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tract is made, enter into and make part of the contract; and some who have advocated the constitutionality of prospective laws, of the character now under consideration, have placed the question on that ground. The advocates of the other side, availing themselves of the infirmity of this argument, have answered triumphantly, "admitting this to be so, the constitution is the supreme law of every State, and must, therefore, upon the same principle, enter into every contract, and overrule the local laws." My answer to this view of *both sides of the question is, that the argument and the [* 325 ] answer to it are equally destitute of truth.

I have already shown that the contract is nothing but the agreement of the parties; and that if the parties, in making their agreement, use the same words, with the same object in view, where there is no law, or where the law recognizes the agreement and furnishes remedies for its enforcement, or where the law forbids or withholds. all remedy for the enforcement of the agreement, it is the very same contract in all these predicaments. I have endeavored to show, and I think successfully, that the obligation of contracts, in the sense of the constitution, consists not in the contract itself, but in a superior external force controlling the conduct of the parties in relation to the contract; and that this superior external force is the law of the State, either tacitly or expressly recognizing the contract, and furnishing means whereby it may be enforced. It is this superior external force, existing potentially, or actually applied, "which binds a man to perform his engagements," which, according to Justinian, is "the chain of the law, by which we are necessarily bound to make some payment, according to the law of the land;" and which, according to Paley, being "a violent motive, resulting from the command of another," obliges the party to perform his contract. The law of the State, although it constitutes the obligation of the contract, is no part of the contract itself; nor is the constitution either a part of the contract, or the supreme law of the State, in the sense in which the argument supposes. The constitution is the supreme law of the land upon all subjects upon which it speaks. It is the sovereign will of the whole people. Whatever this sovereign will enjoins or forbids, must necessarily be supreme, and must counteract the subordinate legislative will of the United States, and of the States.

But on subjects in relation to which the sovereign will is not declared, or fairly and necessarily implied, the constitution cannot, with any semblance of truth, be said to be the supreme law. It could not, with any semblance of truth, be said that the constitution of the United States is the supreme law of any State in relation to the solemnities requisite for conveying real estate, or the respon

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[* 326] sibilities or obligations* consequent upon the use of certain words in such conveyance. The constitution contains no law, no declaration of the sovereign will, upon these subjects, and cannot, in the nature of things, in relation to them, be the supreme law. Even if it were true, then, that the law of a State in which a contract is made is part of the contract, it would not be true that the constitution would be part of the contract. The constitution nowhere professes to give the law of contracts, or to declare what shall or shall not be the obligation of contracts. It evidently presupposes the existence of contracts by the act of the parties, and the existence of their obligation, not by authority of the constitution, but by authority of law; and the preëxistence of both the contracts and their obligation being thus supposed, the sovereign will is announced that no State shall pass any law impairing the obligation of contracts." If it be once ascertained that a contract existed, and that an obligation, general or qualified, of whatsoever kind, had once attached or belonged to the contract by law, then, and not till then, does the supreme law speak, by declaring that obligation shall not be impaired.

It is admitted in argument, that statutes of frauds and perjuries, statutes of usury and of limitation, are not laws impairing the obligation of contracts. They are laws operating prospectively upon contracts thereafter made. It is said, however, they do not apply, in principle, to this case, because the statutes of frauds and perjuries apply only to the remedies; and because, in that case, and under the statutes of usury, the contracts were void from the beginning, were not recognized by law as contracts, and had no obligation; and that the statutes of limitation create rules of evidence only.

Although these observations are true, they do not furnish the true reason, nor, indeed, any reason, why these laws do not impair the obligation of contracts. The true and only reason is, that they operate on contracts made after the passage of the laws, and not upon existing contracts. And hence the Chief Justice very properly remarks, of both usury laws and laws of limitation, in delivering the

opinion in Sturges v. Crowninshield, that if they should be [327] made to operate upon contracts already entered into, they

would be unconstitutional and void. If a statute of frauds and perjuries should pass in a State formerly having no such laws, purporting to operate upon existing contracts, as well as upon those made after its passage, could it be doubted that, so far as the law applied to and operated upon existing contracts, it would be a law "impairing the obligation of contracts?" Here, then, we have the true reason and principle of the constitution. The great principle

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intended to be established by the constitution, was the inviolability of the obligation of contracts, as the obligation existed and was recognized by the laws in force at the time the contracts were made. It furnished to the legislatures of the States a simple and obvious rule of justice, which, however theretofore violated, should by no means be thereafter violated; and whilst it leaves them at full liberty to legislate upon the subject of all future contracts, and assign to them either no obligation or such qualified obligation as, in their opinion, may consist with sound policy and the good of the people, it prohibits them from retrospecting upon existing obligations, upon any pretext whatever. Whether the law professes to apply to the contract itself, to fix a rule of evidence, a rule of interpretation, or to regulate the remedy, it is equally within the true meaning of the constitution, if it, in effect, impairs the obligation of existing contracts; and, in my opinion, is out of its true meaning if the law is made to operate on future contracts only. I do not mean to say that every alteration of the existing remedies would impair the obligation of contracts; but I do say, with great confidence, that a law taking away all remedy from existing contracts would be, manifestly, a law impairing the obligation of contracts. The moral obligation would remain, but the legal or civil obligation would be gone, if such a law should be permitted to operate. The natural obligation would be gone, because the laws forbid the party to enforce performance by his own power. On the other hand, a great variety of instances may readily be imagined, in which the legislature of a State might aljer, modify, or repeal existing remedies, and enact others in their stead, without the slightest ground for a supposition that [* 328 ] the new law impaired the obligation of contracts. If there

be intermediate cases of a more doubtful character, it will be time enough to decide them when they arise.

It is argued that, as the clause declaring that "no State shall pass any law impairing the obligation of contracts," is associated in the same section of the constitution with the prohibition to "coin money, emit bills of credit," or "make any thing but gold and silver coin a legal tender in payment of debts ;" and as these all evidently apply to legislation in reference to future as well as existing contracts, and operate prospectively, to prohibit the action of the law, without regard to the time of its passage, the same construction should be given to the clause under consideration.

This argument admits of several answers. First, as regards the prohibition to coin money and emit bills of credit. The constitution had already conferred on congress the whole power of coining money and regulating the current coin. The grant of this power to con

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gress, and the prohibitions upon the States, evidently take away from the States all power of legislation and action on the subject, and must, of course, apply to the future action of laws, either then made or to be made. Indeed, the language plainly indicates that it is the act of "coining money," and the act of emitting bills of credit, which is forbidden, without any reference to the time of passing the law, whether before or after the adoption of the constitution. The other prohibition, to "make any thing but gold or silver coin a tender in payment of debts," is but a member of the same subject of currency committed to the general government and prohibited to the States. And the same remark applies to it already made as to the other two. The prohibition is, not that no State shall pass any law, but that, even if a law does exist, the "State shall not make any thing but gold and silver coin a legal tender." The language plainly imports that the prohibited tender shall not be made a legal tender, whether a law of the State exists or not. The whole subject of tender, except in gold and silver, is withdrawn from the States. These cases cannot, therefore, furnish a sound rule of interpretation for that clause

which prohibits the States from passing laws "impairing [329] the obligation of contracts." This clause relates to a subject confessedly left wholly with the States, with a single exception; they relate to subjects wholly withdrawn from the States, with the exception that they may pass laws on the subject of tender in gold and silver coin only.

The principle that the association of one clause with another of like kind may aid in its construction is deemed sound, but I think it has been misapplied in the argument. The principle applied to the immediate associates of the words under consideration, is, I think, decisive of this question. The immediate associates are the prohibitions to pass bills of attainder and ex post facto laws. The language and order of the whole clause is, no State shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." If the maxim noscitur a sociis be applied to this case, there would seem to be an end of the question. The two former members of the clause undeniably prohibit retroactive legislation upon the existing state of things, at the passage of the prohibited laws. The associated idea is that the latter member of the same clause should have a similar effect upon the subject-matter to which it relates. I suppose this was the understanding of the American people when they adopted the constitution. I am justified in this supposition by the contemporary construction given to the whole of this clause by that justly celebrated work styled the Federalist, written at the time, for the purpose of recommending the constitution to

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the favor and acceptance of the people. In No. 44, p. 281, commenting upon this very clause and all its members, the following observations are made: "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters."

Did the American people believe, could they believe, these heavy denunciations were levelled against laws which fairly prescribed and plainly pointed out to the people rules for [*330 ] their future conduct, and the rights, duties, and obligations growing out of their future words or actions? They must have understood that these denunciations were just, as regarded bills of attainder and ex post facto laws, because they were exercises of arbitrary power, perverting the justice and order of existing things by the reflex action of these laws. And would they not naturally and necessarily conclude the denunciations were equally just as regarded laws passed to impair the obligation of existing contracts, for the same reason?

The writer proceeds: "Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation, that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the link of a long chain of repetitions; every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society."

I cannot understand this language otherwise than as putting bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, all upon the same footing, and deprecating them all for the same cause. The language shows clearly that the whole clause