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We think the result clear also, of those provisions which respect the discharge of debts without payment. Collated in like manner, they stand thus: " Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United Stales; but no State shall pass any law impairing the obligation of contracts." This collocation cannot be objected to if they refer to the same subject matter; and that they do refer to the same subject matter, we have the authority of this Court for saying, because this Court solemnly determined, in Sturges vs. Ci«teninshuld, that this prohibition on the States did apply to systems of bankruptcy. It must be now taken, therefore, that State bankrupt laws were in the mind of the Convention when the prohibition was adopted, and, therefore, the grant to Congress on the subject of bankrupt laws, and the prohibition to the State on the same subject, arc properly to be taken and read together; and being thus read together, is not the intention clear to take away from the States the power of passing bankrupt laws, since, while enacted by them, such laws would not be uniform, and to confer the power exclusively on Congress, by whom uniform laws could be established?
Suppose the order of arrangement in the constitution had been otherwise than it is, and that the prohibitions to the States had preceded the grants of power to Congress, the two powers, when collated, would then have read thus: "JVb Stale shall pass any law impaiting the obligation of contracts; but Congress may establish uniform laws on the subject of bankruptcies." Could any man have doubted, in that case, that the meaning was, that the States should not pass laws discharging debts without payment, but that Congress might establish unitorm bankrupt acts? and yet this inversion of the order of the clauses does not alter their sense. We contend, that Congress alone possesses the power of establishing bankrupt laws; and although we are aware, that in Slurges vs. Crowniushuld, the Court decided, that such an exclusive power could not be inferred from the words of the grant in the seventh section, we yet would respectfully request the bench to reconsider this point. We think it could not have been intended that both the States and general government should exercise this power; and, therefore, that a grant to one implies the prohibition on the other. But not to press a topic which the Court has already had under its consideration, we contend, that even without reading the clauses of the constitution in the connexion which we have suggested, and which is believed to be the true one, the prohibition in the tenth section, taken by itself, does forbid the enactment of State bankrupt laws, as applied to future, as well as present debts. We argue this from the words of the prohibition; from the association they are found in, and from the objects intended.
1. The words are general. The States can pass no law impairing contracts; that is, any contract. In the nature of things a law may impair a future contract, and, therefore, such contract is within the protection of the constitution. The words being general, it is for the other side to show a limitation; and this, it is submitted, they have wholly failed to do, unless they shall have established the doctrine that the law itself is part of the contract. It may be added, that the particular expression of the constitution is worth regarding. The thing prohibited is called a law, not an act; a law, in itsgeneral acceptation, is a rule prescribed for future conduct, not a legislative interference with existing rights. The framers of the constitution would hardly have given the appellation of law to violent invasions of mdividual right, or individual property, by acts of legislative power. Although, doubtless, such acts fall within this prohibition, yet tbey are prohibited also by general principles, and by the constitutions of the States, and, therefore, further provision against such acts was not so necessary as against other mischiefs.
-2. The most conclusive argument, perhaps, arises from the connexion in which the clause stands. The words of the prohibition, so far as it applies to civil rights, or rights of property, are, "that Do State shall coin money, emit bills of credit, make anything but gold and silver coin a tender in the payment of debts, or pass any law impairing the obligation of contracts." The prohibition of attainders, and ex post facto laws, refer entirely to criminal proceedings, and, therefore, should be considered as standing by themselves; but the other parts of the prohibition are connected by the subject matter, and ought, therefore, to be construed together. Taking the words thus together, according to their natural connexion, how is it possible to give a more limited construction to the term "contracts," in the last branch of the sentence, than to the word "debts," in that immediately preceding? Can a State make anvthing but gold and silver a tender in payment of future debts? This nobody pretends. But what ground is there for a distinction? No State shall make anything but gold and silver a tender in the payment of debts, nor pass any law impairing the obligation of contracts. Now, by what reasoning is it made out that the debts here spoken of, are any debts, either existing or future; but that the contracts spoken of arc subsisting contracts only? Such a distinction seems to us wholly arbitrary. We see no ground for it. Suppose the article, where it uses the word debts, had used the word contracts. The sense would have been the same then, as it now is; but the identity of terms would have made the nature of the distinction now contended for somewhat more obvious. Thus altered, the clause would read, that no State should make anything but gold and silver a tender in discbarge of contracts, nor pass any law impairing the obligation of contracts; yet the first of these expressions would have been held to apply to all contracts, and the last to subsisting contracts onlv. This shows the consequence of what is now contended for in a strong light. It is certain that the substitution of the word contracts, for debts, would not alter the sense; and an argument that could not be sustained if such substitution were made, cannot be sustained now. We maintitin, therefore, that if tender laws may not be made for future debts, neither can bankrupt laws be made for future contracts. All the arguments used here may be applied with equal force to tender laws for future debts. It may be said, for instance, that when it speaks of d*bls, the constitution means existing debts, and not mere possibilities of future debt; that the object was to preserve vested rights; and that if a man, after a tender Jaw had passed, had contracted a debt, the manner in which that tender law authorised that debt to be discharged, became part of the contract, ud that the whole debt, or whole obligation was thus
qualified by the pre-existing law, and was no more than a contract to deliver so much paper money, or of whatever other article which might be made a tender, as the original bargain expressed. Arguments of this sort will not be found wanting in favor of tender laws, if the Court yield to similar arguments in favor of bankrupt laws.
These several prohibitions of the constitution stand in the same paragraph; they have the same purpose, and were introduced for the same object; they are expressed in words of similar import, in grammar, and in sense; they are subject to the same construction, and, we think, no reason has yet been given for imposing an important restriction on one part of them, which does not equally show, that the same restriction might be imposed also on the other part.
We have already endeavoured to maintain, that one great political object, intended by the constitution, would be defeated, if this) construction were allowed to prevail. As an object of political regulation, it was not important to prevent the States from passing bankrupt laws applicable to present debts, while the power was left to them in regard to future debts; nor was it at all important, in a political point of view, to prohibit tender laws as to future debts, while it was yet left to the States to pass laws for the discharge of such debts, which, after all, are little different, in principle, from -tender laws. Look at the law before the Court in this view. It ^ provides that if the debtor will surrender, offer, or lender to trustees, for the benefit of his creditors, all his estate and effects, he sh'all be discharged from all his debts. If it had authorised a tender of anything but money to any one creditor, though it were of a value equal to the debt, and thereupon provided for a discharge, it would have been clearly invalid. Yet it is maintained to be good, merely because it is made for all creditors, and seeks a discharge from all debts; although the thing tendered mav not be equivalent to a shilling in the pound of those debts. This shows, again, very clearly how the constitution has failed of its purpose, if, having in terms prohibited all tender laws, and taken so much pains to establish a uniform medium of payment, it has yet left the States the power of discharging debts, as they may see fit, without any payment at all.
To recapitulate what has been said, we maintain; first, that the constitution, by its grants to Congress, and its prohibitions on the States, has sought to establish one uniform standard of value, or medium of payment. Second, that, by like means, it has endeavoured to provide for one uniform mode of discharging debts, when they arc to be discharged without payment. Third, that these objects arc connected, and that the first loses much of its importance, if the last, also, be not accomplished. Fourth, that reading the grant to Congress and the prohibition on the States together, the inference is strong that the constitution intended to confer an exclusive power to pass bankrupt laws on Congress. Fifth, that the prohibition, in the tenth section, reaches to all contracts existing or future, in the same way as the other prohibition in the same section extends to all debls existing or future. Sixthly, and that, upon any other construction, one great political object of the constitution will fail of its accomplishment.
IN THE CONVENTION OF DELEGATES CHOSEN TO REVISE THE CONSTITUTION OF MASSACHUSETTS, UPON THE RESOLUTION RELATIVE TO OATHS OF OFFICE. 1821.
It is obvious that the principal alteration, proposed by the first resolution, is the omission of the declaration of belief in the Christian religion, as a qualification for office, in the cases of the governor, lieutenant gqvernor, counsellors, and members of the legislature. I shall content myself on this occasion with stating, shortly and generally, the sentiments of the select committee, as I understand them, on the subject of this resolution. Two questions naturally present themselves. In the first place; have the people a right, if m their judgment the security of their government and its due administration demand it, to require a declaration of belief in the Christian religion, as a qualification or condition of office! On this question, a majority of the committee held a decided opinion. They thought the people had such a right. By the fundamental principle of popular and elective governments, all office is in the free gift of t»e people. They may grant, or they may withhold it at pleasure;— and if it be for them, and them only, to decide whether they will grant office, it is for them to decide, also, on what terms, and with what conditions, they will grant it. Nothing is more unfounded than the notion that any man has a right to an oflicc. This must depend on tbe choice of others, and consequently upon the opinions of others, in relation to his fitness and qualification for olfice. No man can be said to have a right to that, which others may withhold from hun at pleasure. There are certain rights, no doubt, which the whole people, or the government as representing the whole people, owe to each individual, in return for that obedience and personal service, and proportionate contributions to the public burdens, which each individual owes to the government. These rights arc stated with sufficient accuracy, in the tenth article of the Bill of Rights, in this constitution. "Each individual in society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to the standing laws." Here is no right of office enumerated; no right of governing others, or of bearing rule in the state. AJJ bestowmeiU of office remaining in the discretion of the people, tbey have of course a right to regulate it, by any rules which they may deem expedient. Hence the people, by their constitution, preNew York, it is to be enforced by the laws of that State. But if they remove with the article to Pennsylvania or Maryland, there a new law comes to act upon the contract, and to apply other remedies if it be broken. Thus far the remedies are furnished by the laws of society. But suppose the same parties to go together to a savage wilderness, or a desert island, beyond the reach of the laws of any society; the obligation of the contract still subsists, and is as perfect as ever, and is now to be enforced by another law, that is, the law of nature, and the party to whom the promise was made, has a right to take bv force the animal, the utensil, or the weapon, that was promised to him. The right is as perfect here, as it was in Pennsylvania, or even in New York; but this could not be so if the obligation were created by the law of New York, or were dependent on that law for its existence, because the laws of that State car. have no operation beyond its territory. Let us reverse this example. Suppose a contract to be made between two persons cast ashore on an uninhabited territory, or in a place over which no law of society extends. There are such places, and contracts have bepn made there bv individuals casuallv there, and these contracts have been enforced in Courts of law in civilized communities. Whence do such contracts derive thtir obligation, if not from universal law?
If these considerations show us that the obligation of a lawful contract does not derive its force from the particular law of the place where made, but may exist where that law does not exist, and be enforced where that law has no validity, then it follows, we contend, that any statute which diminishes or lessens its obligation, does impair it, whether it precedes or succeeds the contract in date. The contract having an independent origin, whenever the law comes to exist together with it, and interferes with it, it lessens, we say, and impairs its own original and independent obligation. In the case before the Court, the contract did not owe its existence to the particular law of New York; it did not depend on that law, but could be enforced without the territory of that State, as well as within it. Nevertheless, though legal, though thus independently existing, though thus binding the party everywhere, and capable of being enforced everywhere, yet, the statute of New York says, that it shall be discharged without payment. This, we say, impairs the obligation of that contract. It is admitted to have been legal in its inception, legal in its full extent, and capable of being enforced by other tribunals according to its terms. An act, then, purporting to discharge it without payment, is, as we contend, an act impairing its obligation.
But here we meet the opposite argument, stated on different occasions in different terms, but usually summed up in this, that the law itself is a part of the contract, and, therefore, cannot impair it. What does this mean? Let us seek for clear ideas. It does not mean that the law gives any particular construction to the terms of the contract, or that it makes the promise, or the consideration, or the time of performance, other than they are expressed in the instrument itself. It can only mean, that it is to be takon as a part of the contract, or understanding of the parties, that the contract itself shall be enforced by such laws and regulations, respecting remedy,