epancy
which once existed between the Court's theory of an overriding police
power in these two adjoining fields of Constitutional Law is today
apparently at an end. Indeed, there is usually no sound reason why
rights based on public grant should be regarded as more sacrosanct than
rights which involve the same subject matter but are of different
provenience.

Private Contracts

Scope of the Term.--The term "private contracts" is, naturally,
not all-inclusive. A judgment, though granted in favor of a creditor, is
not a contract in the sense of the Constitution;[1691] nor is
marriage.[1692] And whether a particular agreement is a valid contract
is a question for the courts, and finally for the Supreme Court, when
the protection of the contract clause is invoked.[1693]

Source of the Obligation.--The question of the nature and
source of the obligation of a contract, which went by default in
Fletcher _v._ Peck and the Dartmouth College case, with such vastly
important consequences, had eventually to be met and answered by the
Court in connection with private contracts. The first case involving
such a contract to reach the Supreme Court was Sturges _v._
Crowninshield[1694] in which a debtor sought escape behind a State
insolvency act of later date than his note. The act was held
inoperative; but whether this was because of its retroaction in this
particular case or for the broader reason that it assumed to excuse
debtors from their promises, was not at the time made clear. As noted
earlier, Chief Justice Marshall's definition on this occasion of the
obligation of a contract as the law which binds the parties to perform
their undertakings was not free from ambiguity, owing to the uncertain
connotation of the term _law_.

Ogden _v._ Saunders.--These obscurities were finally
cleared up for most cases in Ogden _v._ Saunders,[1695] in which the
temporal relation of the statute and the contract involved was exactly
reversed--the former antedating the latter. Marshall contended, but
unsuccessfully, that the statute was void, inasmuch as it purported to
release the debtor from that original, intrinsic obligation which always
attaches under natural law to the acts of free agents. "When," he wrote,
"we advert to the course of reading generally pursued by American
statesmen in early life, we must suppose that the framers of our
Constitution were intimately acquainted with the writings of those wise
and learned men whose treati