must be a matter of uncontrollable discretion, in passing laws relating to the remedy which are regardless of the effect on the right of the plaintiff.

§ 259. In the case of Nelson v. Allen and Harris,(a) an act of the legislature of Tennessee, which gave to a defendant the value of his improvements made upon the land, in an action of ejectment or by suit for the same, was held to be in conflict with this clause of the constitution. The decision in this case as well as in the case of Bristoe v Evans and M'Campbell, decided previously in the same court, was put upon the ground, that the bill of rights had declared, "that no law impairing the obligation of contracts shall be made." A grant from the state was a contract between the state and the grantee. It was a contract executed, and it contained binding obligations on the parties. Any legislative act which impaired the obligation arising from the grant, that the grantee should have the exclusive use and enjoyment of the property granted, subject to such taxes and burdens as had been customary, for the good of society, before the formation of the constitution was unconstitutional and void. The act in question could not bear the test of this principle.

The idea that the state authorized a man to make an entry in the surveyor's books for the land of another, to make extensive improvements on the land, and under such circumstances, sustain an action for the value of the improvements, would be subversive of the clearest principles of natural right in relation to property, and consequently in violation of the constitution, which guarantied to every man the exclusive use of his own property. The same principle was applied in a case in the same court decided in 1813.(b) In that case the court said: "the idea of property, so dear to freemen, would be at once lost, if it can be controlled by others

(a) 1 Yerger, 360.

(b) Townsend v.

Ship's Heirs.

without the owner's approbation. Therefore, at common law, a person who cleared or improved another's land, without his consent or request, was not only entitled to no compensation, but was liable to an action of trespass; though, it is believed, that on the principles governing a court of equity, that court would directly sustain an action for the value of improvements. At this day it would be time mis-spent to descant at length upon the principles of the constitution under which we live. Let it suffice to observe, that they secure to the honest and industrious the exclusive enjoyment of the fruits of that honesty and industry; and, in other words, the undisturbed use of their property. No man can be deprived of it but by his own consent, unless for the public use; and not then, without just compensation. These principles, being inseparably interwoven in the frame and texture of our constitution, cannot be destroyed by a legislative act." It was upon analogous principles that the supreme court of this state, in the case of Quackenbush v. Danks,(a) held, that the act of 1842, exempting certain property from distress for rent and sale on execution, did not affect executions for debts contracted before its passage. That if it extended to such debts it would be in conflict with this clause of the federal constitution. Under these cases it has at length become definitely settled, that a state law which impairs the obligations of a contract, whether that contract be found in the express terms and conditions of the written contract between the parties, or is engrafted upon the contract by the law of the land, as it existed at the time the contract was made, is within this prohibitory clause of the federal constitution, as well also as all laws aimed or nominally directed to the rem

(a) 1 Denio, 128.

1

edy, when they so affect the remedy as to impair the right itself, or engraft upon such right, terms and conditions inconsistent with the original contract itself, and thus affecting or impairing its obligation. The principle has universally obtained, that no act of the legislature can alter the nature and legal effect of an existing contract, to the prejudice of either party. The difficulty that has arisen in all the cases upon this subject has been in defining and ascertaining the line of demarcation, between acts which affect the contract so as to impair its obligation, and acts relating to the subject matter of the contract, but affecting only the remedy.(a)

§ 260. There is another class of cases which have arisen in our courts, which have been upheld as not within this clause of the constitution, and which proceed upon the ground, that they effect the remedy merely, and leave the contract untouched and unimpaired. The remedy of imprisoning the debtor may be taken away, and has been so taken away; and such laws have been held as not impairing the obligation of the contract. This distinction was clearly recognized in the case of Sturges v. Crowningshield, (b) and it was upon this distinction that the supreme court of Massachusetts, in the case of Bigelow v. Pritchard, (c) held, that the insolvent law of 1838, which provided that an assignment should vest the debtor's property in the assignee, although the same might then be attached on mesne process, and should dissolve such attachment, applied to an attachment made after the statute went into operation, for the purpose of securing a debt incurred before its enactment, was not one impairing the obligation of the contract, but

(a) See King v. Dedham, 15 Mass, R. 447. Foster v. Essex Bank, 16 Mass. R. 245.

(b) 4 Wheat. 122.
(c) 21 Pick. 169,

only affected the remedy. The court held, that the creditor had no vested right in the mere remedy, unless he had exercised it by the commencement of legal process under it, before the law making an alteration concerning it should have gone into operation, and that in that case the attachment had not been made until after the act was passed.

§ 261. This constitutional restriction also prohibits any state passing a law divesting a vested right, whether that right be acquired under or by virtue of an express contract, or acquired under or by virtue of a charter granted by the government itself, either to individuals or to a corporation, or held under a government charter antecedent to American independence. It was held, in the case of The Trustees of Dartmouth College v. Woodward,(a) that the charter granted by the British crown to the trustees of Dartmouth College in New Hampshire, in 1769, was a contract within the meaning of this clause of the constitution of the United States, and that the charter was not dissolved by the Revolution.

§ 262. In the case last cited the constitutionality of acts of the legislature of N. H., amending and altering the charter of Dartmouth College came in question. Among other alterations the act in question increased the number of trustees, and gave the appointment of additional members to the executive of the state, and created a board of overseers, with power to inspect and control the most important acts of the trustees. In this case, Chief Justice Marshall said: "It has been argued, that the word 'contract,' in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to offices held within a state for state purposes, and to many of those laws

(a) 4 Wheat. 518.

concerning civil institutions, which must change with circumstances, and be modified by ordinary legislation; which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and its obligations are affected by the laws respecting divorces. That the clause in the constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its broad unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a state, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term 'contract,' must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt; and to restrain the legislature in future from violating the right of property. That anterior to the formation of the constitution, a course of legislation had prevailed in many, if not in all, of the states, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements. To correct this mischief, by restraining the power which produced it, the state legislatures were forbidden' to pass any law impairing the obligation of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the constitution must in construction receive some limitation, it may be confined, and ought to be confined, to cases of this de