judicial functions; nor from divesting rights, vested by law in an individual; provided its effect be not to impair the obligation of a contract.1 If such a law be void, it is upon principles derived from the general nature of free governments, and the necessary limitations created thereby, or from the state restrictions upon the legislative authority, and not from the prohibitions of the constitution of the United States. If a state statute should, contrary to the general principles of law, declare, that contracts founded upon an illegal or immoral consideration, or otherwise void, should nevertheless be valid, and binding between the parties; its retrospective character could not be denied; for the effect would be to create a contract between the parties, where none had previously existed. Yet it would not be reached by the constitution of the United States; for to create a contract, and to impair or destroy one, can never be construed to mean the same thing. It may be within the same mischief, and equally unjust, and ruinous; but it does not fall within the terms of the prohibition. So, if a state court should decide, that the relation of landlord and tenant did not legally subsist between certain persons; and the legislature should pass a declaratory act, declaring, that it did subsist; the act, so far as the constitution of the United States is concerned, would be valid. So, if a state legislature - should confirm a void sale, if it did not divest the settled rights of property, it would be valid. Nor (as has been already seen) would a state law, discharging 2 1 Satterlee v. Mathewson, 2 Peters's Sup. R. 380, 413; Calder v. Bull, 3 Dall. R. 386. See Olney v. Arnold, 3 Dull. R. 308; Wilkinson v. Leland, 2 Peters's Sup. R. 627. 2 Satterlee v. Mathewson, 2 Peters's Sup. R. 380, 412, 413. 4 Wilkinson v. Leland, 2 Peters's Sup. R. 627, 661. a party from imprisonment under a judgment upon a contract, though passed subsequently to the imprisonment, be an unconstitutional exercise of power; for it would leave the obligation of the contract undisturbed. The states still possess the rightful authority to abolish imprisonment for debt; and may apply it to present, as well as to future imprisonment.1 2 § 1393. Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental sovereignty, to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property, should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of 1 Mason v. Haile, 2 Peters's Sup. R. 870. 2 Fletcher v. Peck, 6 Cranch, 67, 134. power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.1 § 1394. The remaining prohibition in this clause is, that no state shall "grant any title of nobility." The reason of this prohibition is the same, as that, upon which the like prohibition to the government of the nation is founded. Indeed, it would be almost absurd to provide sedulously against such a power in the latter, if the states were still left free to exercise it. It has been emphatically said, that this is the corner-stone of a republican government; for there can be little danger, while a nobility is excluded, that the government will ever cease to be that of the people.❜ 1 Wilkinson v. Leland, 2 Peters's Sup. R. 627, 657. See also Satterlee v. Mathewson, 2 Peters's Sup. R. 380, 413, 414; Fletcher v. Peck, 6 Cranch, 67, 134; Tenett v. Taylor, 9 Cranch, 52; Town of Pawlet v. Clark, 9 Cranch, 535. See also Sergeant on Const. ch. 28, [ch. 30.] 2 The Federalist, No. 84. CHAPTER XXXV. PROHIBITIONS ON THE STATES. § 1395. THE next clause of the constitution is, "No state shall, without the consent of congress, lay "any duty on tonnage; keep troops, or ships of war "in time of peace; enter into any agreement or com"pact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such "imminent danger, as will not admit of delay." § 1396. The first part of this clause, respecting laying a duty on tonnage, has been already considered. The remaining clauses have their origin in the same general policy and reasoning, which forbid any state from entering into any treaty, alliance, or confederation; and from granting letters of marque and reprisal. In regard to treaties, alliances, and confederations, they are wholly prohibited. But a state may, with the consent of congress, enter into an agreement, or compact with another state, or with a foreign power. What precise distinction is here intended to be taken between treaties, and agreements, and compacts is nowhere explained; and has never as yet been subjected to any exact judicial, or other examination. A learned commentator, however, supposes, that the former ordinarily relate to subjects of great national magnitude and importance, and are often perpetual, or for a great length of time; but that the latter relate to transitory, or local concerns, or such, as cannot possibly affect any other interests, but those of the parties. But this 1 1 Tucker's Black. Comm. App. 310. is at best a very loose, and unsatisfactory exposition, leaving the whole matter open to the most latitudinarian construction. What are subjects of great national magnitude and importance? Why may not a compact, or agreement between states, be perpetual? If it may not, what shall be its duration? Are not treaties often made for short periods, and upon questions of local interest, and for temporary objects?1 § 1397. Perhaps the language of the former clause may be more plausibly interpreted from the terms used, "treaty, alliance, or confederation," and upon the ground, that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character; such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for mutual government, political co-operation, and the exercise of political sovereignty; and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges. The latter clause, "compacts and agreements," might then very properly apply to such, as regarded what might 1 The corresponding article of the confederation did not present exactly the same embarrassments in its construction. One clause was, "No state, without the consent of the United States, in congress assembled, shall enter into any conference, agreement, alliance, or treaty with any king, prince, or state "; and "No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, &c.; specifying accurately the purposes, for which the same is to be entered into, and how long it shall continue." Taking both clauses, it is manifest, that the former refers exclusively to foreign states, or nations; and the latter to the states of the Union. 2 In this view, one might be almost tempted to conjecture, that the original reading was "treaties of alliance, or confederation;" if the corresponding article of the confederation (art. 6) did not repel it. |