obligation extended to future acquisitions; and to release them from being liable, impaired the obligation of the contract. There was a distinction in the nature of things, between the obligation of a contract, and the remedy to enforce that obligation, and the latter might be modified, as the wisdom of the legislature should direct. But the constitution intended 421 to restore and preserve public *confidence completely. It intended to establish a great principle, that contracts should be inviolable. The case in which this decision was made was one in which the contract was existing when the law was passed; and the court said that their opinion was confined to the case. A distinction has been taken between the case of a contract made before, and one made after, the passing of the act. It was taken by the Supreme Court of New York, in Mather v. Bush, (a) and by the chief justice of Massachusetts, in Blanchard v. Russell, (b) and was relied on as a sound distinction by the Court of Chancery of New York, in Hicks v. Hotchkiss. (c) The doctrine of these cases is, that an insolvent act in force when the contract was made, did not, in the sense of the constitution, impair the obligation of that contract, because parties to a contract have reference to the existing laws of the country where it is made, and are presumed to contract in reference to those laws. It is an implied condition of every contract, that the party shall be absolved from its performance if the event takes place which the existing law declares shall dispense with the performance. The decision in Sturges v. Crowninshield is supposed to be consistent with that distinction, when it establishes the principle, that an insolvent act, discharging a debtor from his contract existing when the law passed, so that his future acquisitions could not be touched, is unconstitutional, and the discharge obtained under it void. But the Supreme Court of the United States, in M’Millan v. M'Neill, (d) went a step further, and held, that a discharge under a state insolvent law existing when the debt was contracted, was equally a law impairing the obligation of contracts, and (a) 16 Johns. Rep. 233. (b) 13 Mass. Rep. 1. 422 equally within the principle declared in Sturges v. Crowninshield. This was a discharge under the insolvent law of a different government from that in which the contract was made. It remains yet to be settled, whether it be lawful for a state to pass an insolvent law, which shall be effectual to discharge the debtor from a debt contracted after the passing of the act, and contracted within the state making the law. The general language of the court would seem to reach even this case; but the facts in these cases decided do not cover this ground, and the cases decided are not authority to that extent. (a) It will be perceived, that the power of the states over this subject is, at all events, exceedingly narrowed and cut down; and as the decisions now stand, the debt must have been contracted after the passing of the act, and the debt must have been contracted within the state, and between citizens of the state, or else a discharge will not extinguish the remedy against the future property of the debtor. (b) (a) In the case of Bronson v. Kinzie, 1 How. U. S. 311, it was conceded, that contracts made subsequent to the stay-laws of Illinois, were to be governed by them, if made to be executed in the state; for every state may prescribe the legal and equitable obligations of a contract to be made and executed within it. (b) In Smith v. Parsons, 1 Hammond's Ohio Rep. 107, and in Hempstead v. Read, 6 Conn. Rep. 480, the power of the states over contracts was understood and declared to be confined within the precise limits mentioned in the text. See, also, vol. ii. pp. 392, 393. The result of the decisions, says Judge Story, (3 Com. Const. U. S. 15, 256,) is, that state insolvent laws lawfully apply, (1.) to all contracts made within the state between citizens of the state; (2.) they do not apply to contracts made within the state, between a citizen of the state and a citizen of another state; (3.) nor to contracts not made within the state; and the contracts so protected, are equally so from prospective as well as retrospective legislation. But if a creditor out of the state voluntarily makes himself a party to the proceedings under the insolvent law of the state, and accepts a dividend, he is bound by his own act, and is deemed to have waived his extra-territorial immunity. In Satterlee v. Matthewson, 2 Peters's U. S. Rep. 380, the Supreme Court of the United States held, that no part of the constitution of the United States applied to a state law which divested rights which were vested by law in an 1 Upon a review of the cases decided in the Supreme Court of the United States, it is the opinion of the court in Marsh v. Putnam, 3 Gray, 551, that the result of the decisions is too broadly stated by Mr. Justice Story. See pp. 563, 564. In this case it is held that "a certificate of discharge under the insolvent laws of Massachusetts is a bar to an action on a contract between two citizens of that state, though made and to be performed in another state." See, too, Scribner v. Fisher, 2 Gray, 43. Cessio bo norum. And while on this point, it may not be amiss to observe, that the cessio bonorum of the Roman law, introduced by Julius Cæsar, and which prevails at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, nor exempt the future acquisitions of the debtor from execution for the debt. (a) The English statute of 32 Geo. II., commonly called the lords' act, and the more recent English statutes of 33 Geo. III., 1 Geo. IV., 3 Geo. IV. and 5 Geo. IV., have gone no further than to discharge the debtor's per*423 son; and it may be laid down as the law of Germany, France, Holland, Scotland, England, &c., that insolvent laws are not more extensive in their operation than the cessio bonorum of the civil law. (b) In many parts of Germany, as we are informed by Huberus and Heineccius, (c) a cessio bonorum does not even work a discharge of the debtor's person, and much less of his future property. The cession under the Roman law did not extend to protect the debtor from personal responsibility, for penalties accruing on the commission of individual, provided its effects be not to impair the obligation of a contract. It was further held, that retrospective laws were not within the constitutional prohibition, provided they did not impair the obligation of contracts, or partake of the character of ex post facto laws. It has also been decided that a state government may tax state banks, eo nomine, at discretion, and that it would not be a violation of the contracts creating the banks, for no contract was to be implied not to impose such a tax. Providence Bank v. Billings, 4 Peters's U. S. 514. It has been adjudged in Louisiana and Mississippi, that a state law requiring a bank to receive at par its own notes, though under par in the market, in payment of debts due to it, is constitutional. 12 Rob. Louis. R. 125. 3 Smedes & Marshall, 665.1 (a) According to the Spanish law, (Partidas, 1. 3, tit. 15, part 5,) the debtor's property, acquired subsequently to the cessio bonorum, was only liable so far as it exceeded the amount necessary for his support. But the law of Louisiana contains no such exception. 3 Martin's Rep. 588. 4 Ibid. 292, 293. (b) Code, 7, 71, 1. Dig. 42, 3, 4, and 6. Voet, ad Pand. 42, 3, 8. Heineccii, Opera, tom. v. p. 620; tom. vi. pp. 384, 387. Code de Commerce, No. 568. Répertoire Universel et Raisonné de Jurisprudence, par Merlin, tit. Cession de Biens. Esprit des Loix, tom. i. 114. 2 Bell's Com. 580-597. 16 Johns. Rep. 244, note. (c) Hub. Prælec. tom. ii. 1454. Heinec. Elem. Jur. Civ. secund. ord. Pand. pp. 6, 1, 42, tit. 3. Elem. Jur. Ger. lib. 2, tit. 13, sec. 387. 1 A statute, making the stockholders liable for the debts of the corporation, is valid in respect to debts subsequently contracted, and binding on one becoming a member after the passage of the act. Stanley v. Stanley, 26 Maine R. 191. crimes. Si in are non habeat, in pelle luit. But in Germany the cessio bonorum has the severe operation of depriving the insolvent of his remedy for a personal trespass, committed prior to the cession, so far as pecuniary compensation is in question. (a) (5.) No state can pass naturalization laws. No state can pass By the constitution of the United States, congress naturalizahave power to establish a uniform rule of naturaliza- tion laws. tion. It was held, in the Circuit Court of the United States, in Philadelphia, in 1792, in Collet v. Collet, (b) that the state governments still enjoy a concurrent authority with the United States upon the subject of naturalization, and that, though they could not contravene the rule established by congress, or “ exclude those citizens who had been made such by that rule, yet that they might adopt citizens upon easier terms than those which congress may deem it expedient to impose." But though this decision was made by two of the judges of the Supreme Court, with the concurrence of the district judge of Pennsylvania, it is obvious that this opinion was hastily and inconsider *424 ately declared. If the construction given to the constitution in this case was the true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the states individually of the power of naturalizing aliens according to their own will and pleasure, and thereby giving them the rights and privileges of citizens in every other state. If each state can naturalize upon one year's residence, when the act of congress requires five, of what use is the act of congress, and how does it become a uniform rule? This decision of the Circuit Court may be considered, as in effect, overruled. In the same Circuit Court, in 1797, Judge Iredell intimated, that if the question had not previously occurred, he should be disposed to think that the power of naturalization operated exclusively, as soon as it was exercised by congress. (c) And, in the Circuit Court of Pennsylvania, in 1814, it was the opinion of Judge Washington, that the power (a) Voet, ad Pand. 42, 3, 10. (c) United States v. Villato, 2 Dallas, 370. (b) 2 Dallas, 294. to naturalize was exclusively vested in congress. (a) Afterwards, in Chirac v. Chirac, (b) the chief justice of the United States observed, that it certainly ought not to be controverted, that the power of naturalization was vested exclusively in congress. In Houston v. Moore, (c) Judge Story mentioned the power in congress to establish a uniform rule of naturalization, as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the states. The weight of authority, as well as of reason, may, therefore, be considered as clearly in favor of this latter construction. ⚫425 *(6.) The states cannot impose a tax on the national bank, or its branches, or on national stock. No state national bank or The inability of the states to impede or control, by can tax a taxation or otherwise, the lawful institutions and measures of the national government, was largely discussed stock. and strongly declared in the case of M'Culloch v. The State of Maryland. (d) In that case, the state of Maryland had imposed a tax upon the Branch Bank of the United States established in that state, and, assuming the bank to be constitutionally created and lawfully established in that state, the question arose on the validity of the state tax. It was adjudged that the state governments had no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress, to carry into effect the powers vested in the national government. To define and settle the bounds of the restriction of the power of taxation in the states, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking; but it appears to have been, in this instance, most wisely and most successfully performed. It was declared by the court, that it was not to be denied that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount (a) Golden v. Prince, 3 Wash. Cir. Rep. 313. (c) 5 Wheaton, 49. (b) 2 Wheaton, 269. (d) 4 Wheaton, 316. |