as if that branch of the clause had been omitted. But there is too much reason to fear that such an expedient has since been resorted to, or, rather, that a successful attempt has been made to elude this wholesome restriction.

The Legislature of Kentucky, in the year 1820, passed an act establishing a bank, and constituting the president and directors a corporation, with a capital consisting of all moneys paid into the treasury of the state for the sale of its vacant lands, and other property. The bank was authorized to receive money on deposite, to make loans, and issue promissory notes; and was the exclusive property of the state. In relation to this bank, thus constituted, with such a capital, and so owned, it was held that its notes thus issued were not bills of credit within the meaning of the Constitution.* It was admitted, indeed, that to constitute a bill of credit within the purview of the prohibition, it must be issued by a state, on the faith of a state, and designed to circulate as money; that the paper which it issues must circulate on the credit of the state, and be so received and used in the ordinary business of life; that the persons issuing it must have power to bind the state; they must act as agents, and, of course, not incur any personal responsibility, nor impart as individuals any credit to the paper. These were admitted to be the leading characteristics of a bill of credit, and yet the notes issued by this "Bank of the Commonwealth of Kentucky"-for such, moreover, was its title-were held not to be bills of credit within the meaning of the Federal Constitution. Before we assent to this. conclusion, let us bring the question to a test, I will not say of common sense, but of the characteristics

* 11 Peters, 257.

specified by the court. These shall serve as interrogatories, to which answers shall be drawn from its own statement of the facts.

1st. Were the notes of this bank issued by the state?

Answer. The bank was established by the state: its capital consisted of the funds of the state, and it was authorized by the state to issue its notes.

2d. Did its paper circulate on the credit of the state?

Ans. Its issues were founded on its capital, which was the property of the state.

3d. Had the persons who issued its notes authority to bind the state?

Ans. The bank was the property of the state, who named or appointed its directors in the act of incorporation.

4th. Did the directors or officers of the bank act as agents of the state, without incurring personal responsibility?

Ans. Of course. There was no other stockholder than the state; and they could not have acted on. any other responsibility to the public than that of the state, as they were not made personally responsible as principals by the act of incorporation.

5th. Did the directors or officers of the bank impart any credit, as individuals, to the notes of the bank?

Ans. No other than is imparted by the signatures of the officers of every other bank. It is to the capital of the bank, and to the responsibility of the stockholders, that the public look for security, and not to the persons whose official signatures are affixed to its

notes.

If there be any "other matter or thing" which may be put by way of general interrogatory, the answer

is obvious: "Qui facit per alium, facit per se." In short, if a state wishes to evade the Constitution and emit bills of credit, it has merely to incorporate its public officers, or other agents, as a bank, and thus render a prohibition intended to prevent a recurrence of those evils, which had been found from experience to attend the practice, a dead letter.*

3d. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social contract, and to every principle of sound legislation. The two former are expressly prohibited to Congress by the Federal Constitution, and to some of the state legislatures, by declarations of rights prefixed to their constitutions. The framers of the Federal compact were, nevertheless, admonished by their own experience of the necessity of additional bulwarks in favour of personal security and private rights; and the experience of their successors has shown that, in imposing these restrictions, the Convention maintained its character for strict integrity, high moral sense, and sound prac

tical wisdom.

Bills of attainder are such special acts of the Legislature as inflict capital punishment upon persons whom they declare to be guilty of high offences, without trial or conviction in the ordinary course of judicial proceedings. They have generally been confined to cases of treason, and have never been resorted to but in times of internal commotion and arbitrary misgovernment. If the bill inflict a milder punishment than death, it is called a bill of pains and penalties; but, in the sense of the Constitution, bills of

*The decision in this case was made after the death of Chiefjustice Marshall, and the opinion of the court delivered by Mr. Justice M Lean; Mr. Justice Thompson concurring, and Mr. Justice Story dissenting.

A A

attainder include bills of pains and penalties, as the former affect the life of an individual, or may confiscate his property, or both.

may

Ex post facto laws are often supposed to signify all laws having a retroactive operation; but their technical meaning is confined to such as render criminal an act done before the law was passed, which was then innocent; or to such as aggravate the offence, or render it more criminal than it was when committed; or such as inflict a greater punishment than the law annexed to the crime when perpetrated; or such as alter the rules of evidence, and admit different, or less testimony than was required at the time the offence was committed to convict the offender. With more comprehensive brevity, these laws have been defined by Chief-justice Marshall as "those which render an act punishable in a manner in which it was not punishable when committed;" and this definition includes both laws inflicting personal or pecuniary penalties for acts before innocent, and laws passed after the commission of an unlawful act, which enhance its guilt or aggravate its punishment.

4th. A similar restriction with regard to bills of attainder and ex post facto laws is imposed by the Constitution on Congress, as well as upon the state legislatures; but not with regard to laws impairing the obligation of contracts, which are also retrospective in their operation, and equally inconsistent with sound legislation, and the fundamental principles of the social compact.

The reason of this difference is obvious. By contracts, in the sense of the Constitution, we are to understand every executed agreement, whether between individuals, or between individuals and a state, by which a right is vested; and also every executory agreement which confers a right of action, or creates

a binding obligation in relation to subjects of a valuable nature, which may be asserted in a court of justice; but it does not comprehend the political relations between a government and its citizens. The power possessed by a State Legislature to which everything not expressly reserved is granted, and the temptations to abuse that power, render express restrictions, if not absolutely necessary, at least prudent and useful; but the National Legislature has no power to interfere with contracts, except where it is expressly given to it. By the obligation of contracts, in the meaning and intendment of the Constitution, is understood not merely the moral, but the legal obligation; and in this sense a system of bankruptcy impairs the obligation of contracts, when it releases the party from the necessity of performing them; but Congress is expressly invested with this power in regard to bankruptcies, as an enumerated, and not as an implied power, and in no other form can it impair the obligation of a contract.

This prohibition in regard to the states extensively and deeply affects their legislative authority; and there is no part of the Federal Constitution that has given rise to more various and able discussions, or to more obstinate and protracted litigation. A compact between two states, or a grant from a state (which amounts to a contract) to individuals, is as much protected by it as a grant from one individual to another, and the state is as effectually inhibited from impairing its own contracts, or those to which it is a party, as it is from impairing the obligation of a contract between two individuals. The clause

under consideration was first brought into direct judicial discussion by an act of the Legislature of Georgia, passed in the year 1795. This act authorized the sale of a large tract of wild land, in what