or forfeiture of estates, though in a few, it seems, there may still be a forfeiture during the life of the person convicted.

Soon after the adoption of the federal constitution, congress passed an act declaring that no conviction or judgment, for any capital or other offense, should work corruption of blood or any forfeiture of estate.1 146 But in 1861, at the beginning of the civil war, new statutes for the punishment of treason were enacted, and these provided for the confiscation of the property of persons in rebellion against the government. But a question having been made, as to whether the fee in the realty of such persons might not be confiscated, it was expressly provided in the confiscation acts that no punishment or proceedings should be construed to work a forfeiture of the real estate of the offender, longer than for the term of his natural life.147

In English law, corruption of blood was the consequence of attainder. It meant that the attainted person could neither inherit lands or other hereditaments from his ancestor, nor retain those he already had, nor transmit them to any heir by descent, because his blood was considered in law to be corrupted. This was abolished

by St. 33 & 34 Vict. c. 23, and is unknown in America.

In England, if a person is outlawed for treason, his lands are forfeited to the crown. If he is outlawed for felony, he forfeits to the crown all his goods and chattels, real and personal, and also the profits of his freeholds during his life, and after his death, the crown is entitled to his freeholds for a year and a day, with the right of committing waste. Formerly, a conviction for any kind of felony caused a forfeiture of goods and chattels, both real and personal, but this has been abolished by the St. 33 & 34 Vict. c. 23. This statute provides that no conviction, judgment, or sentence for treason or felony shall work corruption of blood or forfeiture. But it leaves the old law of outlawry for treason and felony, with its consequences, untouched.148

146 Rev. St. U. S. § 5326 (Act April 30, 1790).

147 See 2 Story, Const. § 1300, note; Bigelow v. Forrest, 9 Wall. 339; Day v. Micon, 18 Wall. 156; Wallach v. Van Riswick, 92 U. S. 202; Fire Department v. Kip, 10 Wend. 266.

148 See 4 Steph. Comm. (10th Ed.) 477; Williams, Real Prop. 126.

CHAPTER XXI.

LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.

269. Constitutional Provisions.

270. The Law Impairing the Contract.

271, The Obligation.

272. The Impairment of the Contract.

273-275. What Contracts are Protected.

276. Limitations on Power of Legislature to Contract. 277-281. Charters as Contracts.

282-283. Exemption from Taxation.

284. Laws Affecting Remedies on Contracts.

CONSTITUTIONAL PROVISIONS.

269. The federal constitution provides that no state shall pass any law impairing the obligation of contracts. And the constitutions of many of the states impose the same restraint upon their legislatures.

The causes for the introduction of this clause into the constitution of the United States are to be found in the financial condition of the country at the close of the revolutionary war, and the disposition of the states, at that time, with reference to the enforcement of public and private obligations. It was much to be apprehended that they would repudiate their debts, unless restrained by some such provi sion of the paramount law. There was also a strong desire to issue paper money and make it circulate, even when that involved the discharge of previous contracts in an almost worthless currency. Further, the various states were much inclined to make such liberal provision for the relief and encouragement of the debtor class as would result in great injury and detriment to the class of creditors, and to the serious impairment of public and private credit. The means adopted to check these tendencies was the prohibition upon state action which we are about to consider. That it has been beneficent in its effects cannot be doubted. But it has given rise to an amount of litigation, and has involved the courts in a succession of adjudications, which are not equalled by those growing out

of any other clause of the constitution, unless it may be that which gives to congress the power to regulate commerce.This prohibition, it will be noticed, is directed only against the states, and there is no other clause in the constitution laying a like inhibition upon congress. It follows, therefore, that if congress should pass a law, falling within the scope of its jurisdiction, and not obnoxious to any other prohibition of the constitution, the courts would be obliged to sustain it, notwithstanding its effect might be to impair the obligation of existing public or private contracts.) The injustice of such an act would not be sufficient ground for adjudging it unconstitu tional. And in fact, such consequences have attended several of the acts of congress, such as the legal tender law and the various statutes of bankruptcy, but their constitutionality has not been questioned on that ground.1 But it has been held that the legislature of a territory has no more power to pass a law impairing the obligation of contracts than is possessed by the legislature of a state.3

THE LAW IMPAIRING THE CONTRACT.

270. The prohibition against impairing the obligation of contracts applies not only to the ordinary statutes of the state, and the ordinances of its municipalities, but also to any clause in its constitution, or any amendment thereto, which produces the forbidden effect.

A provision in a state constitution, or an amendment thereto, is a "law" within the meaning of this clause. The federal constitution is the supreme law of the land, and its prohibitions upon state action apply just as much to the people of the state, when making or amending their constitution, as to their representatives sitting in the legislature to make ordinary laws. Hence if a constitutional provision or amendment impairs the obligation of contracts, it is void.3 (But the prohibition is directed against the legis

1 Hepburn v. Griswold, 8 Wall. 637; Gunn v. Barry, 15 Wall. 610; Mitchell . Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312; Evans v. Eaton, Pet. C. C. 322, 837, Fed. Cas. No. 4,559; Hopkins v. Jones, 22 Ind. 310.

2 Morton v. Sharkey, McCahon (Kan.) 535.

3 New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Manuf'g

of the Confederate Brave" enfomed as a law of one of the states ramcoming that confederation, sequestrating a debt owing by one of a man to a dizen of a loyal state as an allen enemy, is void

THE OBLIGATION.

271. The obligation of a contract is that duty of performthe contract, according to its terms and intent, which the law recognizes and enforces.

For judicial purposes, and in the constitutional sense, the "oblization" of a contract is that duty of performing it which the law recgizes and enforces.* "The obligation of a contract, in the constitusonal sense, is the means provided by law by which it can be enforced, and by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the oblization. If it tends to postpone or retard the enforcement of the

Co. 115 U. 8. 650, 6 Sup. Ct. 252: Delmas v. Insurance Co., 14 Wall. 661; Indige v. Woolsey, 18 How. 331; Gunn v. Barry, 15 Wall. 610.

New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 7 Sup. Ct. 741; Itallroad Co. v. McClure, 10 Wall. 511.

• Williams v. Bruffy, 96 U. S. 176.

Black, Const. Prohib. 139; Story, Confi. Laws, § 266; Johnson v. Duncan, 3 stort (n.) 580.

contract, the obligation of the latter is to that extent weakened."" In illustration of this rule, it is held that a state statute repealing a former law, which made the stock of stockholders in a corporation liable to its debts, is, as respects creditors of the corporation existing at the time of the repeal, a law impairing the obligation of contracts and therefore void.

THE IMPAIRMENT OF THE CONTRACT.

272. A law impairs the obligation of contracts and is void if it

(a) Precludes a recovery for breach of the contract.
(b) Excuses one of the parties from performing it.
(c) Renders the contract invalid.

(d) Puts new terms into the contract.

(e) Enlarges or abridges the intention of the parties.
(f) Postpones or accelerates the time for performance
of the contract.

(g) Interposes such obstacles to its enforcement as
practically to annul it.

Any statute is unconstitutional, as impairing the obligation of contracts, which introduces a change into the express terms of the contract, or its legal construction, or its validity, or its discharge, or (within certain limits to be presently noticed) the remedy for its enforcement. The extent of the change is not material; any impairment of the contract is unlawful. "This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force."

WHAT CONTRACTS ARE PROTECTED.

273. The "contracts" intended to be secured by this clause of the constitution are all such as might be injuriously affected by the legislative action of the state if not thus protected.

7 Louisiana v. New Orleans, 102 U. S. 203.

8 Hawthorne v. Calef, 2 Wall. 10; Ochiltree v. Railroad Co., 21 Wall. 249. • Planters' Bank v. Sharp, 6 How. 301, 327.