state of society, all contracts of men receive a relative, and not a positive interpretation. The state construes them, the state applies them, the state controls them, and the state decides, how far the social exercise of the rights, they give over each other, can be justly asserted.' Again, it has been said, that the constitution distinguishes between a contract, and the obligation of a contract. The latter is the law, which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the contract in every shape, in which it is intended to bear upon it. Again, it has been said, that the obligation of a contract consists in the power and efficacy of the law, which applies to, and enforces performance of it, or an equivalent for non-performance. The obligation does not inhere, and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. And again, it has been said, that a contract is an agreement of the parties; and if it be not illegal, it binds them to the extent of their stipulations. Thus, if a party contracts to pay a certain sum on a certain day, the contract binds him to perform it on that day, and this is its obligation.* § 1373. Without attempting to enter into a minute examination of these various definitions, and explanations of the obligation of contracts, or of the reasoning, by which they are supported and illustrated; there are some considerations, which are pre-supposed by all 1 Per Johnson J. in Ogden v. Saunders, 12 Wheat. R. 281, 282. 2 Id. Washington J., p. 257, 258, 259; Thompson J., p. 300, 302; Trimble J., p. 316. 3 Id. Trimble J., p. 317, 318. 4 Id. Marshall C. J., p. 335, 344 to 346; Sturgis v. Crowninshield, 4 Wheat. R. 197; Fletcher v. Peck, 6 Cranch's R. 137. of them; and others, which enter into some, and are excluded in others. § 1374. It seems agreed, that, when the obligation of contracts is spoken of in the constitution, we are to understand, not the mere moral, but the legal obligation of contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please. It is addressed to the conscience of the parties, under the solemn admonitions of accountability to the Supreme Being. No human lawgiver can either impair, or reach it. The constitution has not in contemplation any such obligations, but such only, as might be impaired by a state, if not prohibited. It is the civil obligation of contracts, which it is designed to reach, that is, the obligation, which is recognised by, and results from the law of the state, in which it is made. If, therefore, a contract, when made, is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation, because the law in such cases forbids its having any binding efficacy, or force. It confers no legal right on the one party, and no correspondent legal duty on the other. There is no means allowed, or recognised to enforce it; for the maxim is, ex nudo pacto non oritur actio. But when it does not fall within the predicament of being either illegal, or void, its obligatory force is coextensive with its stipulations. § 1375. Nor is this obligatory force so much the result of the positive declarations of the municipal law, as of the general principles of natural, or (as it is some 1 Ogden v. Saunders, 12 Wheaton's R. 257, 258, 280, 281, 300, 316 to 318, 337, 338. times called) universal law. In a state of nature, independent of the obligations of positive law, contracts may be formed, and their obligatory force be complete.' Between independent nations, treaties and compacts are formed, which are deemed universally obligatory; and yet in no just sense can they be deemed dependent on municipal law. Nay, there may exist (abstractly speaking) a perfect obligation in contracts, where there is no known and adequate means to enforce them. As, for instance, between independent nations, where their relative strength and power preclude the possibility, on the side of the weaker party, of enforcing them. So in the same government, where a contract is made by a state with one of its own citizens, which yet its laws do not permit to be enforced by any action or suit. In this predicament are the United States, who are not suable on any contracts made by themselves; but no one doubts, that these are still obligatory on the United States. Yet their obligation is not recognised by any positive municipal law in a great variety of cases. It depends altogether upon principles of public or universal law. Still, in these cases there is a right in the one party to have the contract performed, and a duty on the other side to perform it. But, generally speaking, when we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are absolutely denied, the obligation of the contract is understood to be impaired, though it may not be completely annihilated. Rights may, indeed, exist without any present adequate 1 Ogden v. Saunders, 12 Wheat. R. 281, 282; Id. 344 to 346; Id. 350. 2 Ogden v. Saunders, 12 Wheat. R. 280, 281, 344 to 346. correspondent remedies between private persons. Thus, a state may refuse to allow imprisonment for debt; and the debtor may have no property. But still the right of the creditor remains; and he may enforce it against the future property of the debtor. So a debtor may die without leaving any known estate, or without any known representative. In such cases we should not say, that the right of the creditor was gone; but only, that there was nothing, on which it could presently operate. But suppose an administrator should be appointed, and property in contingency should fall in, the right might then be enforced to the extent of the existing means. § 1376. The civil obligation of a contract, then, though it can never arise, or exist contrary to positive law, may arise or exist independently of it; and it may be, exist, notwithstanding there may be no present adequate remedy to enforce it. Wherever the municipal law recognises an absolute duty to perform a contract, there the obligation to perform it is complete, although there may not be a perfect remedy. § 1377. But much diversity of opinion has been exhibited upon another point; how far the existing law enters into, and forms a part of the contract. It has been contended by some learned minds, that the municipal law of the place, where a contract is made, forms a part of it, and travels with it, wherever the parties to it may be found. If this were admitted to be true, the consequence would be, that all the existing laws of a state, being incorporated into the contract, would con 1 See Sturgis v. Crowninshield, 4 Wheat. 200, 201; Mason v. Haile, 12 Wheat. R. 370. 2 Ogden v. Saunders, 12 Wheat. R. 344 to 346; Id. 350. 3 Ogden v. Saunders, 12 Wheat. R. 259, 260; Id. 297, 298, 302. stitute a part of its stipulations, so that a legislative repeal of such laws would not in any manner affect it.1 Thus, if there existed at the time a statute of limitations, operating on such contracts, or an insolvent act, under which they might be discharged, no subsequent repeal of either could vary the rights of the parties, as to using them, as a bar to a suit upon such contracts. If, therefore, the legislature should provide by a law, that all contracts thereafter made should be subject to the entire control of the legislature, as to their obligation, validity, and execution, whatever might be their terms, they would be completely within the legislative power, and might be impaired, or extinguished by future laws; thus having a complete ex post facto operation. Nay, if the legislature should pass a law declaring, that all future contracts might be discharged by a tender of any thing, or things, besides gold and silver, there would be great difficulty in affirming them to be unconstitutional; since it would become a part of the stipulations of the contract. And yet it is obvious, that it would annihilate the whole prohibition of the constitution upon the subject of tender laws.2 § 1378. It has, therefore, been judicially held by a majority of the Supreme Court, that such a doctrine is untenable. Although the law of the place acts upon a contract, and governs its construction, validity, and obligation, it constitutes no part of it. The effect of such a principle would be a mischievous abridgment of legislative power over subjects within the proper jurisdiction of states, by arresting their power to repeal, or modify such laws with respect to existing contracts.3 1 Ogden v. Saunders, 12 Wheat. R. 260, 261, 262, 284, 336 to 339. |