is under the control of that body. The people of Missouri and the national Congress may have required, and undoubtedly did require, the new conditions from persons intending to enter the bar, or the ranks of the clergy, as a consequence of the fact that many had participated in acts deemed to be criminal, and did intend to shut the door against such participants; but their legislation cannot be said to inflict a punishment, penalty, or forfeiture, because it takes away, abridges, or impairs no legal right whatever. My conclusion therefore is, that the constitution of Missouri and the statute of Congress, so far as they are applicable to persons admitted to the professional status, are ex post facto laws, and void; so far as they are applicable to persons not admitted but desiring to enter, they are opposed to no restrictions of the national Constitution, and are valid. § 534. These views were lately adopted and enforced by the Supreme Court of the District of Columbia, in Ex parte Magruder (Feb. 12, 1867). Magruder had never been admitted to the bar of that court. An application was made, based upon the decision of the Supreme Court of the United States in the Cummings and Garland cases, that he might be admitted without taking the test oath required by the act of Congress and the rules of the court. The application was, however, denied, for reasons substantially the same as those set forth in the preceding sections. § 535. It hardly need be said that, in my opinion, those clauses of the Missouri constitution which relate to voters, and prescribe conditions for the exercise of the electoral franchise, are opposed to no prohibition of the national Constitution. The subject of voting is completely within the control of the states; the electoral franchise is not a right, but a privilege, which must be conferred by the positive law of each commonwealth. Whenever a state desires to enlarge or restrict the number of voters, it may do so, and no legal rights are impaired. Had the Missouri constitution said in terms that all persons guilty of disloyal practices should in future be cut off from the number of voters; or had it specified individuals by name who were to be thus cut off, these provisions would not come within the definition of ex post facto laws, because no legal right would have been abridged, and no punishment, penalty, or forfeiture inflicted. One consideration is absolutely decisive of this whole question. Assume that the clauses of the Missouri constitution, so far as they require a test oath from voters, should be declared void, what advantage would those persons gain who refuse to take the oath? Could they be admitted to vote? Certainly not; because the organic law of the state does not confer any such right upon them. To that constitution we must go in order to ascertain who are possessed of the electoral franchise; such privilege must be conferred in affirmative terms, silence does not grant it; the fundamental law of the state does grant it to certain specified classes; among whom persons refusing to take the test oath are not included. This fact at once shows that the voter possesses a mere privilege; that the states have supreme control over this privilege; that taking it away, or, what is the same thing, refusing to confer it, does not impair a right, and cannot be regarded as a penalty or punishment. The highest court of Missouri has very recently affirmed the validity of those clauses in the state constitution, which regulate the subject of voting, and it is supposed the case will be reviewed by the Supreme Court of the United States. I add in the footnote a few important cases in which he nature of ex post facto laws has been examined by state courts.1 III. Other express Prohibitions. § 536. The ninth section of the first article provides, in paragraph six, that "no money shall be drawn from the treasury but in consequence of appropriations made by law." The importance of this restriction is evident. It is, indeed, the very key-stone which holds together the arch of constitutional powers and limitations. Withdraw this, and all others would become mere words, with no force or efficacy. How far would an ambitious President be restrained from the accomplishment 1 Matter of Dorsey, 7 Porter's (Ala.) R. 294; Mississippi v. Smedes, 26 Miss. R. 47; Cohen v. Wright, 26 Cal. R. 273; State v. Garesché, 36 Missouri R. 256; State v. Cummings, 36 Missouri R. 263. of his designs by the clause forbidding appropriations for the army for more than two years, if he might draw money from the treasury without appropriation? This single example is enough to illustrate the importance of the provision in question. There could be no safety without it, and the security of the whole governmental fabric depends upon its strict and literal observance by all officers and departments of the adminis tration. The seventh paragraph of the same section, which declares that "no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under the same shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state," does not seem to require particular comment. Second. Those Prohibitions which are directed alone against the State Legislatures. § 537. Passing now to those restrictions which are specially laid upon the states, and which are grouped together in the tenth section of article first, we find that most of them have already been considered in those sections of this work which discuss the power to lay axes, regulate commerce, raise armies, provide navies, an engage in war. Others, such as the prohibition to coin mo ey, emit bills of credit, and make any thing but gold and silver coin a tender in payment of debts, have been sufficiently referred to in their proper connection. The clause forbidding a state to enter into any treaty, alliance, or confederation with a foreign power, or with another state, was involved in the general discussion of the nationality of the United States. Impairing the Obligation of Contracts. § 538. One of the special limitations contained in the tenth section is, however, of the utmost importance, and has given rise to more forensic argument, and occasioned a greater number of judicial decisions, than all other provisions of the Constitution combined. I purpose to give it a careful and ex haustive examination, referring to judgments both of the na- I. What are Contracts within this Provision of the Constitution? § 539. A contract is defined by C. J. Marshall to be "an agreement in which a party undertakes to do, or not to do, a particular thing." Contracts may be express, or implied; express, when the parties formally and in positive terms declare what is to be done or forborne; implied, when the stipulations are not thus definitely set forth, but are inferred from the conduct, situation, or relations of the parties, and the promise is treated as though actually made, because in good faith it ought to have been made. Contracts may also be executory, or executed; executory, when the promise or stipulation is yet unperformed; executed, when the promise or stipulation has been performed. 1. Executory Contracts. § 540. Adopting the foregoing elementary definitions and divisions, I say Express executory contracts made between private persons are plainly within the restrictive provision of the organic law. This has never been doubted or questioned. Implied executory contracts between private persons are as plainly and confessedly covered by the general terms of the Constitution. 2. Executed Contracts. § 541. When the parties have performed the stipulations agreed upon, and the rights are no longer future or executory, but have become fixed, so that the compact is now in the nature of a grant of property, power, or rights, is there still such a contract within the meaning of the Constitution, that the state legislatures are forbidden to step in, annul the perfected results of the executed agreement, and restore the parties to their original position? The Supreme Court of the United States has answered this question in the affirmative, and has decided that executed as well as executory contracts are embraced within the restrictive operation of the Constitution. In many such cases a party would also be protected by the clause in most, if not all, of the state constitutions, forbidding statutes which deprive a person of his property without due process of law. § 542. The first case in order of time was Fletcher v. Peck. The legislature of Georgia had by statute conveyed certain lands to particular grantees. Subsequently the legislature of the same state revoked the former grant, on the ground of alleged corruption, and transferred the lands to other persons. The parties, plaintiff and defendant in the suit, represented these two sets of grantees, and the whole case turned upon the validity of the second statute. Chief Justice Marshall delivered the opinion of the court. After defining the word "contract," and stating the distinction between executory and executed agreements, he proceeds: 2 "Since then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the general term contract,' without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seized of their former estates not16 Cranch's R. 87. 2 Ibid. 137. |