this operation when it has the full force of law. A law may determine the obligation of a contract on the happening of a contingency, because it is the law. But if it be not the law, it cannot have this effect; and when its existence or force as law is denied, they cannot either of them be proved by showing what are the qualities of a law. Law has been defined to be "a rule of civil conduct, prescribed by the supreme power in a state." In our system, the Legislature of a state is the supreme power in all cases in which its action is not restrained by the state constitution or the Constitution of the United States. Where it is so restrained, the state Legislature ceases to be the supreme power, and its acts are not law. It was, therefore, begging the question to say that, because contracts may be discharged by a law previously enacted, it was discharged in that case by the act of the Legislature set up for the purpose: for the question returned, Was that act LAW? Was it consistent with, or repug· nant to, the Constitution of the United States ?

It was readily admitted that the whole subject of contracts was under the control of society, and that all the power of society over them resides in the state legislatures, except in those special cases where restraint is imposed by the Federal Constitution. The extent of the restraint on the power to impair the obligation of contracts cannot, however, be ascertained by showing that the Legislature may prescribe the circumstances on which their original validity may be made to depend. If the legislative will were that certain agreements should be in writing; that they should be sealed, and attested by a given number of witnesses; that they should be recorded, or assume any prescribed form before they became obligatory, all these are regulations which

society may rightfully make; and they do not come within the restriction of the Constitution, because they do not impair the obligation of the contract. The obligation must exist before it can be impaired ; and a prohibition to impair it when made, does not imply an inability to prescribe those conditions which shall create its obligation. The statutes of frauds which have been enacted in the several states, and which are acknowledged to flow from the proper exercise of state sovereignty, prescribe regulations which must precede the obligation of the contract, and, consequently, cannot impair it. Acts of this description, therefore, are most clearly not within the prohibition. The acts against usury are of the same character they declare the contract to be void from the beginning, and deny that the instrument ever became a contract; they deny it all original obligation, and that it cannot, therefore, impair that which never came into existence. Statutes of limitation approach more nearly to the subject under consideration, but can never be identified with it: they defeat a contract once obligatory, but, as has been before observed, they relate only to the remedies furnished to enforce the contract, and their language is generally confined to the remedy; they do not purport to dispense with the performance of the contract, but proceed upon the presumption that a certain length of time, if unexplained by circumstances, affords reasonable evidence of its having been performed. In prescribing the proofs that shall be received in their courts, and the effect of those proofs, the states exercise their acknowledged powers, as they also do in regulating the remedies and modes of proceeding in those courts.

It was, nevertheless, insisted that the right to regulate the remedy, and to modify the obligation of the

contract, were the same; that obligation and remedy were identical and synonymous. But the answer given to this proposition seems to be conclusive. It was, "that the obligation and the remedy originate at different times." The obligation to perform is certainly coeval with the contract itself, and operates anterior to the time of performance; while the remedy acts upon a broken contract, and enforces a pre-existing obligation. The right to contract is the acknowledged attribute of a free agent, and he may rightfully coerce performance from another free agent who violates his faith. Contracts have, consequently, an intrinsic obligation. When men enter into societies, they can no longer exercise this original and natural right of coercion; it is surrendered for the means of coercion afforded by society But the right to contract is not surrendered with the right to coerce performance. The former is still incidental to that degree of free agency which the laws of society leave to every individual, and the obligation of the contract is the necessary consequence of the right to make it. Laws regulate this right; and where it is not regulated, it is retained in its original extent. Obligation and remedy, then, are not identical; they originate at different times, and are derived from different sources.

But it was alleged that "the power of the state over the remedy might be used to the destruction of all beneficial results from the right;" and hence it was inferred that "the construction which maintains the inviolability of the obligation must be extended to the power of regulating the remedy." The difficulty, however, which this view of the subject presents, does not proceed from the identity or connexion of right and remedy, but from the existence of distinct governments, acting on kindred subjects.

The Constitution of the United States contemplates restraint as to the obligation of contracts, not as to the application of the remedy. If this restraint affect a power which the Constitution did not mean to touch, it can only be when that power is used as an instrument of hostility to invade the inviolability of contracts, which is placed beyond its reach. A state may use many of its acknowledged powers in such a manner as to come into conflict with the provisions of the Federal Constitution; thus the powers over the domestic police, and the power to regulate its purely internal commerce, may, as we have already seen, be so exercised as to interfere with the regulation by Congress of commerce with foreign nations, or among the states. In such cases, as we have before observed, the power which is supreme must control that which is subordinate. This principle neither involves self-contradiction, nor denies the existence of the several powers in the respective govern

ments.

So, if a state shall not merely modify or withhold a particular remedy, but shall apply it in such a manner as to extinguish the obligation without performance of a contract, it would be an abuse of power which could scarcely be misunderstood; but it would not prove that remedy could not be regulated without regulating obligation.

It was urged, however, as a conclusive argument against the existence of a distinct line of division between obligation and remedy, that "the same power which can withdraw the remedy against the person of the debtor, can also withdraw that against his property," and thus effectually defeat the obligation. "The Constitution," it was said, "did not deal with form, but with substance; and could not be presumed, if it designed to protect the obligation of contracts from state legislation, to have left it thus obviously

exposed to destruction." The answer is, that the state law goes farther, and annuls the obligation without affording the remedy which satisfies it; or, if its action on the remedy be such as palpably to impair the obligation of the contract, the very case arises which was supposed to be prohibited. If the law leaves the obligation untouched, but withholds the remedy, or affords one which is merely nominal, why, this is like all other cases of misgovernment, and leaves the debtor still liable to his creditors, should he, or his property, be found where the laws afford a remedy. But should it even be determined that such a law was a successful evasion of the Constitution, it would not follow that an act which operates directly on the contract after it is made was not within the restriction imposed on the states. The validity of a law acting immediately upon the obligation is not proved by showing that the Constitution has provided no means for compelling the states to enfore the contract. The prohibition in question is, therefore, not incompatible with the fair exercise of that discretion which the state legislatures possess, in common with all governments, to regulate the remedies afforded by their own courts.

It is impossible to look back to the history of the times when the august spectacle was exhibited of a whole people assembling by their representatives in order to unite thirteen independent sovereignties under one government, so far as might be necessary for the purposes of union, without being sensible of the great importance which was attached to this article of the Constitution. The power of changing the relative situations of debtor and creditor, of interfering with contracts, a power which comes home to the business of every man, touches the interest of all classes, and controls the conduct