IMPAIRING THE OBLIGATION OF CON TRACTS. By article First, Section 10, Clause 1, of the Constitution of the United States "No state shall pass . . . any bill of attainder, ex post facto law, or law im pairing the obligation of contracts." There has been much discussion as to the reasons which led the Convention of 1787 to insert this clause in the constitution. They seem to have intended that it should prevent the states from passing stay laws and bank rupt laws (Bradley, J., Union Pac. R. Co. v. U. S., 99 U. S. 745, 25 L. Ed. 496), and other acts which would interfere with private con tracts or engagements previously formed. Stay laws to prevent the collection of debts had been passed in many of the states, es pecially in the South. In the Dartmouth Col lege Case, 4 Wheat. (U. S.) 518, 4 L. Ed. 629, Chief Justice Marshall said that he thought it more than possible that the convention had not intended by the clause to preserve the integrity of the charters of corporations. But in Pennsylvania the legislature had re voked the charter of the College of Philadel phia and virtually confiscated its property by taking it away from its trustees and giv ing it to another set of trustees who were of the political party which controlled the leg islature. The same legislature had annulled the charter of the Bank of North America to which it was hostile, and would have suc ceeded in wrecking it, if the bank had not had another charter from congress, and soon after obtained one from the state of Dela ware. These acts of spoliation alarmed all men of property, and James Wilson, a Penn sylvania member of the convention, who had been interested in both the bank and the col lege, was most active in procuring the adop tion of the clause. Fisher's "Pennsylvania: Colony and Commonwealth" 375, 383 ;, Fish er's "Evolution of the Constitution" 262; Shirley's "Dartmouth College Case" 213, 220; Alfred Russell's Address before Grafton and Coos Bar Association of New Hampshire, 1895 (reprinted Am. Law Rev. vol. 30, p. 321).
This article of the constitution forbids only the states to pass laws impairing the obliga tion of contracts, and there is no express provision prohibiting congress from passing such laws. It would seem, moreover, as some have argued, that there is an implied power in congress to pass such laws, for we find in the constitution a number of general prohibitions in' which both congress and the states are prohibited from passing bills of attainder and ex post facto laws. The omis sion of the prohibition in one case and the expression of it in the other might seem to imply that the power to pass laws impairing the obligation of contracts remained in con gress; and congress is expressly given power to pass bankrupt laws which impair the ob ligation of contracts between debtors and creditors; Sturges v. Crowninshield, 4 Wheat. (IT. S.) 122, 4 L. Ed. 529; and with respect to this provision the argument e,x pressio unius est exclusio alterius may also be invoked as against a similar limitation of the power of congress. So under the deci sions of the supreme court, congress may is sue notes as legal tender in satisfaction of antecedently contracted debts. But the gen eral exercise of such a power by congress has been said to be contrary to the first prin ciples of the social compact and to every principle of sound legislation ; Federalist No. 44. Bradley, J., in a dissenting opinion in the Sinkilg-Fund Cases (Union Pac. R. •Co. v. U. S.) 99 U. S. 746, 25 L. Ed. 496, took the same view of the origin of this provision, and said further that it fully explained the fact that no such inhibition was laid upon the national legislature, and he was further of opinion that the absence of such Inhibi tion furnished no ground of argument in fa vor of the proposition that congress can pass arbitrary and despotic laws with regard to contracts any more than with regard to any other subject-matter of legislation.