the time the law passed. If so, the rules of construction as well as a just respect for the legislature would lead to an exposition of it, which would apply its provisions to those embryo banking institutions, which looked forward to a future establishment; and not to those associations, which were in practical operation as banking establishments when the law passed, and consequently out of the power of the legislature in any way to affect.

But supposing (without admitting) for the sake of a full exposition of this supplement in all its bearings, that it was intended to operate on the Farmers' Bank of Lancaster; the question would then occur, would it be constitutional or not?

This inquiry involves in it the rights of the people and the power of the government. Fortunately for Americans, both their federal and state governments are founded upon solemn compacts, which recognise the people as the true and only source of all legitimate power, and as one of the parties to these contracts with their governments.

The powers granted to the government they have a right to exercise; the rights retained by the people the government cannot invade. The people of Pennsylvania" to the end that the general, great and essential principles of liberty and free government may be recognised and unalterably established," declare in the 19th section of the 9th article of the constitution "that no ex post facto law, nor any law impairing contracts, shall be made." And in the 26th section of the same article it is declared, that every thing in this article "is excepted out of the general powers of government, and shall for ever remain inviolate."

The constitution of the United States in section 10 of article 1. declares, that "no state shall make any ex post facto law, or any law impairing the obligation of contracts."

In these sections of the constitutions, the power of the legislature to interfere with contracts is expressly declared not to be granted to them; but to be excepted out of the general powers of government. And to shew the unalterable attachment of the people to the rights they reserved and the restrictions they impose on the government, which they considered

as essential to the preservation of liberty and free government, they declare these rights and reservations shall remain for ever inviolate. These rights and reservations are fundamental rules of our social compact, imposed by the people in their creation of the government, and which the constitutional authorities, their creatures, are bound to obey.

If then in this supplement it could be supposed that the legislature, contrary to all reason and conscience, intended to suppress, or even to impair, the solemn contract entered into on the faith of an act of assembly between the stockholders themselves and between them and those who should transact business with them, it would be an act done against the most positive and sacred obligations not to do it; it would be a palpable invasion of the constitutional rights of the people, and would be consequently null and void to all intents and purposes. I am therefore of opinion:

1st. That the articles of association of the Farmers' Bank of Lancaster, being bottomed on the act of assembly of the 28th of March 1808, and carried into effect through all the details of a banking institution before this supplement was passed, acquired that inviolability conferred by the constitution upon contracts that no act of the legislature could impair

them.

2d. That the articles of association being authorised by, and conforming to the terms prescribed by, the act of assembly of the 28th of March 1808, incorporated with it; and being carried into complete effect before this supplement passed, made the Farmers' Bank of Lancaster an incorporated bank before and at the time this supplement passed; and consequently that it is, not within the description and operation of that law.

JAMES HOPKINS.

CIVIL LAW.

Translated for the American Law Journal.

A Translation of the Second Title of the Twenty-second Book of the Digests, entitled, De nautico Fœnore.

DIGEST, Book XIV. Tit. II.
Of Maritime Loan.

LAW I.

Modestinus, lib. 10. Pandectarum.

TRAJECTITIA. What is called maritime money (pecunia trajectitia) is money which is carried beyond the sea; if it should be consumed in the same place it will not be maritime: But it is to be considered whether the merchandize purchased with that money has been purchased with that view; and it is material that it should navigate at the peril of the creditor. Then the money becomes maritime.

LAW II.

Pomponius, lib. 3. ex Plautio.

• Labeo ait. Labeo says: If there is nobody on the part of the borrower on whom process can be served to compel him to pay the maritime money, the fact must be proved by testimony, and it will be equivalent to a legal demand.

LAW III.

Modestinus, lib. 4. Regularum.

In nauticâ. In a maritime loan the lender undertakes the risque from the day that the vessel is appointed to sail.

LAW IV.

Papinianus, lib. 3. Responsorum.

Nihil interest. It matters not whether the maritime money has been taken without being at the risque of the lender, or whether it ceased to be at the risque of the creditor after the expiration of the term or performance of the condition, in either of these cases no more than the common legal interest shall be due; and never in the first case, nor in the second from the time that the risque ceases, shall goods pledged or hypothecated be retained for a higher interest.

§ 1. The daily reward of a servant sent for the purpose of recovering the maritime money shall not exceed double the lawful interest of one per cent. per month. If the stipulation of interest to be paid after the risque expires does not amount to the whole legal interest, it may be supplied by another stipulation for the servant's labour.

LAW V.

Scævola, lib. 6. Responsorum.

Periculi pretium. The price or compensation of risque is whatever is given over and above the money received on a penal condition not actually existing, provided the contract is not of a gaming or wagering species, from which the condition is to arise, as if you manumit, if you do not do such a thing, if I shall not recover from sickness, &c. But there is no doubt where money is lent to a fisherman to purchase fishing tackle, to be repaid in case he shall catch fish, or to a prizefighter to fit himself for the combat, to be repaid in case he shall come off conqueror.

§ 1. But in all these cases a simple contract without a stipulation is sufficient to sanction the obligation.

LAW VI.

Paulus, lib. 25. Quæstionum.

Fænerator. A person having lent money at maritime risque, has taken in pledge some goods shipped on board of the vessel; and further, in case these should not be sufficient to satisfy the whole debt, other goods shipped on other vessels already pignorated to other lenders, are pignorated to him in case there shall be any residue; it is now asked, whether if the ship out of which he was to have been paid the whole be lost, it is to the damage of the lender, or whether he has yet a recourse on the residue of what was shipped on other vessels? I answer: in general the diminution of the pledge is to the damage of the debtor and not of the creditor, but when maritime money is thus given, that the lender has no right to demand his money unless the vessel arrives safe at the fixed time, the obligation of the debt is extinguished by the nonexistence of the condition, and therefore the lien on the pledge is also gone, even on those that are not lost: if the vessel is lost within the time fixed for the end of the risque, the condition of the stipulation is extinguished, therefore there is no ground for prosecuting a lien on the pledges that were shipped on board of other vessels. At what time then is the creditor to be admitted to prosecute such liens? Only when the condition of the obligation is actually in existence, and in case the pledge should be lost by another accident, or should sell for less than the money due, or if the vessel should be lost after the time when she ceases to be at the risque of the lender.

LAW VII.

Idem, lib. 3. Ad Edictum.

In quibusdam. Maritime interest is due on certain contracts agreeable to the stipulation. For if I lend ten pieces on this condition that if the ship arrives safe, I shall receive the principal with a certain interest, then I may receive the principal with the interest stipulated.