Volume IV Part 21 (2/2)

Following his provoking custom of taking up a point with which he had already dealt, Marshall harks back to the subject of the reason for inserting the contract clause into the Const.i.tution. He restates the argument against applying that provision to State insolvent laws--that, from the beginning, the Colonies and States had enacted such legislation; that the history of the times shows that ”the mind of the convention was directed to other laws which were fraudulent in their character, which enabled the debtor to escape from his obligation, and yet hold his property, not to this, which is beneficial in its operation.”

But, he continues, ”the spirit of ... a const.i.tution” is not to be determined solely by a partial view of the history of the times when it was adopted--”the spirit is to be collected chiefly from its words.” And ”it would be dangerous in the extreme to infer from extrinsic circ.u.mstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.” Where language is obscure, where words conflict, ”construction becomes necessary.” But, when language is clear, words harmonious, the plain meaning of that language and of those words is not ”to be disregarded, because we believe the framers of that instrument could not intend what they say.”[608]

The practice of the Colonies, and of the States before the Const.i.tution was adopted, was a weak argument at best. For example, the Colonies and States had issued paper money, emitted bills of credit, and done other things, all of which the Const.i.tution prohibits. ”If the long exercise of the power to emit bills of credit did not restrain the convention from prohibiting its future exercise, neither can it be said that the long exercise of the power to impair the obligation of contracts, should prevent a similar prohibition.” The fact that insolvent laws are not forbidden ”by name” does not exclude them from the operation of the contract clause of the Const.i.tution. It is ”a principle which is to be forbidden; and this principle is described in as appropriate terms as our language affords.”[609]

Perhaps paper money was the chief and impelling reason for making the contract clause a part of the National Const.i.tution. But can the operation of that clause be confined to paper money? ”No court can be justified in restricting such comprehensive words to a particular mischief to which no allusion is made.” The words must be given ”their full and obvious meaning.”[610] Doubtless the evils of paper money directed the Convention to the subject of contracts; but it did far more than to make paper money impossible thereafter. ”In the opinion of the convention, much more remained to be done. The same mischief might be effected by other means. To restore public confidence completely, it was necessary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use of any means by which the same mischief might be produced. The convention appears to have intended to establish a great principle, that contracts should be inviolable. The const.i.tution therefore declares, that no state shall pa.s.s 'any law impairing the obligation of contracts.'”[611] From all this it follows that the New York Bankruptcy Act of 1812 is unconst.i.tutional because it impaired the obligations of a contract.

The opinion of the Chief Justice aroused great excitement.[612] It, of course, alarmed those who had been using State insolvent laws to avoid payment of their debts, while retaining much of their wealth. It also was unwelcome to the great body of honest, though imprudent, debtors who were struggling to lighten their burdens by legislation. But the more thoughtful, even among radicals, welcomed Marshall's p.r.o.nouncement.

Niles approved it heartily.[613]

Gradually, surely, Marshall's simple doctrine grew in favor throughout the whole country, and is to-day a vital and enduring element of American thought and character as well as of Const.i.tutional law.

As in Fletcher _vs._ Peck, the principle of the inviolability of contracts was applied where a State and individuals are parties, so the same principle was now a.s.serted in Sturges _vs._ Crownins.h.i.+eld as to State laws impairing the obligation of contracts between man and man. At the same session, in the celebrated Dartmouth College case,[614]

Marshall announced that this principle also covers charters granted by States. Thus did he develop the idea of good faith and stability of engagement as a life-giving principle of the American Const.i.tution.

FOOTNOTES:

[437] M'Culloch _vs._ Maryland, see _infra_, chap. VI.

[438] See vol. II, 60, of this work.

[439] Sumner: _History of American Currency_, 63.

[440] See Memorial of the Bank for a recharter, April 20, 1808 (_Am.

State Papers, Finance_, II, 301), and second Memorial, Dec. 18, 1810 (_ib._ 451-52). Every statement in these pet.i.tions was true. See also Dewey: _Financial History of the United States_, 100, 101.

[441] See vol. II, 70-71, of this work.

[442] _Annals_, 1st Cong. 2d. Sess. 1945. By far the strongest objection to a National bank, however, was that it was a monopoly inconsistent with free inst.i.tutions.

[443] Jefferson to Gallatin, Dec. 13, 1803, _Works_: Ford: X, 57.

[444] ”Fully two thirds of the Bank stock ... were owned in England.”

(Adams: _U.S._ V, 328.)

[445] Dewey, 127; and Pitkin: _Statistical View of the Commerce of the United States_, 130-32.

[446] Adams: _U.S._ V, 328-29.

[447] _Annals_, 11th Cong. 3d Sess. 118-21.

[448] _Ib._ 153, 201, 308; and see Pitkin, 421.

[449] Adams: _U.S._ V, 327-28. ”They induced one State legislature after another to instruct their senators on the subject.” Pitkin, 422.

[450] Ambler: _Ritchie_, 26-27, 52.

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