17S.

150.

153.

152. REMARK.-It will be observed that to Congress is either Which of given or denied all the powers herein inhibited to the States ex- these powers cept "to make anything but gold and silver coin a tender," "emit are given or bills of credit," or "pass any law impairing the obligation of con- the United tracts." Thus to the President, by and with the advice of the States? Senate, is given the right to enter into treaties, alliances, or confederations. To Congress is given the right to coin money and grant 97, 98. letters of marque and reprisal; and from Congress is denied the 99, 178. power to create a title of nobility or pass ex post jacto laws. About the power of Congress to emit bills of credit, make tenders in payment of debts, or to pass laws impairing the obligation of contracts, the Constitution is silent. Neither of these powers is reserved to the States under the tenth amendment; for they are expressly prohibited. Those who deny them to Congress do so upon the ground, that because they are denied to the States and not granted to Congress, they do not exist in either government. But on the other hand, it is answered, that the right to borrow money on the credit of the United States carries the right to emit bills of credit and to 78, 82. make them lawful tenders; and, as ex post facto laws relate to 143, 156. crimes, the power to pass bankrupt laws carries along the power to impair the obligation of contracts by the Federal Government. 94-96. The whole ground is narrow; and hence we have to be controlled by the precedents of the past and what is necessary and proper. None deny the concurrent power of Congress to make gold and silver coin a tender in payment of debts. But the argument is that it can make nothing else a lawful tender.

269.

powers de

153. TO ENTER INTO ANY TREATY. &C., TO "COIN MONEY."- Why are These powers being national cannot exist in the States. Federal- national ist, No. 44; Rawle's Const. ch. 10, p. 136. They belonged to the Confederation, ante, p. 11, Art. 6. The same remark is true as to letters 178, 195. of marque and reprisal and coining money. Story's Const. §

1354-1357.

nied?

154. EMIT BILLS OF CREDIT.-To constitute a bill of credit, Define a bill within the Constitution, it must be issued by a State, involve the of credit!

400.

88.

Where does

ders reside?

faith of the State, and be designed to circulate as money, on the credit of the State, in the ordinary uses of business. Briscoe v. Bank of Kentucky, 11 Pet. 257, 311; Woodruff v. Trapnall. 10 How. 204. As to what are such bills of credit, see Craig v. Missouri, 4 Pet. 410, 434-448; same case, 8 Pet. 40; Woodruff v. Trapnall, 10 How. 205; McFarland v. The Bank of Arkansas, 4 Ark. 410; Darrington v. State Bank of Alabama, 13 How. 12; Curran v. Arkansas, 15 How. 317-18. The loan certificates of Missouri were bills of credit, and formed no valid consideration for a contract. Mankster v. The State, 1 Mo. 321; Lopez v. The State, 1 Mo. 451; Craig v. Missouri, 4 Pet. 410, 435. And see State of Indiana v. Warm, 6 Hill, 33; Delafield v. State of Illinois, 26 Wend., 192; Sturges v. Crowinshield, 4 Wheat. 204-205; Madison's Letter to C. J. Ingersol, 2d Feb. 1811. Story's Const. § 1358-–1373.

Bills of credit in the colonies were understood to apply to all paper money, whether funds were provided for their repayment or not. (See 2 Hutch. Hist. 208, 381.) Story's Const. § 1368. This author and the cases cited exhaust the whole learning upon the subject.

"Emit bills of credit," was omitted in the Constitution of the Confederate States. The result was that many of the States issued large amounts of bills intended to circulate as money. Paschal's Annotated Digest, p. 91, Arts. 806-811.

155. "MAKE ANY THING BUT GOLD AND SILVER COIN A TENDER the power as IN PAYMENT OF DEBTS."-The things in this article, not also proto legal ten; hibited to Congress, are allowed to be exercised by it, if the power come within the purview of either of the express or implied powers granted. Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 418, 423, 442.

269.

"The interpretation which I give to this clause is, that the United States possess power to make any thing besides gold and silver a legal tender. * * They have a right to make bank paper a legal tender. Much more then, have they the power of causing it to be received by themselves in payment of taxes." (4 Elliot's Debates, 367, 368; Mr. Alston of South Carolina.) Metropolitan Bank v. Van Dyck, 27 N. Y. R. 418; The Pennsylvania Cases, 52 Penn. St. R. (2 Smith) 1-100.

There is no express delegation of power to Congress to legislate on the subject of legal tenders, neither is there any prohibition in the Constitution, upon Congress forbidding such legislation, or declaring what shall or shall not make a legal tender; the omission was not accidental. Metropolitan Bank v. Van Dyck, 27 N. Y.

422.

It was the opinion of Mr. Madison, that Congress would have the power to declare bills or notes issued on the credit of the United States, a legal tender, unless prohibited by the Constitution. Metropolitan Bank v. Van Dyck, 27 N. Y. 419, 420, 422, 423, 426.

The first legal tender act was in favor of foreign coin. (Act 1st July, 1793.) Metropolitan Bank v. Van Dyck, 27 N. Y. 424, where are cited all the acts on the subject.

A contract dated 16th December, 1851, payable "in gold or silver

coin, lawful money of the United States," may be paid in United States legal tender notes, as lawful money of the United States. Rodes v. Bronson, 34 N. Y. R. 649. When the contract matured, it was payable in the only lawful money of the country. The power 88, 97-99. of Congress to declare treasury notes legal tenders for debts contracted previously to its passage, as well as those contracted subsequently, has been affirmed by this court. (Metropolitan Bank v. Van Dyck, 34 N. Y. R. 654.) Rodes v. Bronson, 34 N. Y.

654.

to change

A law of Congress to change the currency in which a contract Does a law may be discharged, does not impair the obligation of the contract. of Congress (Faw v. Marsteller, 2 Cr. 20; Dowmans v. Dowmans, 1 Wash. the currenty Virg. 26; Pong v. Lindsay, Dyer, 82; Barrington v. Potter, Dyer, impair the 81 B. fol. 67; United States v. Robertson, 6 Pet. 644: Conkey v. contracts? Hart. 4 Kern. 22; Mason v. Haile, 12 Wh. 370.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 455-8.

The above authorities also settle, that if a contract be made payable in a particular currency, and that currency ceases to exist before it is due, it must be discharged in the lawful currency at the date of maturity. See, particularly, Faw v. Marsteller, 2 Cr. 20, and Metropolitan Bank v. Van Dyck, 27 N. Y. Rep.

A law will not be held to be unconstitutional, unless it is clearly When will a

and plainly so. (Morris v. The People, 3 Den. 381; Ex parte law be held McCollom, 1 Cow. 561; Fletcher v. Peck, Cr. 87; Ogden v. San- to be uncon

ders, 12 Wh. 29; Adams v. Howe, 14 Mass. 345.) Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 460.

stitutional?

ex post f

t facto law?

156. PASS ANY BILL OF ATTAINDER OR EX POST FACTO LAW." Define ea -These terms relate to criminal law only; but as the words " post facto law, or law impairing the obligation of contracts," are only separated by a comma, many of the judges treat the words in 142-148. this connection as synonymous; and thus seem to make ex post jacto apply to contracts.

The critical reader is referred to the phrase in Burrill's law dic tionary, for the civil law origin of the term, wherein will be found its exact application. Que ab initio inutilis fuit institutio, ex post facto non convalescere non potest. Translated: An institution or

act which was of no effect at the beginning (when made or done), cannot acquire force or validity from after matter. Nunquam crescit ex post fact, præteriti delicti æstimatio. The estimate of the character of a past offense is never enhanced by after matter. See 1 Kent's Com. 409. Here follows an instance where it is used in reference to contracts.

Ex post facto, literally construed, operating upon a previous fact, yet the restricted sense stated, is the one in which it has always been held. It was the sense in which it was understood at the time the Constitution was adopted, both in this country and in England. (1 Blackstone's Com. 46; Calder v. Bull, 3 Dallas, 390.) Locke v. New Orleans, 4 Wallace, 173, 174.

157. THE OBLIGATION OF THE CONTRACT.-The laws which What laws exist at the time and place of the making of the contract, enter enter into into and form a part of it; and they embrace alike those which tion of the affect its validity, construction, discharge and enforcement. contract?

the obliga

155-159.

160-161.

How are

155.

(Green v. Biddle, 8 Wheat. 92; Bronson v. Kinzie. 1 How. 319; McCracken v. Hayward, 2 How. 612; People v. Bond. 10 California, 570; Ogden v. Sanders, 12 Wheat. 231.) Von Hoffman v. City of Quincy, Wallace. 550. (This principle has been denied. Farnsworth v. Vance, 2 Coldwell (Tenn.) Rep. 111.)

As, if the acts so change the remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests. (Green v. Biddle, 8 Wheat. 92.) Von Hoffman v. City of Quincy, 4 Wallace, 551. Or the Illinois two-thirds twelve months stay law. (1 Howard, 297.) Id. Or the State bankrupt insolvent laws, as to anterior contracts. Sturges v. Crowinshield, 4 Wheat. 122.) Id. But not as to subsequent contracts Ogden v. Sanders, 1 Wheat. 213.) Id.

The ideas of validity and remedy are inseparable, and both are the validity parts of the obligation, which is guarantied by the Constitution and remedy connected against invasion. The obligation of the contract is the law which binds the parties to perform their agreement." (Sturges v. Crowninshield, 12 Wheat. 257.) Von Hoffnan v. City of Quincy, 4 Wallace, 552; Story v. Furnam, 25 N. Y. (11 Smith). 223. Where the State incorporated a bank, with no other stockholder than the State, which issued bills. for which all the bank assets were legally bound (and which provided that the issues were receivable for all public dues), laws which withdrew the funds from the bank, and appropriated them to various other purposes than paying the notes of the bank. impaired the obligation of the contract, and were unconstitutional. (Bronson v. Kinzie. 1 How. 311; McCracken v. Hayward, 2 How. 608.) Curran v. The State of Arkansas, 15 How. 310. The guaranty that the bills were receivable for all public dues, was a contract with the bill-holders; and to repeal the guaranty, impaired the contract as to bills then in circulation. Woodruff v. Trapnall, 10 How. 205; affirmed. What of the Hawthorn v. Caleff, 2 Wall. 23. A law repealing a bank charter. repeal of does not impair the obligation of a contract, because the property bank charters? bona fide heid, is still a fund for the creditors. (Muma v. The Potomac Co. 8 Pet. 281.) Curran v. Arkansas, 15 How. 310, 331; This seems not to be so, as to creditors, where the corporators are liable personally for the issues. Corning v. McCulloch, 1 Comst. 47, 49; Conant v. Van Schaick. 24 Barb. 87; Bronson v. Kinzie, 1 How. 311; Hawthorne v. Caleff, Id. 311. The legislature may repeal the guaranty that the bills shall be received for all public dues: but the repeal only operates upon future issues. the guaranty remaining as to those outstanding. Woodruff v. Trapnall, 10 How. 206.

157.

What is the

doctrine of bridges?

A bridge charter, which declared that no other bridge should be built within the designated limits, is a contract, within the meaning of the Constitution. Bridge Proprietors v. Hoboken Co. 1 Wall. 146-7. But a railroad bridge is not a bridge. within the meaning of a statute of New Jersey of 1790. Bridge Proprietors v. Hoboken Co. 1 Wall. 147. A railroad bridge does not necessarily impair the right of an ordinary toll-bridge. (Mohawk Bridge Co. v. Utica & S. R. R. Co. 6 Paige, 564; Thompson v.

New York & Harlem R. R. Co. 3 Sandf. 625; McRae v. Wilming- 400-402, ton Raleigh R. R. Co. 17 Conn. 56; Enfield Toll-bridge v. The Hartford & New Haven R. R. Co. 17 Coun. 56;) Bridge Proprietors v. Hoboken, 1 Wall. 150-1. As to what a ferry privilege is, see Conway v. Taylor, 1 Black. 603; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210. It may be granted by Kentucky without the concurrent assent of Ohio. Id. (Cites Trustees of Newport v. Taylor, 6 J. J. Marsh, 134)

160.

A contract is an agreement to do or not to do a particular Define a thing. (Sturges v. Crowinshield, 4 Wheat. 197; Green v. Biddle, contract? 8 Wheat. 92; Ogden v. Saunders, 12 Wheat. 256, 297, 302, 316, 335; Gordon v. Prince, 3 Wash. C. C. Rep. 319.) Story's Const. § 1376.

This provision has never been understood to embrace other con- To what tracts than those which respect property, or some object of value, contracts only does and confer rights which may be asserted in a court of justice. the inhibiDartmouth College v. Woodward, 4 Wh. 629. A private charter tion apply! is such a contract. Id. 518. So also an act incorporating a banking institution. Providence Bank v. Billings, 4 Pet. 514; Gordon v. Appeal Tax Court, 3 How. 133; Planter's Bank v. Sharp, 6 Id. 301; Curran v. Arkansas, 15 Id. 304. And a grant of land by the legislature of a State. Fletcher v. Peck. 6 Cr. 87; Terrett v. Taylor. 9 Id. 43. And so is a compact between two States. Green v. Biddle, 8 Wh. 1; Allen v. McKean, 1 Sumn. 276. And see 2 Pars. on Cont. 509. An appointment to a salaried office, however, is not a contract, within the meaning of the Constitution. Butler v. Pennsylvania, 10 How. 402; Commonwealth v. Mann, 5 W. & S. 418; Commonwealth v. Bacon, 6 S. & R. 322; Barker v. Pittsburgh, 4 Barr, 49; Jones v. Shaw, 15 Tex. 577. All contracts are subject to the right of eminent domain existing in the severai States; and the exercise of this power does not conflict with the Constitution. West River Bridge Co. v. Dix, 6 How. 507; Rundle v. Delaware & Raritan Canal Co., 14 Id. 80; The State v. De Lesdernier, 7 Tex. 99.

It is a compact between two or more persons. (Fletcher v. Peck, 6 Cranch, 136; s. c. 2 Pet. Cond. 321.) Story's Const. $ 1376.

A law of a State, issuing transferable swamp land-scrip, and exempting the land from taxation, for ten years or until reclaimed, constituted a contract, between the State and the holders of the land-scrip, issued under the act. McGee v. Mathis, 4 Wallace,

156.

160.

tion a

An act of incorporation is a contract between the State and the Is an act of stockholders. All courts, at this day, are estopped from question- incorporaing the doctrine. (Dartmouth College v. Woodward, 4 Wheat. 418.) contract? The Binghampton Bridge, 3 Wallace, 72.

Such contracts are construed liberally by the government. The Binghampton Bridge, 3 Wallace. 74. Nothing is to be taken by intendment agains the State. The Binghampton Bridge, 3 Wallace, 75; The Charles River Bridge, 11 Peters, 544; Jefferson Br. Bank v. Skelley, 1 Black. 446. But the State may grant franchises by reference to another statute on the same subject-matter.