Ogden v. Saunders. 12 W. upon any actual cession of State power, but upon the creation of a new power which no State ever pretended to possess; a power which, so far from necessarily diminishing or impairing the State power over the subject, might find its full exercise in simply recognizing as valid, in every State, all discharges which shall be honestly obtained under the existing laws of any State. Again the inference proposed to be deduced from this grant to congress will be found much broader than the principle in which the deduction is claimed. For, in this, as in many other instances in the constitution, the grant implies only the right to assume and exercise a power over the subject. Why, then, should the State powers cease before congress shall have acted upon the subject? or why should that be converted into a present and absolute relinquishment of power which is, in its nature, merely potential, and dependent on the discretion of congress whether, and when, to enter on the exercise of a power that may supersede it? Let any one turn his eye back to the time when this grant was made, and say if the situation of the people admitted of an abandonment of a power so familiar to the jurisprudence of every State; so universally sustained in its reasonable exercise by the opinion and practice of mankind, and so vitally important to a people overwhelmed in debt, and urged to enterprise by the activity of mind that is generated by revolutions and free governments. I will with confidence affirm that the constitution had never been adopted, had it then been imagined that this question would ever have been made, or that the exercise of this power in the States should ever have depended upon the views of the tribunals to which that constitution was about to give existence. The argument proposed to be drawn from a comparison of this power with that of congress over naturalization, is not a fair one, for the cases are not parallel; and if they were, it is by no means settled that the States would have been precluded from this power, *if con- [ *277 ] gress had not assumed it. But, admitting, argumenti gratia, that they would, still, there are considerations bearing upon the one power which have no application to the other. Our foreign intercourse being exclusively committed to the general government, it is peculiarly their province to determine who are entitled to the privileges of American citizens and the protection of the American government. And the citizens of any one State being entitled by the constitution to enjoy the rights of citizenship in every other State, that fact creates an interest in this particular in each other's acts, which does not exist with regard to their bankrupt laws; since state acts of naturalization would thus be extra-territorial in their oper Ogden v. Saunders. 12 W. ation, and have an influence on the most vital interests of other States. On these grounds, state laws of naturalization may be brought under one of the four heads or classes of powers precluded to the States, to wit: that of incompatibility; and on this ground alone, if any, could the States be debarred from exercising this power, had congress not proceeded to assume it. There is, therefore, nothing in that argument. The argument deduced from the commercial character of bankrupt laws is still more unfortunate. It is but necessary to follow it out, and the inference, if any, deducible from it, will be found to be direct and conclusive in favor of the State rights over this subject. For if, in consideration of the power vested in congress over foreign commerce and the commerce between the States, it was proper to vest a power over bankruptcies that should pervade the States; it would seem that, by leaving the regulation of internal commerce in the power of the States, it became equally proper to leave the exercise of this power within their own limits unimpaired. With regard to the universal understanding of the American people on this subject, there cannot be two opinions. If ever contemporaneous exposition and the clear understanding of the contracting parties, or of the legislating power, (it is no matter in which light it be considered,) could be resorted to as the means of expounding an instrument, the continuing and unimpaired existence of this power in the States ought never to have been controverted. Nor [ * 278 ] was it * controverted until the repeal of the bankrupt act of 1800,1 or until a state of things arose in which the means of compelling a resort to the exercise of this power by the United States became a subject of much interest. Previously to that period, the States remained in the peaceable exercise of this power, under circumstances entitled to great consideration. In every State in the Union was the adoption of the constitution resisted by men of the keenest and most comprehensive minds; and if an argument such as this, so calculated to fasten on the minds of a people jealous of state rights, and deeply involved in debt, could have been imagined, it never would have escaped them. Yet nowhere does it appear to have been thought of; and, after adopting the constitution in every part of the Union, we find the very framers of it everywhere among the leading men in public life, and legislating or adjudicating under the most solemn oath to maintain the constitution of the United States, yet nowhere imagining that in the exercise of this power they violated their oaths, or transcended their rights. Everywhere, 1 2 Stats. at Large, 19. Ogden v. Saunders. 12 W. pre too, the principle was practically acquiesced in, that taking away the power to pass a law on a particular subject was equivalent to a repeal of existing laws on that subject. Yet in no instance was it contended that the bankrupt laws of the States were repealed, while those on navigation, commerce, the admiralty jurisdiction, and various others, were at once abandoned without the formality of a repeal. With regard to their bankrupt or insolvent laws, they went on carrying them into effect, and abrogating, and reënacting them, without a doubt of their full and unimpaired power over the subject. Finally, when the bankrupt law of 1800 was enacted, the only power that seemed interested in denying the right to the States, formally pronounced a full and absolute recognition of that right. It is impossible for language to be more full and explicit on the subject than is the sixth section of this act of congress. It acknowledges both the validity of existing laws and the right of passing future laws. The practical construction given by that act to the constitution is cisely this, that it amounts only to a right to assume the power to legislate on the subject, and, therefore, abrogates or suspends the existing laws only so far as they may * clash with [*279 ] the provisions of the act of congress. This construction was universally acquiesced in, for it was that on which there had previously prevailed but one opinion from the date of the constitution. Much alarm has been expressed respecting the inharmonious operation of so many systems, all operating at the same time. But I must say, that I cannot discover any real ground for these apprehensions. Nothing but a future operation is here contended for; and nothing is easier than to avoid those rocks and quicksands which are visible to all. Most of the dangers are imaginary; for the interests of each community, its respect for the opinion of mankind, and a remnant of moral feeling, which will not cease to operate in the worst of times, will always present important barriers against the gross violation of principle. How is the general government itself made up, but of the same materials which separately make up the governments of the States ? It is a very important fact, and calculated to dissipate the fears of those who seriously apprehend danger from this quarter, that the powers assumed and exercised by the States over this subject did not compose any part of the grounds of complaint by Great Britain, when negotiating with our government on the subject of violations of the treaty of peace. Nor is it immaterial, as an historical fact, to show the evils against which the constitution really intended to provide a remedy. Indeed, it is a solecism to suppose that the permanent laws of any government, particularly those which relate to Ogden v. Saunders. 12 W. the administration of justice between individuals, can be radically unequal, or even unwise. It is scarcely ever so in despotic governments, much less in those in which the good of the whole is the predominating principle. The danger to be apprehended is from temporary provisions and desultory legislation; and this seldom has a view to future contracts. At all events, whatever be the degree of evil to be produced by such laws, the limits of its action are necessarily confined to the territory of those who inflict it. The ultimate object in denying to the States this power would seem to be, to give the evil a wider range, if it be one, by extending the benefit of discharges over the But it is impossible to suppose that [* 280] whole of the Union. * the framers of the constitution could have regarded the exercise of this power as an evil in the abstract, else they would hardly have engrafted it upon that instrument which was to become the great safeguard of public justice and public morals. And, had they been so jealous of the exercise of this power in the States, it is not credible that they would have left unimpaired those unquestionable powers over the administration of justice which the States do exercise, and which, in their immoral exercise, might leave to the creditor the mere shadow of justice. The debtor's person, no one doubts, may be exempted from execution. But there is high precedent for exempting his lands; and public feeling would fully sustain an exemption of his slaves. What is to prevent the extension of exemption, until nothing is left but the mere mockery of a judgment, without the means of enforcing its satisfaction? But it is not only in their execution laws that the creditor has been left to the justice and honor of the States for his security. Every judiciary in the Union owes its existence to some legislative act; what is to prevent a repeal of that act? and then, what becomes of his remedy, if he has not access to the courts of the Union? Or what is to prevent the extension of the right to imparl? of the time to plead? of the interval between the sittings of the state courts? Where is the remedy against all this? and why were not these powers taken also from the States, if they could not be trusted with the subordinate and incidental power here denied them? The truth is, the convention saw all this, and saw the impossibility of providing an adequate remedy for such mischiefs, if it was not to be found, ultimately, in the wisdom and virtue of the state rulers, under the salutary control of that republican form of government which it guarantees to every State. For the foreigner and the citizens of other States, it provides the safeguard of a tribunal which Ogden v. Saunders. 12 W. cannot be controlled by state laws in the application of the remedy; and, for the protection of all, was interposed that oath which it requires to be administered to all the public functionaries, as well of the States as the United States. It may be called the rul ing principle of the constitution, to interfere as little as [281] possible between the citizen and his own state government; and hence, with a few safeguards of a very general nature, the executive, legislative, and judicial functions of the States are left as they were, as to their own citizens, and as to all internal concerns. It is not pretended that this discharge could operate upon the rights of the citizen of any other State, unless his contract was entered into in the State that gave it, or unless he had voluntarily submitted himself to the lex fori of the State before the discharge; in both which instances he is subjected to its effects by his own voluntary act. For these considerations, I pronounce the exclusive power of congress over the relief of insolvents untenable, and the dangers apprehended from the contrary doctrine unreal. We will next inquire whether the States are precluded from the exercise of this power by that clause in the constitution which declares that no State shall " pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. This law of the State of New York is supposed to have violated the obligation of a contract, by releasing Ogden from a debt which he had not satisfied; and the decision turns upon the question, first, in what consists the obligation of a contract? and, secondly, whether the act of New York will amount to a violation of that obligation, in the sense of the constitution? The first of these questions has been so often examined and considered, in this and other courts of the United States, and so little progress has yet been made in fixing the precise meaning of the words "obligation of a contract," that I should turn in despair from the inquiry, were I not convinced that the difficulties the question presents are mostly factitious, and the result of refinement and technicality; or of attempts at definition, made in terms defective, both in precision and comprehensiveness. Right or wrong, I come to my conclusion on their meaning, as applied to executory contracts, the subject now before us, by a simple and short-handed exposition. Right and obligation are considered, by all ethical writers, as correlative terms. Whatever I, by my contract, give [* 282 ] another a right to require of me, I, by that act, lay myself under an obligation to yield or bestow. The obligation of every contract will then consist of that right or power over my will or |