Imatges de pàgina
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of every individual in those things which he supposes proper for his own exclusive management, had been abused to such an excess by the state legislatures as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. The mischief had become so great and so alarming, as not only to impede commercial intercourse and threaten the existence of public credit, but to injure the morals of the people, and destroy the sanctity of private faith. To guard against the recurrence of such evils was an object of deep interest with all the truly wise and virtuous men in the community, as well as in the Convention, and one of the most important benefits anticipated and realized from the reform of the government.

The imposition of restraints on state legislation in regard to this delicate subject was thought necessary by all who took an honest, enlightened, and comprehensive view of the situation of the country, and the principle in question obtained an early admission into the various schemes of government submitted to the Convention. In framing a national compact intended to be perpetual, the presumption is, that every important principle introduced into it was intended to be perpetual also; and, if expressed in terms which give it operation in all future time, the fair inference is, that it was intended so to operate. But, if the construction against which we have been contending be the true one, the Constitution will have imposed a restriction in words, which every state in the Union may elude at pleasure. The obligation of contracts in force at any given period is but of short duration, and if the inhibition be of retrospective laws only, a very short lapse of time would remove every subject on which the act is forbidden by the Constitution to operate, and render this provision so far useless.

Instead of introducing a great principle prohibiting all laws of this obnoxious character, the Constitution would only suspend their operation for a season, or only except pre-existing cases: an object which would hardly have been deemed of sufficient importance to have found a place in that instrument. Such a construction, moreover, would change the character of the provision, and convert an inhibition to pass laws impairing the obligation of contracts into an inhibition to pass retrospective laws. Had this been all that was intended by the Convention, it would probably have been expressed in those very words: the prohibition would have been against "any retrospective law," instead of the more general one against "any law impairing the obligation of contracts;" or, if the intention had been not to embrace all retrospective laws, but those only which related to contracts, the State Legislature would have been forbidden to pass "any retrospective law impairing the obligation of contracts," or "any law impairing the obligation of contracts previously made." For if the minds of the Convention, in framing this prohibition, had been directed not generally to the operation of laws upon the obligation of contracts, but particularly to their retrospective operation, it is scarcely conceivable, notwithstanding the imperfection of human language, that some words would not have been used to indicate that idea, and limit their intention. In instruments prepared on great consideration, and especially in those granting political power, general terms, comprehending a whole subject, are seldom employed to designate a particular or minute portion of it. The general language of this clause is such as might be suggested by a general intent to prohibit state legislation on the subject to which that language is applied—the obligation of contracts—not such as

would be suggested by a particular intent to prohibi retrospective legislation. Besides, the laws which had effected all the mischief the Constitution intended to prevent, were prospective, as well as retrospective in their operation. They embraced future contracts as well as those previously made; from this circumstance, therefore, there is less reason for imputing to the Convention an intention not manifested by their language, and adopt a construction which would confine a restriction designed to guard against those mischiefs in future to retrospective legislation.

Notwithstanding all this, the decision of the majority of the Supreme Court, in the case which gave rise to this discussion, was, as we have mentioned, in favour of the validity of a discharge under a state insolvent law, where the contract was made between citizens of the state under the insolvent system of which the discharge had been obtained, and in whose courts it had been pleaded. But upon the question whether a discharge of a debtor, under a state insolvent law, would be valid against a creditor or citizen of another state, who had never voluntarily subjected himselt to the state authority, otherwise than by the origin of his contract, one of the judges in the majority agreed with those in the minority on the former question, that the discharge was not available in an action brought by a citizen of another state, either in the courts of the United States, or of any other state than that in which the discharge was obtained. So that the decision in favour of state insolvent laws impairing the obligation of subsequent contracts, is restricted to cases in which the contract was made within the state, and between citizens of the same state, or aliens, but is sought to be enforced in the courts of that state in which the law was passed.*

* That a state law may be retrospective in its character, and

II. The other limitations on the state powers are those in which the prohibition is qualified, and restrict a state, without the consent of Congress, from laying "any imposts or duties on imports or exports except what may be absolutely necessary" for executing its inspection laws; from laying any duty on tonnage; keeeping troops or ships of war in time of peace; entering into any agreement or compact with another state, or with a foreign power, or from engaging in war, unless actually invaded, or in such imminent danger of invasion as will not admit of delay.

1st. The restraint on the power of the states as to imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of commerce to the General Government. From the vast inequality between the different states

devest private rights, without violating the Federal Constitution, unless it also impairs the obligation of contracts, was affirmed, more recently, by the Supreme Court of the United States, in a case brought up on appeal from the highest court of Massachusetts. The Legislature of that state had granted to Harvard College the liberty and power of disposing of a ferry from Charlestown to Boston, and of receiving a rent for it. Afterward the Legislature incorporated a company to erect a bridge over Charles River, at the place where the ferry had been established, the company paying annually to the college a certain sum of money. The charter gave the company the right to take tolls for forty years, and afterward extended it to seventy. Before the forty years expired, the Legislature authorized the erection of another bridge, so near the first as injuriously to affect its tolls. The proprietors of the first bridge applied to the Massachusetts Court to restrain by injunction the construction of the second bridge; but the court dismissed the bill, and the case was carried by appeal to the Supreme Court of the United States, on the ground that the first charter was a contract, and the grant of the second a violation of it. The decree of the Massachusetts court was affirmed; and in giving its opinion, the Supreme Court observed, that "a uniform course of action, involving the right to the exercise of an important power by the state government for half a century, and this almost without question was not satisfactory evidence that the power was rightfully ex ercised."-Vide 11 Peters's Rep., 257.

as to commercial advantages, few subjects were viewed with deeper interest, or excited greater irritation, than the manner in which the several states exercised, or seemed under the Confederation disposed to exercise, the power of laying duties on imports. From motives which were thought sufficient by the Convention, the general power of taxation, indispensably necessary as it was, and jealous as the states were of any encroachments upon it, was so far abridged as to forbid their touching imports or exports, with the single exception specified in the Constitution 1; and they were thus restrained, from a general conviction that the interest of all would be promoted by placing the whole subject under the exclusive control of Congress.

In considering the power of Congress to regulate commerce, I referred to a decision of the Supreme Court, declaring unconstitutional an act of a State Legislature requiring importers of foreign goods, and the venders of the same at wholesale, to obtain a license from the state, and pay a sum of money for the same to the state treasury.* This act was also declared to be repugnant to the prohibition of the states from laying duties on exports and imports without the consent of Congress. An impost or duty on imports is a custom or tax levied upon articles brought into the country for sale or use; and is most usually secured before the importer is allowed to exercise his right of ownership over them, because evasions of the revenue laws can be prevented more certainly by executing them while the articles are in the custody of the g 'government. It would not, however, be less an impost on the articles if it were levied on them after they were landed. The policy,

* 12 Wheaton, 419.

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