Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/275

 CH. XXXIV.] judicial functions; nor from divesting rights, vested by law in an individual; provided its effect be not to impair the obligation of a contract. If such a law be void, it is upon principles derived from the general nature of free governments, and the necessary limitations created thereby, or from the state restrictions upon the legislative authority, and not from the prohibitions of the constitution of the United States. If a state statute should, contrary to the general principles of law, declare, that contracts founded upon an illegal or immoral consideration, or otherwise void, should nevertheless be valid, and binding between the parties; its retrospective character could not be denied; for the effect would be to create a contract between the parties, where none had previously existed. Yet it would not be reached by the constitution of the United States; for to create a contract, and to impair or destroy one, can never be construed to mean the same thing. It may be within the same mischief, and equally unjust, and ruinous; but it does not fall within the terms of the prohibition. So, if a state court should decide, that the relation of landlord and tenant did not legally subsist between certain persons; and the legislature should pass a declaratory act, declaring, that it did subsist; the act, so far as the constitution of the United States is concerned, would be valid. So, if a state legislature should confirm a void sale, if it did not divest the settled rights of property, it would be valid. Nor (as has been already seen) would a state law, discharging