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To revert to the consideration of the obliga- | does not appear to be any obscurity in the tion of the contract, what does it require the phrase, "impairing the obligation of concourt to do? What judgment to pronounce? tracts." And, unless there is obscurity or laI have said it is the duty imposed upon the tent ambiguity, it is a rule that you cannot go party to perform what he has stipulated. It is out of the instrument for explanation. And it argued on the other side, that the creditor ought is a well settled rule of evidence, that what to submit to the insolvent law of the State of may have passed pending negotiations for a which the debtor was a citizen when the con- contract does not form a part of the contract tract was made, as he must have contemplated finally agreed upon and deliberately executed. the possibility that the debtor would avail him- And this rule applies with great force to an self of this law. But before insolvency hap-instrument of so grave and solemn a character pens, the expectation of the creditor, and of as the Constitution of the United States. the debtor, too, if he is honest, is, that the But the debates do not seem to furnish anydebt will be paid without default. It is not thing that militates with the construction which probable that the remedy is in the contempla- we have given to the phrase in question. It is tion of the parties. It is not strictly a part of said that they furnish evidence that none but the contract. It is a legal right arising after retrospective laws were intended to be prohibbreach or default, secured by the constitutions ited. At page 1443 of Volume III. of the Madand the laws. It is not necessary to be contem-ison papers, it is found that "Mr. King moved plated at the time when the contract is made, to add, in the words used in the ordinance of in order to be appropriated after the contract Congress establishing new States, a prohibition is broken. It may be resorted to when there on the States to interfere in private contracts." is occasion for its use. And as between the Upon which there was debate, which see; Mr. remedy afforded by the State and that by the Morris and Colonel Mason being against, and United States, the latter may be esteemed su- Mr. Sherman, Mr. Wilson, and Mr. Madison perior and preferable, and as the creditor has in favor of the motion. And at page 1444, the right of election, it may be presumed, that Mr. Wilson stated, "The answer to these obif he contemplated any remedy at the time of jections is, that retrospective interferences entering into the contract, it was that which he only are to be prohibited." Whereupon, "Mr. has elected. It is in accordance with the rule Rutledge moved, instead of Mr. King's motion, of the common law, that of two concurrent ju- to insert, 'nor pass bills of attainder, nor rerisdictions a party may elect the superior one. trospective laws;'" upon which seven States The court are now to render judgment. The voted in the affirmative and three in the negaobligation of the debtor as a party to the con- tive. At page 1450, Mr. Dickinson mentioned tract is clearly seen and admitted. It is to pay that ex post facto related to criminal cases only; a certain sum in gold or silver coin. But the that some further provision was necessary to State, by her act, interposes a release of the restrain the States from retrospective laws in debtor, against the will of the creditor, and civil cases. At page 1552, we find the words would thereby bar a judgment corresponding "altering" or "impairing" the obligations of with the debtor's obligation. Does not the Con-contracts introduced into the tenth section of stitution mean, by the obligation of a contract, art. 1. At page 1581, we find the first clause the obligation entire and full, and in all the of art. 1, sec. 10, altered so as to read as it now integrity and with all the value that was given stands in *the Constitution. And there [*304 to it by the terms of the contract? We answer does not appear to have been any debate upon in the affirmative. For if the court gave judg- this section in this form. ment for the value of the obligation after the It is stated that Mr. Gerry entered into obState law has acted on it, and after the release servations inculcating the importance of public shall have been applied, then it suffers exactly faith, and the propriety of the restraint put on what is prohibited by the Constitution. It suf- the States from impairing the obligation of fers the law to impair the obligation. And so contracts, and alleging that Congress ought to every obligation might be impaired to any ex-be laid under the like prohibitions. He made 303*] tent, or wholly *destroyed. The judg- a motion to that effect. He was not seconded. ment is a record of the obligation, or more exactly of the duty which the Constitution and the law imposes upon the debtor in order that he discharge his obligation.

It would appear, therefore, that in cases in which a court of common law of the United States has jurisdiction over a commercial contract, valid by the law of the State or States where made, a State insolvent law cannot be applied to impair the obligation of the contract in suit. That the forum has law of its own, and that this is the law to be administered, in order to determine and adjudge what is the obligation of the contract.

Now, it is a sufficient answer to all that may be inferred from the remark of Mr. Wilson, or any other member of the convention, that the phrase "retrospective laws" was not finally adopted, although it appears to have been suggested. And in the absence of all debate or explanation of the phrase, "or law impairing the obligation of contracts, we are left to construe it according to its plain meaning. It is said that it could not be meant to restrain the States from passing bankrupt or insolvent laws, which the framers of the Constitution must have approved, inasmuch as they gave Congress power to pass a uniform law upon It has been said, that, by reason of the doubts the subject of bankruptcies throughout the in regard to the meaning of the Constitution States. But if the States were qualified to pass upon this question, resort must be had to ex-acceptable laws on this subject, what need was ternal evidence, to the history of the times

prior to the formation of the Constitution, and 1.—In a note it is said that in the printed jourto the debates of the convention had upon that nal this was "ex post facto.' If the debates were instrument. In the view we have taken, thereupon this phrase, there is no inference to be made as to the meaning of terms in question.

there of a law of Congress? The inference is the rather, that, while it admitted the power of States to pass such laws, that either the character or effect of them was objectionable.

It is admitted that retrospective laws were intended to be prohibited, as impairing the obligation of contracts. But insolvent and bankrupt laws are usually retrospective; therefore they could not have been intended to be wholly excluded from the prohibition.

tensive than that of 1774. From 1805 to the time when this court decided the case of Sturges v. Crowninshield, no doubt existed of the constitutionality of these laws, either as respecting debts or debtors. The bankrupt law of the United States passed in 1800 recognized State laws. The decision in Sturges v. Crowninshield took the States and the profession by surprise. It was a matter of astonishment that up to that time the States had all been wrong. The fair meaning of the clause, as to impair- But this surprise was lessened when the case ing the obligation of contracts, is, that the pro- came to be discussed afterwards by the bench hibition or restraint was laid upon the States, as well as the bar, in Ogden v. Saunders. [Mr. and took effect from the moment the Constitu- | Johnson here went into a minute examination tion was adopted, so that it was not afterwards of the opinions of the judges in that and subcompetent for any State to pass any law which sequent cases.] might have the effect to impair the obligation of any contract to be thereafter made.

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The doctrine cannot be correct, that Maryland law means one thing when applied to her As to the distinction between the right and own citizens, and another thing when applied the remedy, it is proper when used to distin- to other persons. The Constitution of the Unitguish what is stipulated in the contract, sup-ed States is obligatory within a State itself, as posing it to be performed without breach, and what the law will compel the delinquent party to do in consequence of his failure to do what he has stipulated. But the remedy is the fruit of the contract, and it is the whole value of the obligation of the delinquent party. This obligation continues as an obligation of the contract at the time of the judgment, and afterwards until satisfaction, or until the judgment dies by lapse of time.

It is difficult to decide in every case how far the remedy may be modified without impairing the obligation. The remedy is given by the United States, although it be adopted from the laws and practice of the States respectively. The only general rule seems to be to distinguish between form and substance. The remedy cannot be wholly taken away, nor essen305*] tially impaired. See Green v. Biddle, *8 Wheat. 1-75; Bronson v. Kinzie, 1 How. 316; McCracken v. Hayward, 2 Ibid. 608.

It may be dimicult, in strict reasoning, to prove that imprisonment is only a form of remedy. But as gold or silver is the only thing that can constitutionally satisfy the debt, and as an incarcerated body cannot be sold or put into slavery, it seems to be no direct remedy at all, and as a punishment it is unjust against an honest man.

Upon the whole, the judgment ought to be affirmed, and the decisions rest undisturbed.

Mr. R. Johnson, for the plaintiff in error, in reply to Mr. Hinkley, divided the subject into the four following heads:

1. What points have been decided by this

court.

2. How far the points decided bear upon the present case.

3. Under all the circumstances of the opinions given, whether it is not justifiable and proper to look into those opinions.

4. That the law of the case was with the plaintiff in error.

The debtor was a citizen of Maryland at the time of contracting the debt, and at the time of his discharge. Anterior to the Revolution, the State had bankrupt laws which discharged | the debt, as well as the person of the debtor. Act of 1774. After the Revolution, special acts were passed from time to time, all of which dischargeu the debts themselves. In 1805, a general system was established, more ex

well as between citizens of different States. The protection which it extends over all extends to persons in the same State, and if such protection prevents the claims of a foreign creditor from being destroyed by an insolvent law, it must equally secure the claims of a domestic creditor. The result will be, that such laws must be entirely swept away, even as regards the internal concerns of a State; in which her own citizens alone have an interest. But this conclusion is not likely to be *adopted. [*306 The power of a State to pass such laws is not denied. 4 Wheat. 136; 12 Ibid. 277.

Contemporaneous construction has acquiesced in this power. The Federalist does not deny it. State judiciaries acted on it. No convention where the Constitution was discussed ever thought it an objection that this power was taken away from the States. Millions have been distributed by its exercise. As an attribute of sovereignty, a government cannot get along without it. Such laws are known to all the globe where commerce is known. The hazards of life and business make it certain that some men must be ruined. At first, these laws were passed solely for the benefit of the creditors, and bankrupts were punished as guilty. But a more benign spirit at length taught that men might become poor and bankrupt from misfortune as well as crime. The framers of the Constitution did not hold it to be immoral to discharge debtors, because they gave the power of doing so to the United States. The fortysecond number of the Federalist says, that the expediency of such a power is not likely to be drawn into question. Can the Constitution be made to say that State laws are unjust, and that the same laws by the United States are not unjust? Or does it rather mean, that under the operation of State laws a sufficient amount of good could not be obtained? State laws cease with their limits. A debtor might be free within his own State, but not beyond it. Giving all possible effect to the Maryland insolvent laws within her limits, yet if a bankrupt debtor went beyond, he was unprotected; and the Constitution must have intended to supply this deficiency, by giving to Congress power to pass a law which should protect him everywhere. But there is nothing in this hostile to State insolvent laws. On the contrary, it is recognizing them and extending their beneficial influence.

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The objection is, that there is no uniform system; not that the whole system should be broken up and destroyed. There are higher moral obligations than those of debtor and creditor. It is the duty of a man to live for the happiness of his parent or child, and a wise government will place no insuperable barrier in his way to debar him from fulfilling these duties. Upon this ground, and under the power of a State to control remedies at law, tools, etc., are exempted from surrender. But upon the theory of the opposite counsel, this humane provision must be swept off, because he says the law of a contract is to pay to the uttermost farthing. But the laws of humanity will not permit such utter ruin, nor did the Constitution intend it. The forty-fourth number of the Federalist, page 192, by Mr. Madison, says, that bills of attainder and ex post facto laws are contrary to the principles of the social compact everywhere, and therefore the power to pass them is denied. But if bankrupt laws had been considered as falling within this category, would the power to pass them have been expressly given to the United States?

307*] *Mr. Justice Grier delivered the opinion of the court:

This case came before us by a writ of error to the Circuit Court of the United States for the Maryland District.

Moffat & Curtis, merchants in New York, sold goods to Cook, who resided in Baltimore. On a settlement of their accounts, Cook transmitted his notes to his attorney in New York, who delivered them to the defendants in error. After the notes fell due, Cook applied for and obtained the benefit of the insolvent laws of Maryland. By these laws the debtor, on surrender of his property, is discharged not only from imprisonment, but from his previous debts. On the trial of this case in the Circuit Court, the plaintiff in error pleaded this discharge, insisting "that the contract was to be performed in Maryland, and governed by the laws of Maryland in existence at the time it was made; and that, therefore, his discharge under her laws was a good defense to the action." The Circuit Court gave judgment for the plaintiffs, and the defendant prosecuted this writ of error. That the contract declared on in this case was to be performed in Maryland, and governed by her laws, is a position which cannot be successfully maintained, and was, therefore, very properly abandoned on the argument here. For, although the notes purport to have been made at Baltimore, they were delivered in New York, in payment of goods purchased there, and of course were payable there and governed by the laws of that place. See Boyle v. Zacharie & Turner, 6 Peters, 635; Story's Confl. of Laws, sec. 287.

The only question, then, to be decided at present, is, whether the bankrupt law of MaryÎand can operate to discharge the plaintiff in error from a contract made by him in New York, with citizens of that State.

In support of the affirmation of this proposition, it has been contended—

1st. "That the State of Maryland having power to enact a bankrupt law, it follows as a necessary consequence that such law must control the decisions of her own forums."

2d. "That the courts of the United States are as much bound to administer the laws of each State as its own courts."

It has also been contended that the case of Ogden v. Saunders, while it admits the first proposition, denies the second, and that this court ought to reconsider the whole subject, and establish it on principles more consistent. But we are of opinion that the case of Ogden v. Saunders is not subject to the imputation of establishing such an anomalous doctrine, although such an inference might be drawn from some remarks of the learned judge who delivered the opinion of the court in that case; the question, whether a State court would be justifiable in giving effect to a bankrupt discharge which the courts of the United States *would declare invalid, was not before [*308 the court, and was therefore not decided. Nor has such a decision ever been made by this court.

The Constitution of the United States is the supreme law of the land, and binds every forum, whether it derives its authority from a State or from the United States. When this court has declared State legislation to be in conflict with the Constitution of the United States, and therefore void, the State tribunals are bound to conform to such decision. A bankrupt law which comes within this category cannot be pleaded as a discharge. even in the forums of the State which enacted it.

It is true, that as between the several States of this Union, their respective bankrupt laws, like those of foreign states, can have no effect in any forum beyond their respective limits, unless by comity. But it is not a necessary consequence that State courts can treat this subject as if the States were wholly foreign to each other, and inflict her bankrupt laws on contracts and persons not within her limits.

It is because the States are not foreign to each other in every respect, and because of the restraint on their powers of legislation on the subject of contracts, and the conflict of rights arising from the peculiar relations which our citizens bear to each other, as members of a common government, and yet citizens of independent States, that doctrines have been established on this subject apparently inconsistent and anomalous.

Accordingly, we find that when, in the case of Sturges v. Crowninshield, this court decided that a State has authority to pass a bankrupt law, provided there be no act of Congress in force to establish an uniform system of bankruptcy," it was nevertheless considered to be subject to the further condition. "that such law should not impair the obligation of contracts within the meaning of the Constitution of the United States, art. 1, sec. 10.”

It followed, as a corollary from this modification and restraint of the power of the State to pass such laws, that they could have no effect on contracts made before their enactment, or beyond their territory. Hence, at the same term, the court unanimously decided, in the case of McMillan v. McNeil, that a contract made in South Carolina was not affected by a bankrupt discharge in Louisiana, under a law made antecedently to the contract, although the suit was brought in the Circuit Court of the United States for Louisiana. That case was

precisely similar in au respects to the one be

fore us.

In the Mechanics' Bank v. Smith, a discharge under a Pennsylvania bankrupt law was held not to affect a contract between citizens of that State, made previous to the passage of the law. Next followed the case of Ogden v. Saunders, which has been made the subject of so much criticism. In that case, Saunders, a citizen of New York, drew bills on Ogden in New York, 309*] which were accepted and protested there. Ogden was afterwards discharged under the insolvent laws of New York, passed previous to the contract of acceptance, and pleaded this discharge to an action brought against him in the District Court for Louisiana. A majority of the court there decided—

1st. "That a bankrupt or insolvent law of any State, which discharges the person of the debtor and his future acquisitions, is not a law impairing the obligation of contracts, so far as it respects debts subsequent to the passage of such law."

2d. "That a certificate of discharge under such a law cannot be pleaded in bar of an action brought by a citizen of another State."

We do not deem it necessary, on the present occasion, either to vindicate the consistency of the propositions ruled in that case with the reasons on which it appears to have been founded, or to discuss anew the many vexed questions mooted therein, and on which the court were so much divided. It may be remarked, however, that the members of the court who were in the minority in the final decision of it fully assented to the correctness of the decision of McMillan v. McNeil, which rules the present case.

The case of Boyle v. Zacharie, 6 Peters, 635, is also precisely parallel with the present. The contract declared on was made in New Orleans; the defendant resided in Baltimore, and, on suit brought in the Circuit Court for Maryland, pleaded his discharge under the Maryland insolvent laws, and his plea was overruled.

So far, then, as respects the point now before us, this court appear to have always been unanimous; and in order to meet the views of the learned counsel for the plaintiff in error, we should be compelled to overrule every case heretofore decided on this most difficult and intricate subject. But as the questions involved in it have already rceived the most ample investigation by the most eminent and profound jurists, both of the bar and the bench; it may be well doubted whether further discussion will shed more light, or produce a more satisfactory or unanimous decision.

So far, at least, as the present case is concerned, the court do not think it necessary or prudent to depart from the safe maxim of stare decisis.

The judgment of the Circuit Court is therefore affirmed.

Mr. Chief Justice Taney:

I gave the judgment in this case in the Fourth Circuit, because, sitting in an inferior tribunal, I felt myself bound to follow the decisions of this court, although I could not assent to the correctness of the reasoning upon which they are founded. And I acquiesce in the judg

ment now given, since a majority of the justices have determined not to consider the question upon the operation of the insolvent laws of the States as altogether an open one; and undoubtedly, according to the decisions heretofore given, the judgment of the Cir- [*310 cuit Court ought to be affirmed. But, in my opinion, these decisions are not in harmony with some of the principles adopted and sanctioned by this court, and therefore ought not to be followed.

The opinion delivered by Judge Johnson in the case of Ogden v. Saunders was afterwards concurred in and adopted by a majority of the court in the case of Boyle v. Zacharie & Turner, 6 Peters, 643. And the subject has not since been brought to the attention of this court until the case now under consideration came before it.

The opinion of Judge Johnson is stated by him in the following words:

"The propositions which I have endeavored to maintain, in the opinion which I have delivered, are these:

"1. That the power given to the United States to pass bankrupt laws is not exclusive.

"2. That the fair and ordinary exercise of that power by the States does not necessarily involve a violation of the obligation of contracts, multo fortiori of posterior contracts.

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"3. But when in the exercise of that power the States pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other States, there arises a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other States, and with the Constitution of the United States."

And afterwards, in delivering the opinion of the court in the case of Boyle v. Zacharie & Turner, Mr. Justice Story says: "The ultimate opinion delivered by Mr. Justice Johnson in the case of Ogden v. Saunders, 12 Wheat. 213, 358, was concurred in and adopted by three judges who were in the minority upon the gen eral question of the constitutionality of State insolvent laws, so largely discussed in that case. It is proper to make this remark, in order to remove an erroneous impression of the bar, that it was his single opinion, and not of the three other judges who concurred in the judgment. So far, then, as decisions upon the subject of State insolvent laws have been made by this court, they are to be deemed final and conclusive."

To the first two propositions maintained in the opinion of Judge Johnson, thus sanctioned and adopted, I entirely assent. But when the two clauses in the Constitution therein referred to are held to be no restriction, express or impied, upon the power of the States to pass bankrupt laws, I cannot see how such laws can be regarded as a violation of the Constitution of the United States upon the grounds stated in the third proposition. For bankrupt laws, in the nature of things, can have no force or operation beyond the limits of the State or nation by which they are passed, except by the comity of other States or nations. And it is difficult, *therefore, to perceive how [*311 the bankrupt law of a State can be incompati

Mr. Justice Daniel:

ble with the rights of other States, or come in-, disregard the inhibitions of the federal Conto collision with the judicial powers granted to stitution, there is no limit to the exercise of its the general government. According to estab-powers. It has only to pass an act, however lished principles of jurisprudence, such laws repugnant to the Constitution, and, according have always been held valid and binding with- to the doctrine advanced, it operates as a law in the territorial limits of the State by which upon all subsequent transactions by a presumed they are passed, although they may act upon assent to its validity. This principle, if carried contracts made in another country, or upon the out, would effectually subvert all restriction citizens of another nation; and they have never on the exercise of State powers in the federal been considered, on that account, as an in- Constitution. fringement upon the rights of other nations or their citizens. But beyond the limits of the State they have no force, except such as may In the decision just pronounced, so far as it be given to them by comity. If, therefore, a affirms the judgment of the Circuit Court, I State may pass a bankrupt law in the fair and readily concur. I concur, too, in the opinion of ordinary exercise of such a power, it would the majority of the court, so far as it maintains seem to follow, that it would be valid and the position that the contracts sued upon in binding, not only upon the courts of the State, this case, being essentially New York contracts, but also upon the courts of the United States could not be discharged by the insolvent laws when sitting in the State, and administering of Maryland. But to any and every extent to justice according to its laws; and that in the which it may have been intended to assume tribunals of other States it should receive the that these contracts, if properly Maryland conrespect and comity which the established usages tracts-that is, if they had been made in Maryof civilized nations extend to the bankrupt | land, and designed to have been there performed laws of each other. But how far this comity-should not have been discharged by the in'should be extended would be exclusively a question for each State to decide for itself, by its own proper tribunals; and there is no clause in the Constitution which authorizes the courts of the United States to control or direct them in this particular. It would be a very unsafe mode of construing the Constitution of the United States, to infer such a power in the tribunals of the general government, merely from the general frame of the government and the grant to it of judicial power.

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solvent laws of that State, enacted and in force prior to the contracts themselves, I am constrained to express my entire dissent. I hold it to be invariably just, that the law of the place where a contract is made, or at which it is to be performed, enters essentially into and becomes a part of such contract; and should govern its construction, whenever a departure from that law is not so stipulated as to establish a different rule by the contract itself. This principle of interpretation I deem to be in accordance I propose, however, merely to state my opin- with the doctrine of the writers upon the comion, not to argue the question. For since the ity of nations, as we find it extensively collated year 1819, when the validity of these State by the late Justice Story in his learned relaws was first brought into question in this searches upon the Conflict of Laws. This rule, court, so much discussion has taken place, and moreover, I hold to be in no wise in conflict such conflicting opinions have been continually with the eighth section of the first article of the found to exist, that I cannot hope that any Constitution of the United States, conferring useful result will be attained by further argu-upon Congress the power to establish uniform ment here. I content myself, therefore, with laws on the subject of bankruptcy; nor with thus briefly stating the principles by which I the tenth section of the same article, which prothink the question ought to be decided, and re-hibits to the States the power of enacting laws ferring to Story's Conflict of Laws, edit. of 1841, sec. 335, and several of the sections immediately following, where the decisions in foreign courts of justice, as well as in our own, upon this subject, are collected together and arranged, and commented on with the usual learning and ability of that distinguished jurist.

Mr. Justice McLean:

impairing the obligation of contracts. On the contrary, it recognizes in the federal government, and in the governments of the States, the correct and complete distribution of powers assigned to them respectively by the Constitution.

By a reasonable rule of interpretation, and by repeated adjudications of this court, it is held, that the mere investiture of Congress with the power to pass laws on the subject of I assent to the affirmation of the judgment bankruptcy would not, ipso facto, devest such a of the Circuit Court. How an act which im- power out of the States. The. withdrawing of pairs the obligations of contracts can be con- the power from the States would be dependent sidered constitutional as regards subsequent upon *an actual exercise by Congress^ [*313 contracts, and not prior ones, is not within my of the power conferred by the Constitution, comprehension. The notion that such a law and upon the incompatibility between the becomes a part of the contract is in my judg- modes and extent of its exercise with an exerment fallacious. Whatever constitutes a part tion of authority on the same subject by the of the contract is inseparably connected with | States. The mere grant of power to Congress, 312*] *and governs it, wherever it may be whilst that power remained dormant, would enforced. All other forms and modes of pro-leave the States in possession of whatever auceeding, which affect the contract, belong to the remedy.

An unconstitutional law has the same and no greater effect on subsequent than on prior contracts. If a State can, in the mode supposed,

thority appertained to them at the period of the adoption of the Constitution. These conclusions are in entire harmony with the decisions of this court in the case of Sturges v. Crowinshield; in that of Ogden v. Saunders, so far as the lat

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