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and the State could not pass a law impairing its obligation. Also that contracts made by a State were as much within the prohibition of the Constitution against the impairment of the obligation of a contract as contracts made by an individual. Consequently it was held that, bona fide purchasers having acquired a fee under the act of 1795, the State of Georgia was prohibited from enacting a law which would impair the validity of the grant, and that the prohibition applied to both executory and executed contracts. In ii Peters, 420, Justice McLean said: “If it were not for the opinion in Fletcher v. Peck, I would think the prohibition as to contracts applied only to executory contracts.”

Chief Justice Marshall again delivered the opinion of the court in the next case on this subject which was that of New Jersey v. Wilson, decided in 1812. The legislature of New Jersey passed an act providing that certain lands which the State contemplated purchasing for the use of the Delaware Indians should be exempt from taxation. The lands were accordingly purchased for the Indians and conveyed to them in trust, and thereupon the Indians released their claim to the original lands. The Indians continued to occupy the lands upon which they had moved until 1803, when they were sold to settlers by act of the Legislature, subsequently the Legislature repealed the act of 1758, which exempted the lands from taxation. Chief Justice Marshall held that the original act of the legislature of New Jersey, passed in consideration that the Indians would release their title to the lands, which act declared that the new lands which should be purchased for the Indians should be exempt fronı taxation, amounted to a contract, and that any subsequent act of the legislature which repealed the original act violated that clause of the Constitution of the United States which prohibits a State from impairing the obligation of a contract. 38

Chief Justice Marshall again delivered the opinion of the Court in the next case which touched this subject, the famous case of Sturges v. Crowninshield.39 Here the court held, that an act of the legislature of New York violated this clause of the Constitution. The facts in the case are as follows: Suit was brought against the maker of two promissory notes.

7 Cranch, 164, 167. 894 Wheaton 122.

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The defendant pleaded as his defense, that he was discharged from the payment of the notes "under an act for the benefit of insolvent debtors and their creditors passed by the legislature of New York, in 1811." To this there was a general demurrer filed. Marshall admitted that a State might pass a bankrupt law before Congress exercised its power to do so provided such State law did not impair the obligation of a contract. The notes sued upon had been executed before the law was passed and Marshall in his opinion, expressly limited the decision to the case actually before the court. It was held that the act of the legislature of New York, so far as it attempted to discharge the maker of the notes from paying them, was contrary to the Constitution of the United States, because it impaired the obligation of contracts.

DEFINITION OF CONTRACT In the famous case of Dartmouth College v. Woodward, 40 decided in 1819, the most elaborate exposition in regard to contract was made. Chief Justice Marshall in his opinion said, that Dartmouth College was a private and not a public corporation, and later in his decision, in regard to contracts said:

“The term 'contract,' as used in this clause of the Constitution, 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 to 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.' The contracts referred to were 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 description;

4 Wheaton, 518.

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to cases within the mischief it was intended to remedy. Then he proceeded to state that it was not “ the purpose of the framers of the Constitution to restrain the States in regulating their civil institutions adopted for internal government, and that the instrument they have given us is not to be so construed may be admitted.”

This decision established the important principle, that where a contract had been entered into and the rights of the parties under it had become fixed, a State could not, by legislative enactment, pass a law which would impair those rights.

OBLIGATION OF CONTRACTS DEFINED

Chief Justice Marshall created the first judicial construction of the term obligation of contracts. This was given in Sturges v. Crowninshield, 41 in which he said:

“It would seem difficult to substitute words which are more intelligible, or less liable to misconstruction, than those which are to be explained. A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract."

Thus, here we have Marshall's definition of what the Constitution means when it speaks of the obligation of a contract. It is the power or force in the law, which binds or compels one to complete his agreement.

DELEGATION OF POWERS OF PRESIDENT Chief Justice Marshall delivered the opinion in the case of Marbury v. Madison,42 and in commenting upon the power of the President said:

“ By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

“In such cases their acts are his acts; and whatever opinion 41 4 Wheaton, 122. 42 i Cranch.

may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. . . . The application of this remark will be perceived by adverting to the act of Congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

“But when the legislature proceeds to impose on that officer other duties, when he is directed peremptorily to perform certain acts, when the rights of individuals are independent on the performance of those acts:— he is so far the officer of the law; is amenable to the laws for his conduct and cannot at his discretion sport away the vested rights of others.

“ The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy." 43

CHIEF JUSTICE MARSHALL ISSUES SUBPENA FOR

PRESIDENT JEFFERSON IN BURR TRIAL How far, if at all, is the President subject to the process of the courts in civil or criminal actions? There has been great diversity of opinion among lawyers and constitutional writers for more than a century on this question. The chief authority in favor of the view that the President is subject to the process of a court is the decision of Chief Justice Marshall, upon application for a subpæna duces tecum directed to President Jefferson in the Burr trial. Here Marshall issued an order for a subpæna duces tecum requiring Jefferson to appear and produce at the trial certain papers, which it was believed he possessed. Chief Justice Marshall said:

131 Cranch, 165, 166.

“ That the President of the United States may be subpoenaed and examined as a witness and required to produce any paper in his possession, is not controverted. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. The guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas is to be looked for in the conduct of the court after these subpænas have been issued, not in any circumstances which is to precede their being issued. ... The court can perceive no objection to a subpæna duces tecum to any person whatever provided the case be such as to justify the process." 44 Marshall also said:

“In no case of this kind would a court be required to proceed against the President as an ordinary individual. The objections to such a course are so strong and so obvious that all must acknowledge them.” 45

EXTENT OF JUDICIAL POWERS What is meant by extending the judicial power to all cases? What is a case in this connection and when does it arise? Chief Justice Marshall said:

“ It enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form transcribed by law. It then becomes a case.'

"! 46

WHAT IS A CASE?

“A case in law or equity consists of the right of one party as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either." 47

The words case and cause are synonymous in legal nomen44" Burr's Trial," Vol. I, 182. 45 “ Burr's Trial,” Vol. II. 536. 46 Osborn v. U. S. Bank, 9 Vheato 738, 819. 47 Cohens v. Virginia, 6 Wheaton, 379.

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