forming the obligations of the contracts that they have made. In some cases the obligations have lost a part of the nominal values which they had when they were made; in other cases the obligations have become wholly valueless. The moral obligation to perform a contract cannot be destroyed nor impaired either by a party or by the government; but a moral obligation has no present value except so far as it is supported by the ability of the failing party to respond pecuniarily to the claims that may be made upon him.

§ 190. A bankrupt law does not impair the moral obligation of contracts. On the contrary, it takes possession of the property of an insolvent debtor, enforces the performance of the obligations of his contracts to the extent of his present ability, and thus far it acts in aid of the moral obligation.

The law does not undertake to perform impossible things, and it has no means of enabling a bankrupt to pay his debts in full. A bankrupt law does all that law can do; it takes possession of the bankrupt's property and divides it pro rata among his creditors.

§ 191. Thus far there can be no doubt as to the morality of the proceeding, but the question remains, on what ground can the bankrupt be discharged from further liability? The answer, whether sufficient or insufficient, is to be found in the statement that it is against public policy to keep citizens, guilty in law of no crime, in a condition of semi-servitude, from which a meagre minority only can ever escape.

§ 192. If the three national bankrupt laws that have been enacted cannot be assailed successfully upon the ground that those laws impaired the obligation of contracts, it remains to be said that a State bankrupt law which should operate upon preëxisting contracts could not be assailed successfully and for like reasons.

In this view of the subject, the holding in the case of Sturges and Crowninshield was an erroneous holding. This is but saying that a State might wisely and properly do for its own citizens and strictly within its own jurisdiction, what

Congress could wisely and properly do for the whole country.

§ 193. The opinion rendered in the case of Sturges and Crowninshield that a State law could not operate upon preexisting contracts made inevitable the question raised in the case of Ogden and Saunders, viz.: Can a State law set aside the obligation of future contracts, or in less objectionable phraseology, can it relieve obligors from the performance of their contracts.

§ 194. The Court by a majority, and by a process of reasoning which Mr. Webster opposed at the bar, and which Chief Justice Marshall condemned from the bench, maintained the doctrine that an existing bankrupt law was in fact either incorporated into every subsequent contract, or so controlled the contracts that the law could operate upon and annul the contracts without any impairment of the obligations.

§ 195. Whatever may be thought of the logic and the law involved in the opinion of the majority in the case of Ogden and Saunders, the decision was a fortunate decision. As was said by Chief Justice Marshall, not much time could elapse before all contracts would be subject to the control of a statute which should operate in futuro. Such has been the experience of States that have maintained insolvent laws as a fixed public policy. If the opinion of the minority had prevailed, the States would have been powerless to maintain an insolvency system of any sort, and the commercial sections of the country would have been left to the vacillating policy which has marked the proceedings of Congress in regard to a uniform system of bankruptcy.

CHAPTER XII.

POWER TO COIN MONEY, ETC.

ART. 1, SEC. 8, PAR. 5.

"The Congress shall have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures."

§ 196. Under the clause of the Constitution which empowers Congress "to coin money, regulate the value thereof, and of foreign coin," only two questions of importance have been considered by the Supreme Court.

In the consideration of these questions the Court was required to interpret the succeeding clause of the Constitution which gives to Congress power "to provide for the punishment of counterfeiting the securities and current coin of the United States."

§ 197. The first question came, by writ of error, from the Supreme Court of the State of Ohio. (Fox v. State of Ohio, 5 How. 410.) The plaintiff was indicted, tried, and convicted under a law of the State, for passing a counterfeit coin, knowing the same to be counterfeit. For the defendant it was contended that under the two clauses of the Constitution the power to legislate upon the subject was in Congress exclusively. The Court held that if the authority of Congress was in any degree exclusive, its exclusive power was limited to laws for the punishment of persons found guilty of the crime of counterfeiting coin and securities as distinguished from the crime of passing such counterfeited coin or securities. But the Court went further and held that although Congress was invested with power to punish the crime of counterfeiting, it was competent for a State to provide for the punishment of the same offence, and the

suggestion was made that the offender might be subject to trial and penalty in each jurisdiction.

§ 198. Justice McLean dissented from the opinion of the Court, and he says in his dissenting opinion that Mr. Justice Story, at a conference held during the life of Justice Story, expressed his dissent from the view of the Court.

§ 199. In the case of the United States against Marigold (9 How. 560), the Court sustained the constitutionality of the twentieth section of the act of March 3, 1825. (4 Stat. 121.) By that section it was declared to be an indictable offence for any person to bring into the United States any counterfeit coin with intent to pass the same, or to utter, publish or sell any such coin knowing the same to be false, forged or counterfeit, and with intent to defraud.

§ 200. The suggestion is made in the opinion of the Court that the constitutionality of the act could be maintained under the power to regulate commerce with foreign nations; but this view is not enforced by argument. The opinion rests upon the claim that under the power to coin money and to regulate its value, it is the duty of Congress to create and to maintain "a uniform and pure metallic standard of value throughout the Union;" and, consequently, that by penal statutes it may prohibit the introduction of forged and counterfeit foreign coin, with intent to defraud any person or body corporate, and may also provide for the punishment of the offence of uttering and passing the same.

CHAPTER XIII.

POST OFFICES AND POST ROADS.

ART. 1, SEC. 8, PAR. 7.

"The Congress shall have power to establish post offices and post roads."

§ 201. From the opinion of the Court in the case of the State of Pennsylvania v. The Wheeling and Belmont Bridge Company (18 How. 421), the inference is warranted that there are no restrictions upon the powers of Congress to establish "Post Roads." As to "Post Offices," no limits can be set to the power of Congress to authorize their establishment. Indeed, it is the existence of such unlimited power which gives value to the system, and a kindred reason exists in the matter of "Post Roads."

§ 202. The State of Virginia having authorized the construction of a bridge across the Ohio River at a point where the river separates that State from Pennsylvania, the latter State filed a bill to restrain the parties engaged in the work from completing the structure.

A conditional injunction was granted. The defendant corporation was permitted to continue the work only upon the condition that certain specified alterations were made in the plan of the bridge. The Court found that the bridge, as authorized by the statute of Virginia, was an obstruction to navigation, and that the statute of Virginia was an infringement upon the power of Congress to regulate commerce among the States.

§ 203. As the agents of the corporation continued the work upon the bridge without conforming to the order of the Court, several motions were made to enforce the original decree by process of attachment for contempt, and for the