discharge of the debtor in bankruptcy according to the provisions of this law (40). Where both the debtor and creditor were eitizens of the state having the bankruptcy law and in which the contract was made, the matter was free from difficulty. A serious controversy arose over cases where the parties were citizens of different states. Suppose the contract were made in New York between a creditor living in Kentucky and a New York debtor, the New York bankruptcy law being then in force. If the Kentuckian leaves New York and the New Yorker then is discharged from his debt by a New York proceeding in bankruptcy to which the Kentuckian is not a party, does this discharge bind the Kentuckian? The Federal courts finally held it did not, probably not because the discharge impaired the obligation of a contract, which it could hardly do because not being a subsequent law; but because jurisdiction over the Kentuckian is necessary in such a proceeding (41) to affect his property, the debt due him.

As regards state bankruptcy laws, then, the result of the decisions is this: A state bankruptcy law can discharge only contracts made in the state, between citizens of that state, and subsequent to the bankruptcy law. Citizens of other states can only be affected by a discharge in bankruptcy when they become parties thereto.

§ 246a. Foreign suit on contract. As regards contracts made in one state, but sued upon and enforced

(40) Ogden v. Saunders, 12 Wheat., 213.

(41) Ogden v. Saunders, 12 Wheat., 213; Baldwin v. Hale, 1 Wall.,

in another state, it seems clear that the creditor cannot demand that the latter state give him the same remedies that he would have been entitled to in the state where the contract was made. Anyone who chooses or is compelled to bring suit outside of his own jurisdiction must expect such remedies only as are afforded by the law of the place where he sues. This law was never a part of the obligation of the contract made elsewhere, and so the creditor from another jurisdiction must take the domestic law and remedies as he finds them (42).

§ 247. Foreign contracts. The contract clause of the Constitution does not apply to contracts made in a foreign country with corporations of that country, even though suit may be brought upon such contracts in the United States. Legislation of the foreign government, impairing the obligation of the contract, will be respected here (43).

§ 248. Laws increasing the obligation of contracts. State legislation that provides a better remedy upon a contract, or a more certain enforcement, or which validates a void contract does not violate this clause of the Constitution (44). Such laws certainly do not impair the obligations of contracts, though they may perhaps be arbitrary or unjust, and may violate other constitutional provisions, such as the prohibition against taking property without due process of law.

(42) Bank of United States v. Donnally, 8 Pet., 361.

(43) Canada Southern Railway Co. v. Gebhard, 109 U. S., 527. (44) Satterlee v. Mathewson, 2 Pet., 380.

PART III.

THE FEDERAL GOVERNMENT.

CHAPTER XII.

FEDERAL POWERS AND THEIR EXERCISE.

§ 249. General principles of construction: Strict versus liberal. As has already been said (§§ 27, 28) the two great principles of construction applicable to the powers of the United States are, first, that it can exercise no powers except those expressly or by fair implication granted to it in the Constitution; and second, that over such granted powers it has absolute control, and its legislation thereunder is paramount to all conflicting state laws. The importance of these principles demands some further discussion.

Political parties in this country have long divided upon the question of interpreting the Constitution strictly or liberally. These distinctions are political in their nature. The duty of the judicial branch of the government is shown by the following quotation from Chief Justice Marshall:

"This instrument contains an enumeration of powers' expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is

there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. . . . As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas

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they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. . . . We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred" (1).

§ 250. Implied powers. In McCulloch v. Maryland (2) the question arose whether Congress could charter a national bank. Congress has express power to collect taxes and borrow money. Was the power to create a banking corporation fairly inferable from these? Chief Justice Marshall said:

"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. Bu there is no phrase in the instrument which, like the Articles of Confederation excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. . . . A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means