# Briscoe v. Bank Commonwealth Kentucky

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## Dissenting Opinion

    Story
United States Supreme Court
36 U.S. 257
Briscoe v. Bank Commonwealth Kentucky
[Syllabus from pages 257-259 intentionally omitted]
IN error to the Court of Appeals of the state of Kentucky. In the Mercer circuit court, of the state of Kentucky, the president and directors of the Bank of the Commonwealth of Kentucky, on the 15th of April 1831, filed a petition of debt, stating that they hold a note upon the defendants, George H. Briscoe, Abraham Fulkerson, Mason Vannoy and John Briscoe, in substance, as follows, to wit:
'2048 Dollars, 37 cents. One hundred and twenty days after date, we jointly and severally promise to pay the president and directors of the Bank of the Commonwealth of Kentucky, or order, 2048 dollars, 37 cents, negotiable and payable at the branch bank at Harrodsburg, for value received. Witness our hands, this 1st of February 1830.
"G. H. BRISCOE,
A. FULKERSON,
MASON VANNOY,
JOHN BRISCOE." The defendants appeared and filed the following pleas: 'The defendants, after craving oyer of the note, and the same being read to them, say, that the note was executed on no other or further consideration than that of another note which had been previously executed by them to the plaintiffs, for a certain sum, negotiable and payable at the branch of the said bank at Harrodsburg, and that the note so previously executed, was executed by them on no other or further consideration than that of the renewal of another note of the like tenor; and the defendants aver, that previous to the time of executing the note last mentioned, the legislature of the commonwealth of Kentucky, in the name and on behalf of the said commonwealth, by an act which passed on the 29th of November 1820, established a bank, the capital stock of which was declared to be $2,000,000, which said capital stock the said bank never received, or any part thereof, as these defendants aver; that by the provisions of said act, the president and directors of the said bank, and their successors in office, were declared and made a corporation and body politic, in law and fact, by the name and style of 'The President and Directors of the Bank of the Commonwealth of Kentucky;' that also, by said act, the president and directors of the said bank were, illegally, and contrary to the provisions of the constitution of the United States, empowered and authorized, for and on behalf of the said commonwealth, and upon her credit, to make bills of credit, to wit, bills or notes to an amount not exceeding $2,000,000, signed by the president and countersigned by the principal cashier, promising the payment of money to any person or persons, his, her or their order, or to the bearer; and the said bills or notes were so made, illegally, in violation of the said constitution, to emit, issue and circulate through the community, for its ordinary purposes, as money; that under the authority of the said act of the legislature, and in violation of the said constitution of the United States, the said president and directors had, before the date of the note last aforesaid, for and on behalf of the commonwealth, and on her credit, made various bills of credit, to wit, notes of various denominations, in amount from one to one hundred dollars, signed by the president of the said bank, and countersigned by the principal cashier, promising, therein and thereby, to pay the person in each note mentioned, or bearer, on demand, the amount therein mentioned in money, and were transferrible on delivery; and that for the purpose of circulating said notes through the community, for its ordinary porposes as money, the legislature of the said commonwealth, by an act passed on the 25th of December, in the year 1820, had, amongst other things, provided and declared, in substance, that upon all executions of fieri facias which should be thereafter issued from any of the courts of the said commonwealth, indorsed, that notes on the Bank of Kentucky or its branches, or notes on the bank of the Commonwealth of Kentucky or its branches, 'might, by the officer holding such execution, be received from the defendant in discharge thereof;' such executions, so indorsed, should only be replevied and delayed in their collection for the space of three months; but that all executions of fieri facias, which should thereafter be issued from any of the courts of the said commonwealth, without any indorsement for the reception of notes on the Bank of Kentucky or its branches, or notes on the Bank of the Commonwealth of Kentucky or its branches, should be replevied and delayed in its collection for the space of two years, or, if not so replevied, that property levied upon under the same should be sold upon a credit of two years. The said president and directors, for the like purpose, and with the like intent, afterwards, to wit, on the ___ day of _____ (that being the date of the note executed by the defendants last above mentioned), did, for and on behalf of the said commonwealth, for her benefit, and on her credit, illegally, and contrary to the said constitution of the United States, emit and issue the notes or bills of credit, so made as aforesaid, by the president and directors of said bank, to the amount of $2048.37, by loaning at interest, and delivering the same to the defendant Briscoe. And the defendants in fact aver, that the only consideration for which the note last above mentioned was executed by them, was the emission and loan of the said bills of credit, so made and issued as aforesaid to said Briscoe, by the plaintiffs, who are the president and directors of the bank aforesaid; wherefore, they say, that the consideration of the said last above mentioned note, executed by them, was illegal, invalid and in violation of the constitution of the United States; and that each of the notes thereafter executed by them as aforesaid, by way of renewal as aforesaid, of the said last above-mentioned note, was also founded upon the illegal, invalid and insufficient consideration aforesaid, and none other; and this they are ready to verify and prove; wherefore, they pray judgment, &c.
'And the defendants, for further plea in this behalf, say, that the plaintiffs, their action aforesaid against them ought not to have and maintain, because they say, that the only consideration for which the note in the petition mentioned was executed, was the renewal of a note which had been previously executed by them to the plaintiffs, for the sum of $2048.37, negotiable and payable at the branch of the Bank of the Commonwealth of Kentucky, located at Harrodsburg. And they aver, that previous to the date of the note, so renewed as aforesaid, the plaintiffs, under the provisions, and by the authority of the act of the legislature of the commonwealth of Kentucky, establishing the Bank of the Commonwealth of Kentucky, approved the 29th day of March 1820, and contrary to that provision of the constitution of the United States, which inhibits any state from emitting bills of credit, had, on behalf of the said commonwealth, and upon her credit, made various bills of credit, signed by the president of said Bank of the Commonwealth of Kentucky, and countersigned by the principal cashier therein; and thereby promising to pay to the person in each of said bills mentioned, or bearer, on demand, the respective amounts in each of said bills expressed, in money; and the said bills so made and signed by the said president and cashier, the plaintiffs, afterwards, to wit, on the day of the date of the note last aforesaid, for the purpose of circulating the said bills of credit, so as aforesaid made, through the community, as money, did, for and on behalf of the said commonwealth, and for her benefit, and upon her credit, illegally, and contrary to the aforesaid provisions in the constitution of the United States, emit and issue said bills of credit, so made as aforesaid, to the amount of $2048.37, of the said bills, by loaning and delivering the same to the defendant, Briscoe, at interest, reserved and secured upon said loan, for the benefit of the said commonwealth, at the rate of six per centum per annum upon the amount aforesaid; and the defendants, in fact, aver, that the only consideration for which the note last above mentioned was executed by them, was the emission and loan of the said bills of credit, so issued as aforesaid, by the plaintiffs to the defendant, Briscoe. And so they say, the consideration of the said last-mentioned note was illegal, invalid, and in violation of the constitution of the United States; and that the consideration of the note sued on, executed by these defendants, in renewal of the said last-mentioned note as aforesaid, is likewise illegal, invalid, and contrary to the constitution of the United States; and this they are ready to verify and prove; wherefore, they pray judgment, &c.'
To these pleas, the plaintiffs demurred, and the defendants joined in the demurrer. The circuit court of Mercer county gave judgment for the plaintiffs; and the defendants appealed to the court of appeals of Kentucky. In the court of appeals, the following errors were assigned by the appellants. 1. The court erred in sustaining the demurrer of the defendant in error, to the first plea of the plaintiffs in error. 2. The court erred in sustaining the demurrer to the second plea. 3. The decision of the court upon each demurrer, as well as in rendering final judgment against plaintiffs in error, is erroneous and illegal. On the 5th day of May 1832, the court of appeals affirmed the judgment of the circuit court. That court delivered the following opinion:--
'We are called upon in this case, to re-adjudicate the question of the constitutionality of the Bank of the Commonwealth; and its right to maintain an action upon an obligation given in consideration of a loan of its notes. We consider this question as having been settled in the case of Lampton v. The Bank, 2 Litt. 300. If it be true, as contended in argument on behalf of the appellants, that the question is presented on the face of the charter, that case has been incidentally recognised and confirmed by a hundred cases that have since passed through this court. The case of Craig v. Missouri, 4 Peters, has been relied on, as ruling this. We do not think that it does; they are distinguishable in at least one important and essential particular.' The appellants prosecuted this writ of error.
The case was argued by White and Southard, for the appellants; and by B. Hardin and Clay, for the appellees.
White, for the plaintiffs in error.-The suit is brought on an instrument, alleged to be void, as the consideration given for it was a currency prohibited by the constitution of the United States. It was given for the notes of the Bank of the Commonwealth of Kentucky; and the question which is presented by the record, and which is now to be decided by this court is, whether the law of the state of Kentucky establishing the bank, was not a violation of the provision in the constitution of the United States, which prohibits the states of the United States from issuing 'bills of credit.' The case is one of great importance, and the decision of this court upon it, is looked for with deep solicitude. It was before the court at a former term, and was then argued at large. The court directed a re-argument.
The facts on which the plaintiffs in error rely, are fully established by the pleadings. The pleas in the court of Mercer county, state the nature of the institution established by the act of incorporation; and that it had no funds provided for the payment of the notes issued by it; and that the funds provided by the law were never paid to the bank. The plaintiffs demurred generally; and thus the facts stated in the pleas, are admitted. The unconstitutionality of the law is stated in the pleas, and the court of appeals of Kentucky decided on the question thus presented; the case is then fully within the provisions of the 25th section of the judiciary act of 1789.
It will be proper to establish the jurisdiction of the case, before proceeding to the other matters involved in it. The plaintiffs assert, that the charter of the bank is a violation of the constitution of the United States. It is the exercise of a claim by the state of Kentucky, to establish a corporation; which, for the uses of the state, and for its exclusive benefit, and profit, has the authority, by its charter, to issue bank-notes, and to circulate them as money. This, the plaintiffs in error asserted, in the court in which the suit was brought against them, and in the court of appeals, was issuing bills of credit by the state, and in direct conflict with the prohibition of the constitution. The repugnancy of the charter, a law of the state, to the constitution, was alleged, and the decision was against the allegation. The courts of Kentucky, the plaintiffs in error say, misconstrued the constitution, by the decision. The court of appeals expressly say, they are called upon to adjudicate on the constitutionality of the law; meaning, certainly, the constitutionality of the law, as it was alleged to be in opposition to the constitution of the United States. All the decisions of this court on the question of jurisdiction, sustain the right of the court to decide on the questions brought up by this writ of error. These decisions were carefully reviewed at the last term, in the case of Crowell v. Randell, 10 Pet. 368, a reference to that case, is sufficient to sustain the jurisdiction now asserted.
Upon the question, whether this court has decided, that a corporation, such as that which is the defendant in error, in this case, can have a constitutional existence, for the purposes for which it was enacted, has not been decided; it is submitted, that no such decision has been made. The case of the Planters' Bank of Georgia, 9 Wheat. 904; contains no such decision. In that case, the state of Georgia had but a part of the stock of the bank; the bank had an actual capital, and was conducted for the benefit of the whole stockholders. This court held, that a state might become a stockholder, with other stockholders, in the institution; and that by so doing, the bank did not become exempt from suits, on the suggestion that the suit was against the state of Georgia. Nor did the decision of the case of Wister against the same defendants, as in this case, determine that the Bank of the Commonwealth was a constitutional body, because the court sustained a suit against the bank. The charter provides, that the bank may sue, and may be sued. The action of the court in that case, was in harmony with the law. If the state of Kentucky was, as she certainly was, and now is, the only party interested in the bank; yet a suit authorized by her own law could be brought against the bank. The bank has, by its charter, a right to take mortgages for debts due by it; and under a judgment against it, those mortgages might be made subject to an execution or a judgment, obtained against the bank. The process of execution would not, and need not, go against the state.
The question of the constitutionality of the bank, and of the right it had, under the act establishing it, to issue the bills for which the note upon which this suit was given, is now first presented to the court. While it is asserted, that the decision of this court, in the case of Craig v. State of Missouri, 4 Pet. 439, will in all respects sustain the position taken by the plaintiffs in error, that the notes of the Commonwealth Bank are bills of credit; it is admitted, that in that case, the bills of credit issued by the state of Missouri, were different from those issued by the defendants. The obligations of the state of Missouri bore interest; a circumstance to which great importance was assigned by Mr. Justice THOMPSON, who delivered a dissenting opinion in that case.
The Commonwealth Bank of Kentucky was established in 1820, during a period of great pecuniary distress; for which it was, by those who created it, expected to afford relief. While it was declared to be founded on funds provided for it, or assigned to it, by the state, none were delivered to it. The act declared, that certain lands might be paid for by the notes of the bank; it directed the property which the state held in another bank, then in great embarrassment, and which had suspended payment, should be paid to the Bank of the Commonwealth; but the Bank of the Commonwealth had no control over the land, and the property of the state in the old Bank of Kentucky was never made available to the business of the new bank. Thus, the bank had no funds, and all the officers were appointed by the state. They were the agents of the state, to conduct the business of the bank, for the benefit of the state. Its capital was, nominally, $2,000,000; and notes purporting a promise to pay certain sums, were issued and put in circulation, in the form of loans; the state having the profit of the interest charged on the loans. As no funds were in possession of the bank, these notes were taken on the faith and on the credit of the state, exclusively and only.
The intervention of a corporation, by which the notes were issued, did not affect the character of the transaction. If they had been put into circulation by a state officer, it would not be denied, that the state issued them; but there is no substantial or valid difference between such a mode of managing the issues, and that adopted by chartering the bank. The notes were in fact made a tender. The law of Kentucky obliged the plaintiff in an execution, to receive them in satisfaction of his judgment, or to submit to a deferred result of his proceedings against his debtor. The property of the defendant was to be taken at an appraisement, or it could not be sold for a considerable period, if the notes of the Bank of the Commonwealth were refused, when tendered in satisfaction of the debt. Thus, the notes of the Commonwealth Bank were in all respects the same, in substance, as they were in form, 'bills of credit,' prohibited by the constitution of the United States.
The promise to pay, was the promise of the state of Kentucky, by its agent, the president and cashier of the bank; the notes or bills were circulated as money, and they might also, in effect, be made a tender in some cases. It is not essential, that the notes should be a tender, to make them bills of credit. The court are referred to the 44th number of the Federalist, for the views of Mr. Madison, as to the nature of the constitutional provision against the issue of bills of credit; and as to the construction of the provision in the constitution. Bills of credit and paper money are synonymous. The abuse of paper money, during the difficulties of the revolutionary war, and the ruin which its extravagant issue produced, were the causes of the constitutional prohibition.
It is not intended to place the charters of banks, derived from state laws, having a capital furnished by the stockholders, or the notes of such banks, in question, in this case. They may rest in safety on other principles; and the practical construction, given by the states of the Union to the provision of the constitution which is under examination in this case, may put all questions of the validity of such charters at rest.
What is a bill of credit, within the meaning of the constitution? Our courts seem to have considered the interpretation of these terms a matter of some difficulty. 'The term 'bill of credit' seldom occurs in the books,' sys Judge HUGER, in delivering the opinion of the constitutional court of South Carolina, in the case of James Billis v. The State, January term 1822 (2 McCord 15); and the learned judge adds, 'but when used, it is always synonymous with letter of credit, and this appears to be its only technical signification.' In the case of Craig v. Missouri, 4 Pet. 442, the late distinguish and lamented associate of this court, Mr. Justice JOHNSON, says, 'the terms 'bills of credit' are in themselves vague and general, and at the present day, almost dismissed from our language.' In the same case, Mr. Justice THOMPSON says, 'the precise meaning and interpretion of the terms 'bills of credit,' has nowhere been settled; or, if it has, it has not fallen within my knowledge.' 4 Pet. 447. Mr. Justice MCLEAN declares, 'it will be found somewhat difficult to give a satisfactory definition of 'a bill of credit." p. 452.
It would be the height of presumption, in the face of such authorities, to say, there is no difficulty; nevertheless, we may entertain a strong conviction that the terms have a clear and precise meaning. It is evident, that the meaning of the term used in our own constitution, is most naturally to be sought for, first, in our own history. Yet, on the arguments of the question heretofore, only two historical references have been made. We propose to submit references from the history of each state; not merely to show what 'bills of credit' were, but what evils resulted from them. The past mischief is an essential part of the interpretation of the future remedy. By learning what and whence the country suffered, we shall learn what the convention intended to prevent.
Mr. White, submitting to the court a printed argument on the part of the plaintiffs, prepared by Mr. Wilde and himself, after the former arguments of the case; went into a particular examination of the proceedings of the different colonies, afterwards the states of the United States, in relation to the issuing of bills of credit, or obligations for the payment of money, for the use of the several colonies and states; citing from the legislative acts, and from historical works, the provisions of the laws on the subject, and the actions of the governments of those states, in reference to such measures. It was shown by these references, that Massachusetts, New Hampshire, Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina and Georgia had resorted to measures to supply a temporary, and sometimes, a long-continued currency, by issuing 'bills of credit,' 'paper bills of credit,' 'paper bills, called bankbills.'
Nor was the issuing of bills of credit, before the adoption of the constitution, confined to the issues of states; but the term was employed to designate the paper money emitted by congress. The resolutions of congress authorizing the different emissions, were cited from the journals of congress. The issues commenced on the 22d June 1776, and they exceeded $450,000,000. They ceased to circulate as money, on the 31st May 1781; although afterwards bought on speculation, at various prices, from $400 in paper for one dollar in specie, up to one thousand for one. On the 18th September 1786, congress resolved that no payments of requisitions on the states should be received in bills of credit, or in anything but specie. They also resolved, that bills of credit should not be received for postage, and that postage should be paid on the letters when put into the office. 4 vol. Journ. of Cong. 698-9. The effects of this system of paper money were ruinious to the whole community. Specie was driven out of circulation, and all property was placed in confusion, and great deterioration in value. The common intercourse of business was suspended, or carried on with distrust and suspicion. Barter was introduced, and the impediments to all transactions of exchange, became almost insuperable.
It is contended, that bank-bills and bills of credit are, in every important particular, substantially and essentially the same. Mr. White then proceeded to examine the different colonial and state laws, for the emission of bills of credit; asking the court, before the same was made, to note the material points of distinction supposed to exist between bank-bills and bills of credit. He said they were: 1. Bank-bills are not issued directly by the state. 2. They are not issued on the mere credit of the state. 3. A certain fund is pledged for their redemption. 4. They are not legal tender. 5. They are payable in specie.
The court are to remark the character of the bills provided for by the different acts intended to be cited. In reference, especially, to those points of supposed distinction, it will be found: 1st. That the bills of credit were issued no more directly by the state, than the bills of the Commonwealth Bank of Kentucky. 2d. That the bills of credit were very frequently not a legal tender. 3d. That the bills of credit were sometimes payable (nominally) in specie. 4th. That the bills of credit were rarely issued on the mere credit of the state. 5th. And that, almost always, a certain fund was pledged for their redemption. If the court, by this scrutiny, find such distinctions disappear; as no others have been taken, it will result, that, essentially and substantially, the bills of the Commonwealth Bank of Kentucky and bills of credit, are the same. And by making it in reference to each act as it is read, the trouble of instituting a comparison of each law on each point, afterwards, will be spared both to the court and counsel.
Mr. White then cited the various acts of the several states, providing for the issuing of such 'paper money,' 'obligations,' 'bills of credit,' or 'bank-bills,' and 'notes,' and 'treasury notes.' If it be contended, then, he said, that the notes of the Commonwealth Bank of Kentucky are not bills of credit, because they are not issued or emitted directly by a state, we answer: 1st. That in every instance, the ante-revolutionary bills of credit were prepared, signed and issued by a committee, commissioners or trustees. 2d. That as a state can act only through her agents, it follows, what she does through her agents she does herself. 3d. We avail ourselves of the forcible expressions of one of the learned judges of the court, in the case of Craig v. Missouri (Mr. Justice JOHNSON), who, though dissenting from the judgment of the court in that case, on other points, was in our favor on this.
'The instrument (the constitution) is a dead letter, unless its effect be to invalidate every act done by the states, in violation of the constitution of the United States. And as the universal modus operandi by free states, must be through their legislature, it follows, that the laws under which any act is done, importing a violation of the constitution, must be a dead letter. The language of the constitution is, 'no state shall emit bills of credit;' and this, if it means anything, must mean, that no state shall pass a law which has for its object an emission of bills of credit. It follows, that when the officers of a state undertake to act upon such a law, they act without authority; and that the contracts entered into, direct or incidental, to such their illegal proceedings, are mere nullities.' 'This leads to the main question: Was this an emission of bills of credit, in the sense of the constitution? And here the difficulty which presents itself, is to determine whether it was a loan, or an emission of paper money; or perhaps, whether it was an emission of paper money, under the disguise of a loan.' 'There cannot be a doubt, that this latter view of the subject must always be examined; for that which it is not permitted to do directly, cannot be legalized by any change of names or forms. Acts done in fraudem legis, are acts 'in violation of law." (4 Pet. 441.)
It cannot, we presume, be doubted, that the constitution was intended to prohibit all those paper substitutes for money, whatever were their particular forms or shades of difference, which had, before that time, gone by the general name of bills of credit. It intended to make this a hard-money government; perhaps, entirely so; certainly, so far as the states were concerned. If, by omitting some, and inserting others, of the forms, peculiarities, properties or attributes of the different bills of credit issued before the adoption of the constitution, one could be formed dissimilar in many important particulars from any which had ever yet been issued; we humbly contend, notwithstanding such variation, it would still be a bill of credit, within the meaning of the constitution. May we not ask, then, in what essential particular do the the bills of the Commonwealth Bank differ from the ante-revolutiouary bills of credit? The latter were issued or 'emitted,' to answer the purposes of money; a circulating medium, a measure of value, and an instrument of exchange. So were the former. Do the bills of credit pledge a particular fund for their payment? So do the Commonwealth Bank. The bills of credit were receivable in all debts due the public. So were the notes of the Commonwealth Bank. The bills of credit were sometimes, though not always, a legal tender. The bills of the Commonwealth Bank were a qualified tender. If the plaintiff did not receive them, his execution was stayed. The bills of credit were issued through the instrumentality of agents, for the benefit of the colony. The bills of the Bank of the Commonwealth were issued by agents, appointed by the state, for the benefit of the state.
Upon the term 'emitted,' there cannot, in this case, be raised a question. With respect to a loan-office certificate, which might, perhaps, be bona fide given upon an actual loan, as the authentic evidence of the creditor's right, and of the state's obligation, a question might be raised, whether such an instrument could be said to be 'emitted,' as a bill of credit is emitted, that is, to act as a substitute for, and perform the functions of money. But that the bills of the Commonwealth Bank were so intended, does not admit of a doubt. It is so expressed in the preamble.
If it be contended, as by the constitutional court of South Carolina, that this is not a bill of credit, because a particular fund is pledged and set apart for the redemption of the bills, we answer: 1st. These funds are the revenues of the state; the pledge is the faith of the state. These resolve themselves, at last, into the credit of the state. Credit is given to her, because of her faith and revenue. If she break her faith, or squanders her revenue, she loses her credit. 2d. Almost all the ante-revolutionary bills of credit had funds pledged for their redemption. Lands or taxes were always set apart as a sinking fund. Yet the bills of credit, so secured, were found as mischievous as the rest, and in the constitution, there is no exception; the denunciation is general as to all bills of credit.
The other distinctions taken at different times are: That these are not to be considered bills of credit, because they are redeemable on demand. The term of the credit cannot make a difference, whether it be a day, ten days, or a year. The promise to pay is the essence of the contract. It is the promise which obtains credit, and credit is given to the promise. The bills of credit issued by many of the colonies before the revolution, were, in fact, payable on 'demand.' They admitted the debt to be due by the colony. The bill was to be as money, to the amount of its contents, and to be accepted in payment, &c. See forms of these bills in the Laws of Connecticut, 1709, 8 Ann., p. 145; Laws of Rhode Island, 1710, 9 Ann., p. 60; Laws of Massachusetts, 1702, 1 Ann., p. 171; Laws of Pennsylvania, 1709, 8 Ann., pp. 230, 231.
We have now shown that, substantially and essentially, bills of credit and bank-bills are the same. We have shown that all the supposed distinctions are fallacious. That bank-bills are issued by agents of a state, and bills of credit were issued by agents of the states, which can never act but by agents; and the only difference is, that the agents are called by different names. That the bills of credit were not always a legal tender; that they were not issued on the mere credit of the state; that they had almost always a fund to support them; and that they were frequently payable in specie.
The prohibition in the constitution was intended to secure the future against the evils of the past. The remedy was intended to be co-extensive with the mischief. It was intended to reach not names merely, but things also. The object was not merely to prohibit those particular kinds of paper currency, which had heretofore been issued or emitted by the colonies or states; but everything which, up to that time, had borne the name, or which should thereafter possess the character, assume the place, and be within the principle and mischief of bills of credit.
Still it is contended, the terms are not identical: it is said, we have not shown that bank-bills and bills of credits have ever been used as synonymous or convertible terms. We have shown, that the things are the same. But it is insisted, that the names are different. It will be shown, then, that there is no difference even in name; that bank-bills and bills of credit are, or at least were, once, synonymous. The requisition is somewhat hard, but we will attempt it. Bank-bills are bills of credit. It is not necessary that on the face of the note, it shall be called a bill of credit. In its form, it is a promissory note. The paper money, before the adoption of the constitution, was not on its face called a bill of credit, it was in various terms, a promise to pay money; but in all the legislative acts creating them, they are called bills of credit. It is demonstrated, therefore, that, in order to make a particular instrument a bill of credit, it need not be so denominated on its face.
But the bank-bill is, in form, a promissory note. Where do you find promissory notes called 'bills of credit?' Promissory notes and bills of exchange, or negotiable paper, generally, as it appears from Malyne, were originally called bills of debt, or bills obligatory. They were called bills, though, from the form given, it is evident they were notes. They were denominated bills of debt, as being evidence of indebtedness. But, subsequently, either because they were not always evidence of debt, but were generally on time, they came to be called bills of credit. They were also called bills obligatory; though it is apparent, from the form and context, that they were not sealed. Indeed, the seal belonged to the common law, rather than the law-merchant. Its use was for those who could not write; which merchants usually could do, though barons could not. The constitutional court of South Carolina, then, are mistaken, when they say 'the term 'bill of credit' seldom occurs in the bonds, but when used, is always synonymous with letter of credit; and this appears to be its only technical signification.' 2 McCord 15.
Some old books do, indeed, give the form of a letter of credit, which they call a bill of credit. Postlethwaite's Dict., tit. Bill of Credit; 4 Com. Dig. tit. Merchant, F. 3. But Malyne gives a similar form, and calls it, what it has always since been called-a letter of credit, not a bill; while the term 'bill of credit' might, with the least industry, have been found by the constitutional court in a hundred places. McPherson's Annals of Commerce, vol. 3, p. 612, in the library of congress. 'This year (1683), Dr. Hugh Chamberlain, a physician, and one Robert Murray, both great projectors, made a mighty stir with their scheme of a bank, for circulating bills of credit, on merchandise to be pawned therein, and for lending money to the industrious poor, on pawns, at six per cent. interest; yet it came to nothing.' Mr. White referred to a number of authorities in mercantile treatises, and historical and other works; to show the origin of bills of credit. Many of these treated of bank-bills, bills of exchange, promissory notes, bills obligatory, and instruments of that description, 'as bills of credit.' They were substituted for specie, for convenience, and often to supply a deficiency of specie. Proceeding in the argument, he said:
By this time, it appears to us, we have gone far towards showing that bank-bills are not merely, substantially and essentially, bills of credit; but that they are identically the same. Bills of credit is the old name for bank-bills. The longer name has worn out of use, from a philosophical principle in language, which seeks conciseness, perpetually. Men of business never use three words, habitually, when the same thing can be expressed by two.
Our proofs, however, are not exhausted. Let us interrogate the banks themselves. What are their bills called in those charters, from whence they derive the right to issue them? The 28th section of the first charter of the Bank of England, 5 & 6 William and Mary, c. 20, § 28, speaks of the paper to be circulated by the bank, as 'bills obligatory or of credit.' The charter of the Bank of Pennsylvania of 1793, uses the same terms. In the charter of 'the New Jersey Manufacturing Company,' granted in 1823, the terms 'obligatory or of credit,' are used. In the charter of the Bank of Virginia, 2 Revised Code 73, § 13, 'bills obligatory or of credit,' are mentioned. So also, the same terms are employed in charters of banks in North, and in South Carolina. The terms, 'bills obligatory or of credit,' are employed in the charter of the Bank of Augusta, granted by Georgia. Prince's Dig. 32. So also, in the charter of the 'Planters' Bank' (Ibid. 39); and in that of 'The State Bank' (Ibid. 43); the terms are used in reference to the paper issues of those institutions.
If it be contended, that these terms refer to bills under the seal of the banks, and to letters of credit given by them; the answer is obvious. There are no other clauses in their charters which can be tortured into an authority to issue bills at all. If 'bills obligatory and of credit' do not signify bank-notes, the banks have been issuing notes without any authority whatever. Judicial decisions have treated the notes for the payment of money as bills of credit; 2 McCord 16-18; Craig v. State of Missouri, 4 Pet. 425.
With respect to the third point of the appellees-that the bank may be unconstitutional, and yet the appellants bound to pay their note; the answer is obvious. A contract made contrary to law is an act in fraudem legis. It is consequently void, and will never be enforced in the courts of that country whose laws are attempted to be evaded. This principle is so well settled, as to be stored away among the established maxims of jurisprudence. The case of Hannay v. Eve, 3 Cranch 247, is as strong a one as can be well imagined; Craig v. Missouri only follows up that decision. 4 Pet. 425.
B. Hardin, for the defendants in error, stated, that he was present when the law was passed by the legislature of Kentucky; and although he did not approve of it, he was a witness to all that took place at the time of its enactment. There had been large importations of goods into the United States, after the late war with Great Britain; and many persons in Kentucky had become embarrassed, by having made large purchases of those goods. In this state of things, remedies and expedients were resorted to, which, like all quack medicines, failed in their effects; and left the disease where they found it, or in a worse condition. It has been said, that the old colonial laws which provided for the issuing of a paper currency, were resorted to by those who drew the law establishing this bank. This, most probably, was not the fact. The framers of the law intended to provide for the issuing of paper by the bank; and they used language which would carry their object into effect; they did not know of those laws; certainly, they did not resort to them. The purpose of the legislature, in establishing the bank, was to give to it a substantial capital, competent to discharge all the liabilities it might assume; a capital as sufficient as could be provided for any institution for banking purposes. By the ultimate redemption of all of the paper of the bank, the sufficiency of the capital was proved. This is fully shown by the provisions of the 17th section of the law. The lands of the state, east of the Tennessee river, a large and a valuable body, which, by the agreed line between the states of Kentucky and Tennessee, amounted to about 2,000,000 of acres, and also other lands of great value, owned by the state, were made liable for the notes of the bank. In money, these lands were worth from $5,000,000 to $6,000,000. All the interest the state had in the old Bank of Kentucky, was pledged, by the law, for the redemption of the obligations of the bank. The amount of paper allowed to be issued, was not equal to that permitted to other banks, in proportion to the security given for such issues. The objection to a want of capital of this bank is, therefore, without foundation; for an equal capital or property equal in amount as a security for the operations of the institution, has not, in any instance, been exceeded.
It is said, the paper of the bank fell below par. This is not in the record; and if that fact should be allowed to have an influence, other matters should be introduced. The value of the notes was diminished by the conduct of the borrowers of the bank; who had used them at par for their private purposes, and who had used them for their full value. No measures, which could bring the notes into discredit, were attributable to the bank; and the amount of the paper issued was constantly in progressive diminution, by its being destroyed when paid in for taxes and for lands. The laws of the state directed that the notes of the bank should be received for the public lands, in the same manner, and as of the same value as the notes of other banks, paying gold and silver. The receivers of the proceeds of the sales of the public lands, south of the Tennessee, were directed to take the notes of the bank for lands. Pamphlet Laws of Kentucky of 1824, § 8. Under the operation of these provisions, there was received for taxes, and for lands, by the bank, and by the old State Bank of Kentucky, the notes of the Bank of the Commonwealth, to the amount of nearly $6,000,000, which were cancelled and burned. In this manner, almost the whole of the issues of the bank have been returned to it; and it is believed, that before the suit now before the court was brought, all the paper, with the exception of about $40,000, has been returned to the bank. Paper of the bank, to the amount of about $40,000, cannot be found, and is supposed to be irretrievably lost. Thus, all the notes, with the exception of those lost, have been redeemed.
By numerous sucessive acts, the legislature of Kentucky directed that the notes of the bank, as they were redeemed, should be burned, and this was done; cited, Session Laws of Kentucky, of 1825, 1826, 1827, 1830, 1832. After all the notes were thus satisfied, or redeemed by other banks established under charters from the state, the public lands, which had been pledged for them, were distributed for school and road purposes.
The objections to the charter, on the ground of there having been no capital provided for the bank, does not, therefore, exist; and the question which is alone presented for the consideration of the court, is, whether the bank was constitutional, as the state of Kentucky was the only corporator. It differs from many other banks in this only; the state alone is the corporator, or stockholder. In many other banking institutions, states are joint stockholders and corporators.
In the charter of the Bank of the Commonwealth, there is no pledge of the faith of the state for the notes issued by the institution. The capital only was liable; and the bank was suable, and could sue. The bank was sued; and in the case of Bank of the Commonwealth v. Wister, 4 Pet. 431, this court held, that as against the corporation, the suit was well brought. If it is unconstitutional for a state to be a corporator, how can she be a corporator for a part of the capital of the bank? If the state cannot alone be a corporator to issue paper, she cannot be in part such; and the constitution of the United States is violated, as well by the issue of notes for one dollar, as for one thousand; by the issue of notes, of which a state is one among many of the corporators bound to pay them, as well as if she had alone become bound for their payment. What is the difference between the state being a corporator, or taking a bonus for establishing a bank; and authorizing the corporation so erected, to issue notes? The sale of a charter by a state, for a bonus, is the sale of the privilege to issue notes; which, if the state had not, she could not grant; she gives the bank thus established power to issue notes for her benefit; a benefit she has secured in advance by the payment of the bonus to her.
It is submitted, that if the notes of the Bank of the Commonwealth are 'bills of credit,' and the issue of them was prohibited by the constitution of the United States, the notes of all state banks are equally prohibited. Before this question is approached, it is desirable to place it before the court, on its true grounds. The provisions of the constitution are:--'No state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold or silver coin a tender; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.' Art. I., § 10. The powers granted to the government of the United States, of coining money, are exclusive; so are the powers to establish post-offices and post-roads; and in addition to the grant of these powers, there are the express inhibitions to the states, which forbid their coining money, making tender laws and issuing bills of credit.
It is claimed, that making them a tender, is a portion of the character of a bill of credit, as the same was intended by the constitution. Each prohibition is separate. If the states could make anything a tender but gold and silver coins, all would be confusion. What was meant by 'a bill of credit,' is not stated in the constitution, and is thus left undefined; we must look for the meaning of the terms elsewhere. We must look to the uses of the terms in past times; and on this search, we find great difficulties, from their different application to different obligations for the payment of money, and the peculiar characteristics of those obligations, when issued by states or political communities. We look to colonial legislation, and to the practices of states; and we are unable to ascertain from these, the true sources of information, with accuracy, what those who framed the constitution intended. Sometimes, the bills issued under state or colonial authority were made a tender, and sometimes they were not. This is said by Mr. Chief Justice MARSHALL, in the case of Craig v. State of Missouri. In the first issue of bills of credit by Massachusetts, they were not made a tender in payment of debts; afterwards, this character was expressly given to them. In South Carolina, they were made a tender. 2 Ramsay's Hist. of South Carolina, 164.
But there was a universal feature in all the bills of credit, issued before the formation and adoption of the constitution of the United States. The faith of the state, or of the government which issued them, was always pledged for their redemption. This was ever the fact. Another feature and characteristic of these bills of credit was, that the state always issued them in its sovereign capacity, and no capital was pledged for their redemption. They were never issued by, or in the name of, a corporation. The bills of the Commonwealth Bank were issued by a corporation, subjected to suits, and capable of suing.
This is the first time this court has been called upon to fix the precise meaning of the words of the constitution under consideration; and they are now, by their decision, to save or take from the states a little of their remaining sovereignty; and at the same time preserve and faithfully guard the constitutional rights of the Union. The court, in exercising their powers, will do so, as sound judges and lawyers; and as sound statesmen and politicians. The plaintiffs in error ask to impose restraints on the states, which will deprive them of powers essential to their prosperity, and to the business of their citizens.
In order to arrive at a true construction of the constitutional provision, it is proper to look at the mischiefs proposed to be remedied by its introduction into the instrument. These were the excessive issues of paper, and authorizing them to be made a tender. The great evil was making the bills a tender; without this, it was a voluntary act to accept and to refuse them; and no injury, but such as was freely consented to, could ensue. This should be the test of a bill of credit, as intended by the constitution. A state can borrow money; and give a note or bond, or a certificate, transferrible, for the sum borrowed. The amount of the notes or bonds given for a loan made to the state, may be determined by her and the lenders; and they may circulate as the holders think proper. The form may be precisely the same as that of any other bank-note or bond, or evidence of debt; and she may pledge her faith and her property for the payment of such engagements. If notes or bonds given by a state are not made a tender, they will not be said to be bills of credit.
Another part of the case is deserving of the consideration of the court. The notes given to the bank by her debtors, and by the law authorizing them to be taken, are made payable absolutely. Suppose, the bank to be unconstitutional, yet the notes given by individuals, and held by the bank, must be paid. They were given for value, by those who gave them; and they used, for the purpose of purchasing lands, the notes received by them from the bank. This was a valuable consideration for the contract, and imposes an obligation to pay the notes, independently of any other matter. Whatever is a benefit to one, or an injury to another, is a consideration.
This court has no jurisdiction of the case, under the 25th section of the judiciary act. The question of the consideration given by the bank for the notes, and the question of the constitutionality of the law, were both before the court of appeals. That court could have given the judgment which was given, without deciding the constitutional question. The construction of the constitution of the United States was not necessarily involved in the judgment given in this cause. This is an essential feature in every case brought here under the judiciary act of 1789.
Clay, also of counsel for the defendants in error, said, he was gratified by the learning and research of the counsel for the plaintiffs. He had gone into an investigation of commercial, historical and statutory authorities, which were highly interesting; but were not considered, by him, essential to the decision of the case before this court.
He had, when the bank was established, concurred with many others, who were, with him, citizens of the state of Kentucky, in the opinion, that it was impolitic and inexpedient; and its inexpediency is now generally admitted. But among those who promoted the establishment of the institution, none went further than some of those who now come before this court to ask to be relieved from the obligations they entered into with it; and for which they received and used the notes of the bank. Those notes have all been redeemed; they fully answered the purpose of those who borrowed them. They were of value to them; they solicited them from the bank, and voluntarily received them. It is doubted, if the cause of morals would be most promoted, by allowing a release from their contracts, of those who are before the court; or by sustaining the bank, even if it is unconstitutional.
The old Bank of Kentucky had a capital of $1,000,000; one-half of which was reserved by the state, which the state afterwards paid for. Besides this property of the state, lands were pledged, and taxes were payable in the notes of the Bank of the Commonwealth. Loans on mortgage of real estate were authorized; and these mortgages became a substitute for real property, and could be made liable for the debts of the bank. The bank had also extraordinary powers for the collection of debts due to it. Thus, full provision was made for the preservation of the solvency of the institution.
The depreciation of the paper of the bank was gradual, and afterwards became very great. But it is proper to state, that the credit of the paper afterwards rose, and became equal to par; and in credit as good as that of the notes of any other moneyed institution; so it continues. The depression of the value of the notes of the Bank of the Commonwealth, was similar to that of all other banks which suspended specie payments. It was not greater than the notes of other banks, in similar circumstances.
Two questions are presented in this case. 1st. Were the notes issued by the state of Kentucky? 2d. If so issued, are they bills of credit, within the meaning of the constitution of the United States? The plaintiffs in error must establish both of these propositions; if they do not sustain both, they will fail in their application to the power of this court. The constitution requires both properties to be features in the note which formed the consideration of the obligation upon which the suit was brought against the plaintiffs in error.
1. The state of Kentucky did not issue these notes, they were issued by a corporation. This point has been already decided in the case of Wister, 2 Pet. 318. The defence set up in that suit was, that the bank and the state of Kentucky were the same, and that the state was alone the defendant in the suit. That being so, the suit could not be maintained, and the court had no jurisdiction. They very question in the case was the identity of the bank and the state; and whether the emissions of notes were by the state or by the bank. This is expressly declared by Mr. Justice JOHNSON, in the opinion of the court.
It is not important, in considering this case, to inquire what portion of the sovereign power of the state was given to the bank, by the appointment by the state of the officers who conducted it. The number of the officers was of no consequence. If the argument of the plaintiffs in error is good as to the delegation of all the power, it is good as to part; as, if the state is represented by the officers of the bank in any extent, it will be sufficient, so far as this point is under consideration, to make the state the actor in the operations of the institution. The defendants in error must show, and they can do so, that the issues of the bank were not those of the state. It is contended, that the whole of the operations of the bank were those of a corporation, acting under the law of its creation; and managing funds provided and set apart by distinct and positive appropriations, for the security of its operations; in which the state was not acting or interfering.
It is said by the plaintiffs in error, that the issues of the notes by a corporation created by a state, is but an indirect action by the state, of that, which the constitution of the United States prohibits to be done, directly. This is not admitted. If the position assumed is true, all banks incorporated by states are obnoxious to the same censure, for all derive their powers under state laws; and if the rule asserted can be stretched to include the Bank of the Commonwealth, it will take in all banks; it will operate to the same extent on all. The argument of the counsel for the plaintiffs in error goes to show that all state banks are unconstitutional. But you cannot stop at state banks. Other obligations for the payment of money form a part of the circulating medium. Are not bills of exchange authorized by state laws, and their payment enforced by state laws? They are thus brought into circulation, and they form a part of the currency of the community. So, the notes of a private individual owe their credit to the laws of the state in which they are issued, as those laws compel their payment by the maker. Thus, these issues are founded on state laws. The argument then goes too far. It should stop at the plain intention of the constitution; and at the object it proposed to accomplish.
What are the principles and the rules which should govern the court in this case? This court, in the Georgia Case, say, that only such a violation of the constitution as is plain and palpable, should call into action its powers under the provisions of the instrument. The language of the constitution is that which is in common use, well understood by the community and known to those upon whom it was intended to operate; nor should the aid of foreign laws or usages be called on for its interpretation. This is not necessary, and would involve the proper understanding of it, in difficulty and in doubt. The constitution is to be construed with a view to these principles. The proper and certain interpretation will be adopted, whatever will be the consequences. Courts have sustained an interpretation of laws which had been given to them, although they have regretted their obligation to do so. Will not this court limit the constitution to its plain meaning, and its evident interpretation? If viewing its provisions by these rules, defects are found in it, the court has no power to remedy them; but ample powers for the purpose are provided in it. The application of the rules which are applied to the construction of statutes, is protested against. The constitution is not to be interpreted by such rules; and the framers of the instrument, and the people when they adopted it, did not intend to subject it to the exercise of the same powers of interpretation, which courts properly exercise over legislative enactments.
The constitution prohibits the issuing bills of credit by states, and this does not apply to corporations, nor to any other issuing but by the sovereign action of a state. This is the clear and plain language of the constitution; and confined to the action of a state, there is no difficulty. In the case of Craig v. State of Missouri, the issues were by the state, by its officers specially and expressly authorized and commanded to issue the paper. Whatever doubts were entertained upon the question whether the issues were bills of credit, none existed, that the paper was that of the state. No person responsible or suable was put forth, when the obligations were given.
The counsel for the plaintiffs has failed to show that the notes of the Bank of the Commonwealth were issued by the state of Kentucky. The notes were the notes of a corporation. The name of the state is not mentioned in them. The corporation only binds itself for their payment; the funds of the corporation were only answerable for the redemption of this pledge. How, then, can it be said, they were issued by the state, and that they were bills of credit of the state? Nothing appears in their language, nothing in the emission of them, to sanction such an assertion.
If a state owns the whole or a part of the capital of a bank, she may be a corporator. It cannot be said, that she may be a corporator for part of the capital stock, and cannot be for the whole. On what principle can this limitation be established, and shall it be ascertained? A bank may be constitutional, and its operations legal, until a state shall take an interest in its capital; and its unconstitutioanlity will begin and be complete, when a state shall assume the full ownership, by a fair purchase of the stock of its whole capital. Such a change of character cannot be sanctioned; it can never take place. The fact that a state may own a part of the capital of a bank, as was held by this court in the case of Planters' Bank of Georgia; that a state may become a corporator in a bank; is decisive of the right of a state to make herself a sole operator. The decision of this court in the case last referred to, and in the case of Wister, cited from 2 Peters, has closed all doubt upon this point.
Are the notes of the Commonwealth Bank bills of credit? The argument and the authorities relied upon by the counsel for the plaintiffs in error, have been listened to with profound and anxious attention, for the purpose of finding a definition of a bill of credit. This has been done without success. The definition which is submitted to the court, on the part of the defendants in error, which, if any can be given, seems to approach nearer to the meaning of the constitution than any other which has been offered, is, that it is a bill resting on credit alone, with no other basis to support it. The forms of bills of credit have varied; but the faith of the state was always pledged for their redemption or payment. The convention which formed the constitution of the United States had the evils of the paper currency, issued during the revolutionary contest, before it; and the provision was introduced in reference to those evils, and to the state of things which they produced. Under these views, they intended, by a bill issued on credit, one for the payment of which there is no adequate provision; resting on public faith for its redemption. But if we cannot get a definition, we can look at what were the properties of the paper currency of the revolution, and see if they were the same as the notes of the Commonwealth Bank of Kentucky. 1. That currency was issued by and in the name of the states, individually, or by congress. 2. It performed the office of money, or of a circulating medium. 3. There existed no compulsory power to enforce its payment. 4. There was no adequate provision for its redemption; and, in fact, it was not redeemed. All the mischiefs of a paper currency are prevented, that can exist, if the payment of it in gold or silver may be enforced; and nothing of this kind existed in reference to the revolutionary bills of credit.
If the notes of the Commonwealth Bank were of this description, the defence will be abandoned. They were money, and they performed the offices of money. They were subjected to the power to compel their payment, by an appeal to the tribunals of the estate; and, as was done in Wister's Case, by a successful appeal to the courts of the United States. The paper issued by the bank is described in the 17th section of the act of the assembly. It was expressly declared, that all the notes should be redeemable in gold and silver. In the first section of the act, the bank is declared to be a corporation, capable of suing and of being sued, and of being compelled to pay their notes, undeniably, in gold or silver. In every instance of the revolutionary and ante-revolutionary paper, there was an inadequacy of funds. These statements show, individually, that there was no coincidence between the notes of the bank, or the bills of credit of the revolution; except only that both performed the office of money. These are bank-notes, redeemable, and redeemed, by specie, and payable on demand, and they are not bills of credit. Such notes as these were, are the representatives and evidence of specie; and such a note is like a check for the payment of money. But bank-notes were not the paper of the revolution; and the words of the constitution do not comprehend them. It is, then, clearly established, that those notes were not bills of credit, and were not affected by the constitutional prohibition.
It is not true, that the states which issued the bills of credit before the adoption of the constitution, could be sued for those bills. The citizens of other states could institute suits, but not their own citizens; and thus the limited liability of those states is not a feature like that which existed in the notes of the Commonwealth Bank. The larger portion of all the bills of a state would be held by its own citizens, and as to that portion, no liability to suit existed. The Commonwealth Bank of Kentucky is, like the banks of other states, created for the benefit of the state and its citizens; and having provision made for the full payment of its obligations, and subjected to suits; and all its bills and notes have been redeemed. Although, when other banks suspended specie payments, their notes were, temporarily, bills of credit; yet the liability of the bank to suits for the sums due by them, gave them a distinct character.
The day will be disastrous to the country, when this court shall throw itself on the ocean of uncertainty, and adopt an interpretation of the prohibition of the constitution which will apply to a constructive bill of credit. The large and prosperous commercial operations of our country are carried on by bills of exchange, notes, and bank-notes, redeemable in specie, and on which suits may be brought, should they not be paid according to their tenor. The credit of all such bills may be brought into question, should the court decide this case against the defendants. Keep to the plain meaning of the terms of the constitution, and do not seek, by construction, to include in its prohibitions such paper as that which is brought into question in this case, and all will be safe.
Southard, for the plaintiffs in error.-There are two questions, which it is not proposed to discuss. They are, 1. Has the court jurisdiction of the case? The plea, in words, denies the constitutionality of the law of Kentucky, creating the bank. The jurisdiction of the court is therefore apparent upon the record, and the case in 10 Pet. 368, carefully and clearly reviews all the decisions on this point. 2. If the law be unconstitutional, is the contract void? It is understood, that the opinion of the court in Craig v. Missouri, was nearly unanimous, in affirming the illegality of such contract. I cannot persuade myself that it is proper, for me, to attempt to sustain by argument, what this court has so recently decided. To suppose that it will alter its opinion, from year to year, or change its decisions upon such question, when there happens to be a change of its members, would not be respectful to such a tribunal; but it would, if it were true, justify the application to our country, of the truth, misera est servitus, ubi lex aut vaga aut incognita est.
Nor shall I postpone my argument to combat the allegations of fraud and wrong against my clients. Such charges are easily thrown out, and are not unfrequently used to aid in legal discussions, although very inappropriate to such discussions. They cannot, here, be met by evidence and explanations; cannot be persuasive and controlling upon the judgment of this court; and are no more applicable, in this case, than in all others, where a defendant has received money, and, for just cause, refuses to refund it. They might easily be retorted on the adverse party, but I do not feel the necessity of doing it. There is enough in the constitution and laws to justify my clients in claiming the judgment of the court, and to them I apply my observations.
I am to maintain, that the law of the state, entitled 'an act to establish the Bank of the Commonwealth of Kentucky,' approved 29th November 1820, was a violation of the constitution of the United States; and its bills were bills of credit, within the prohibition of the constitution. There are two provisions in the constitution which are connected with, and control this subject. The one gives power to congress; the other restrains the power of the states. Art. 1, § 8, pl. 5: 'Congress shall have power, &c., to coin money, regulate the value thereof, and of foreign coins; and fix the standard of weights and measures:' and pl. 6 adds, 'to provide for the punishment of counterfeiting the securities and current coin of the United States.' This gives the power to the Union. The 10th section of same article declares, that no state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. This restrains the authority of the states.
The phraseology and form of expression in these clauses of the constitution deserve attention. They are similar, both in the grants of power to one portion of our government, that of the Union; and the restrictions upon the other, that of the states. And as the phraseology and form of expression are the same, the construction must correspond. Each power and each restraint is separate and distinct from the others; although they were combined in the same sentence, simply, because they were of the same nature and character. Thus, 'congress may coin money;' this is one power, substantive and different from the rest. 'May regulate the value thereof, and of foreign coins,' is another power; 'may fix the standard of weights and measures,' is still another. Each may be exercised without the rest. Congress may coin money, without regulating the value of foreign coins, or fixing the standard of weights and measures; so it may do either one or both of the two latter, without the former. They are, and were intended to be, separate acts of the government; one or all of which might be performed, at such times and under such conditions, as the discretion of those who administered it should select. The nature of the acts and form of expression, both require this understanding and construction of the instrument. The same remark applies to the restrictions upon the states, in the 10th section. Taking the part of it which is directly involved in this discussion, we see that they may 'not coin money.' That is one power, which, as independent states, they possessed, before their union; but which is now denied to them. They may not 'emit bills of credit.' That is another power antecedently possessed and exercised by them, which is now forbidden. They may not 'make anything but gold and silver coin a tender in payment of debts.' That is a third power, frequently practised, but now prohibited. These powers, though of the same general character, and affecting the same interests, were separately used by the states. They might coin money, without emitting bills of credit, or making anything but specie a legal tender. They might and did emit bills of credit, without coining money or creating a legal tender. They might, if they had so chosen, have created a legal tender, without coining money or issuing bills of credit. The acts were distinct in their nature, and separately performed; but two, or all of them, might have been performed at the same time, and by the same act of legislation. The framers of the constitution, thus regarding them, united them in one sentence; but clearly restrained each of them, whether combined or disunited, in the action of the states; and they framed their prohibition in the same mode and form as they granted the correlative powers to the general government.
In construing the instrument, therefore, we must apply the same principles to both clauses. We must keep the acts separate; and the rules which we apply to the grants, we must apply also to the restrictions. If, in the authority to coin money and regulate the value of coins, we find full and exclusive control on the subject given to congress; we must also find in the restrictions, complete restraint from the exercise on the part of the states. The propriety of this might be enforced, and be illustrated, by various examples in the constitution itself. To coin money, then, is one power; to emit bills, a second; to make a tender, a third: in their nature, and in the language of the constitution, distinct and independent of each other. And the restrictions upon the states apply to each as a separate act, or exercise of power.
The court will perceive my object. The powers to emit bills of credit, and to make a tender, have been treated, in argument, as if they were one and the same thing; and it has been urged, that the emission of bills of credit which was forbidden, was that emission only which was connected with, and received its character from, the fact, that the bills were made a tender; and that unless they were made a tender, their emission was not forbidden. There is nothing in the words and phraseology of the constitution, nor in the nature of the acts, to justify or sustain the argument. A state may violate one or both of these restraints, and its legislation will be void, because unconstitutional. It may issue bills, and yet not require that they shall be received in payment of debts. It may not issue bills, and yet may require something like specie to be received, by its citizens, in discharge of debts. Both would be improper, and equally so. In practice, the two acts have not been the same. Previous to the revolution, all the states issued bills of credit. In a proportion of the cases, they were not made a tender. A reference to the books, on this point, has been made, and need not be repeated. This court, in 4 Pet. 435, stated the fact with historical accuracy. The general government has also issued bills, without making them a tender. The treasury notes of the war of 1812, were bills of credit, but they were not a tender. The government had authority to issue them; its necessities justified their emission. But it did not require that they should be received by the people of the United States in payment of debts. Will it be seriously debated, that they were not, therefore, bills of credit; and that, if the states had issued them, they would have been constitutional?
The plea in the case before the court, puts in issue the constitutionality of the whole law; and, if it be found to violate either of the prohibitions, it must be declared void. It could not authorize the issuing of bills of credit by the state; nor could it make either the bills issued, or anything else, but specie, a legal tender.
That the view presented is in conformity with the opinions of those who best understood the constitution in its early days, I refer to the Federalist, 193; the number written by Mr. Madison. If a different opinion is conveyed in his letter to Mr. Ingersoll, which I do not admit, it can only be regretted; and we must appeal from the inattentive commentator, to the constitutional lawyer, sitting in judgment, when every faculty is awake. I refer also to Craig v. Missouri, 4 Pet. 434, where the chief justice, for the court, draws the clear distinction; and the dissenting judges do not deny it.
I might, then, consider myself as already relieved from one difficulty which has been interposed in this cause. But I venture to urge a further consideration. The separation of all these powers of coining; issuing bills; making legal tenders; fixing standards; and the bestowal of them on the Union, to the total exclusion of the states; was indispensably necessary to accomplish the great ends for which the constitution was formed. Its leading object was to make the people, one people, for many purposes; and especially as to the currency. One, so far as to the high immunities and privileges of free citizens are concerned. One, in the rights of holding, purchasing and transferring property. One, in the privilege of changing domicil and residence at pleasure. One, in the modes and means of transacting business and commerce. It intended to break down the divisions between the states; so far, if you please, and so far only, as to remove all obstacles to intercourse and dealing between their respective citizens. To do this, one currency was necessary. The dollar and the eagle of Georgia, must be the dollar and the eagle of Maine. That which would purchase property or pay a debt in Virginia, must purchase property or pay a debt in Massachusetts. Hence, the power of creating and regulating the currency was given to the Union, and withdrawn from the states. One power, the common will of the whole, is to decide what that currency shall be. Congress shall coin money-the states shall not. Congress shall regulate the value of coins, domestic and foreign the states shall not. The authority is fully and absolutely given to the Union, without restriction or limitation. The states can do nothing which shall interfere with the establishment of a uniform, common currency, and with a uniform standard of value-a standard which every citizen is to have, no matter where he resides, or with whom he deals; which the resident of each state shall employ in his transactions with those of every other state.
This transfer of power to the united body was indispensable. Before the revolution, there was no common currency, or standard of value; except as the colonies were subject to those of the mother country. During the confederation, there was none-none established and regulated by competent authority. Each state, with an unrestricted will, made one for itself. To do this was one of the attributes which they assumed, when they declared themselves independent. It is, indeed, a natural, inalienable, indispensable attribute of sovereignty, in all nations, civilized and savage. How the states exercised it, during the confederation, in the first moments of their national existence, is matter of interesting, but not of necessary, inquiry in this stage of the argument. But when they passed from confederation to union, their right, in this respect, necessarily ceased. A confederation might, a union could not, exist, with the power exercised according to the will or caprice of the different members. The confederacies of Greece, Holland, Switzerland, Germany and others, had existed, with such exercise. The Union required one currency to place all its citizens on the same platform-to obviate innumerable causes of dissatisfaction and dislike-to give to the common government the authority which was absolutely indispensable to enable it to accomplish the great and benevolent purposes for which it was created. Hence, the power conferred upon it is exclusive. To reason safely, we must keep this in view: and as the restrictions upon the states are meant as the guards of that power, we must so construe them as not to permit them to encroach upon or interfere with the power. The power and the guards must stand together, and may not destroy each other.
What then is the power to create and regulate a currency for the Union? It is, to establish by law, that which all shall receive, as money; which shall pass, at a fixed value, in all the transactions of society, and having the national sanction, that nothing created by others, shall interfere to defeat it. It is to make a legal tender. To establish the material and the standard by which all contracts shall be governed; which do not themselves provide otherwise by agreement between the parties. To prescribe what the debtor may be complled to pay in satisfaction of his debt, and what the creditor shall receive from him. Such a currency was altogether proper and indispensable, under a system which for the first time in the history of free governments, established it as a fundamental principle, that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' It was impossible to carry out this principle without it.
Congress, in 1789, immediately after the government commenced, passed a law in relation to certain foreign coins, and by a long chain of acts, familiar to the court, and ending in 1834, from time to time, regulated them, as convenience, discretion and the condition of our own coinage required. In 1792, they established a mint, and cautiously prescribed the coins which should be made, the standard by which they were governed, and the value at which the citizens of the Union should receive them. This law created a currency for the Union. It has been called constitutional currency. It is constitutional, because the law creating it was authorized by the constitution; but it is not so, in that sense alone. The constitution authorized congress to create a legal currency, and this is its proper designation-legal currency, or money current by law. Congress might have created a legal currency, not of gold and silver. They issued treasury notes, and chartered a bank. They had the power to make the treasury and bank-notes a legal currency, a lawful tender, because the power is without restriction in the constitution. But it would have been most injudicious and inexpedient; an exercise of discretion, unjustifiable then, and which will not, and ought not, to be exhibited hereafter. Power and duty are not always the same. Policy and power are often opposed.
The court will remark, that I do not labor to define, but I desire to distinguish between currency and money, or circulating medium. Legal currency is what the government, by rightful authority, declares shall pass at a fixed value, in the transactions of society, as gold and silver here; money or circulating medium is that which passes by consent and agreement, or otherwise, in contracts and business transactions. It may be gold and silver or bills of credit, or even promissory notes, which are received as discharges of debts. The former, in all countries, is small in amount, in ours not more than from seventy-five to eighty millions; the latter, if all kinds are embraced, reach probably to nearly one thousand millions. The former is the standard and regulator of the latter. The former is entirely under the disposal of the general government; and it was the avowed purpose of the constitution to prevent the states from interfering with it. The latter is not prohibited to them. But it was that they might not touch the former, or do that which should destroy it, that the prohibition of bills of credit was inserted. They were money currency, if they had the credit and faith of the state stamped upon them; and their circulation would interfere, injuriously, with the common intercourse and obligations of the various parts of the Union with each other.
Among the circulating medium are to be found, the common bank-bills, issued by corporations, as state banks, and promissory notes issued by individuals; as by Morris and Nicholson, of former times; and the Nashville firm, and others of more recent date. They are not legal currency; no man is compelled to receive them for debts due, or on contracts. No man's right to refuse them can be questioned. No law requires them to pass current; it is matter of convention. They are bills of credit of individuals or corporations, and are received on the faith and credit of those who issue, and at the hazard of those who receive them. They form, by assent of parties, a substitute for current money; but have no legal validity as such. Individuals and corporations may issue them; and those with whom they deal may receive them, without violation of the constitution and laws, unless they are forbidden to do so. But it is precisely such which the Union intended to prevent the separate states from emitting, on their own faith and credit. And for most obvious reasons, as will presently be further seen.
It is not my purpose to contest the constitutionality of the bills issued by individuals, or by banking incorporations, who have authority by their charters to issue them. I do not concur in the printed argument which has been handed to the court, so far as it seems to declare, that all these state banks are unconstitutional; nor is it necessary for my argument, or my cause, that I should agree to that position. The states have power to create corporations; to invest them with the right to issue promissory notes, on such terms, and with such security, as shall seem proper; to place them, in this respect, on the footing of individuals. But the states have not the power to make the notes issued by them current money, or compel their citizens to receive them. This would be an assumption of the authority which has been solemnly vested in the Union alone.
The duty of congress is to create and to protect a common currency of the Union. The power to create, embraces the power to regulate, and the means of regulation. The means and the character of this regulation, need not be explained at this stage of the argument. But it will be found, that the admission of the right of the states to create banks, will afford an argument in denial of the right of the states themselves to issue paper on their own credit. Why should these notes be received and used as a part of the circulating medium? Solely from the unavoidable scarcity of current money? The country requires more circulation than specie can possibly afford. They are necessary for the business of society. The same apology existed for treasury notes, and notes of a bank of the United States. Bills of credit, at all times, have this justification, no other; and they may be received, but must not be legalized as currency, by the general government. No public agent of the Union, no representative ought to recognise them as currency, by any act of legislation. I urge, then, that congress has the entire control of the currency, and with it, as a necessary consequence, the power to regulate the circulating medium; and that, until there is an absolute restriction by competent authority, ordinary bank-bills are a tolerated, legal and constitutional part of the circulating medium; but no part of the legal currency.
This view of the constitution can, by no possibility, create difficulty, or trespass on the rights of the states. The rule as to them is, that they cannot issue bills which shall rest on their own funds and credit, and circulate as money by governmental authority. There is no necessity for them to do it; all the duties which remain to them as governments, can readily be performed without it. The great causes which have always created, and in all countries, the necessity for this exertion of power, have been removed from their action. Those causes had connection with, and sprung from, the intercourse, peaceful or hostile, with other nations; almost universally from war. The Bank of England was created to enable that nation to carry on a war with its great rival. Massachusetts, Connecticut, New York and New Jersey issued their first bills, to obtain aid in the struggle in Canada. South Carolina raised by that process the means to carry on her war against the Indians; and both the state and confederate bills were issued to sustain the war of Independence. But all foreign intercourse is taken away from the states; they wage no foreign or Indian wars; they need not, therefore, the power, in case of such difficulties, to resort to this expedient. While in war, it is unnecessary, in peace, it would produce disastrous consequences. If they were to issue such bills, they would draw a direct distinction between their own citizens and those of other states: and if they were rejected or discredited by other states, or by the Union, distrust and dissatisfaction would ensue, and the Union itself be weakened and endangered.
Bank-bills, or promises to pay, by incorporations or individuals, depend for their circulation on the faith reposed in, or, in other words, on the credit of, those who issue them. And it matters not whether the promise to pay is on demand, or at a future day, or at the discretion or convenience of the payee. The time of payment has nothing to do with their character as bills of credit. A bill, to pay when presented, is no more a bill of credit, than if it fixes a day when it is to be paid, as a year, or six months hence. It still rests on the credit of the maker. This is so, even if a fund is mentioned by which it may be secured or protected. In private cases, funds are seldom specified. In public, almost always. It was so, generally, though not universally, in the bills of credit of the states, before and during the revolution. But whether with or without a fund, the credit is and must be given to the individual or party who makes the promise; and who, by that promise, binds himself to satisfy the holder for the amount. In this respect, there is no difference between the makers; whether private citizens, corporations or states. We look to the person who is bound to see the bill paid; and it is his bill of credit. It is not the agent who may sign; it is not the substitute, but the principal. And if he be found, the bill is the credit; and trust is his, and upon him.
Banks generally issue bills payable on demand; they often issue notes, post-notes, payable at a future day, sometimes bearing interest, and sometimes not. Yet they are still their notes; their bills of credit; they are circulating medium. So, the government issued treasury notes, payable at a future day, and bearing interest. They were the bills of credit of the government; and their circulation, as a medium, depended on the credit of the government. So also, if a state, by its agents, issue bills, for which the agent is not individually responsible, but which must be paid out of funds provided by the states; it is not the bill of the agent, but of the state. The form is nothing; who is to pay, and out of whose funds is the payment to be made, is the decisive matter. Now, if a state, by its agents or otherwise, issue bills which pass as money, they pass, not on the credit of the agent, but of the state itself. If that credit be disgraced and rejected, it is not the agent who feels and suffers, but the state. If the bills are refused by other states, or impeded by the general government, the state is affected; her separate sovereignty is impeached. Imputation is cast, by her equals, and by the Union, on her credit and solvency. Hence, will instantly arise a train of the evils to a Union like ours, which will strike the mind, without the aid of description or argument. The constitution designed to prevent such results; this court will not counteract that design. But this is not all; these bills are the money of the citizens of the state; if other citizens of the Union reject it, private conflict immediately arises; and this strange exhibition is made in a Union among one people, that a part have one currency, another part another. And the citizens of the state which emits have two governments, one of which they may pay in one medium, and the other they must satisfy in a different medium; the cities of other states are compelled to avoid all dealing with them, or receive what is not current where they reside. This train of reflection deserves consideration, when the meaning of the constitution is sought. Those who made it, were not blind to such effects. The great principle is, that the Union has the power over the common currency. The states cannot interfere, and upon their faith, credit, sovereignty, establish anything which is to have that character. They may authorize their citizens to issue bills, but they may not give those bills any portion of their power or authority, or credit. The moment they do this, they become invested with a new character; they become public money; national, so far as a state is national; separate, so far as a state has separate and independent existence. They create a currency of their own, different from that which is currency elsewhere.
It has been supposed, that this grant of power to the general government arose from the evils which the states had inflicted on themselves by paper money, and was intended to guard them from a repetition of these evils. These were great and appalling; their history is one of imposition and oppression; and they doubtless led the states to a willingness to surrender the power: but it was not so much to create a guardianship over the states, and prevent state and local, as confederate difficulties, that the provision was inserted in the constitution. The remedy for pre-existing and for prevention of future evils was the power conferred on congress; and that power was sufficient for its object, if it had been wisely exercised. But this is not the place to point out and secure its proper management; difficulties and inconveniences in the formation and administration of laws, are not for this tribunal.
The positions resulting from the preceding suggestions appear to be, 1. Congress alone can establish and regulate the currency. 2. States may create corporations which, like individual citizens, may issue bills of credit. 3. These may be received or rejected, at will, by the citizen. 4. Congress may determine how far they shall be treated as currency-as a tender. 5. In doing this, they must make the currency uniform.
If these principles have been explained, we may inquire further into the guards which are provided to prevent their violation. They are two: the states, in virtue of their funds, credit and sovereignty, are not to emit bills, nor make a tender of anything but gold and siver. Both these had been done by the colonies and by the states, in innumerable instances; some producing incalculable evils, others rather beneficial than injurious. In New Jersey, for example, her bills had been so regulated and secured, although they amounted to, nearly, if not quite two millions of dollars, that their credit and payment were protected; and the evils felt by her people, were rather from the paper money of the confederacy, than from her own; and this may in part account for her vote on some questions relating to this provision of the constitution. 4 Elliot's Debates 137.
The prohibition is in the most absolute terms. 'No state shall emit bills of credit.' It did not so stand in the draft of the constitution reported by the committee. There, it was conditional. 'No state, without the consent of the legislature of the United States, shall emit bills of credit.' 4 Elliot's Debates 123. The condition was expunged; the prohibition is peremptory. It is so also as to coining money and making a tender; the other two acts which might interfere with the general powers granted to congress. And it is apparent, that one of them is no more taken away than the others. The states have the same right to coin money, as to emit bills.
These bills and paper money were one and the same thing. The paper money of the colonies and of the new states were called bills of credit; simply because issued by the authority of the states, created by them, and which they were bound to redeem. This requires no argument or reference to authority, because it is admitted fully by the adverse counsel, and is not denied. The paper money was the bills of credit, and there was no other. Now, if all bills of credit are forbidden, then all paper money is forbidden. If there be any exception, it is to be shown by those who maintain the validity of the state issues. Whatever the states were in the habit of issuing is then prohibited. What were they? I shall not refer to the multitude of acts which have been cited, and to which the court have references. They were all of one character; having one object, and one substance. They were signed by state officers, commissioners, committees, by persons who were agents of the state, and acted for the state, not for themselves.
The court cannot but be familiar with Story's Commentary on the Constitution; which gives the most clear, condensed and accurate view of these bills, their nature and effects, which is within the compass of my reading. I use it as one of my guides in this argument. 3 Story's Com. 222. They were promises by the agent that the state would pay the amount mentioned, on demand, or at a fixed day. They had a fund provided for their redemption, which those who authorized them considered sufficient to secure their payment; generally taxes, or some portion of the revenue belonging to the state. The sufficiency of this fund was of no importance, as to their character as bills of credit. It almost always failed, except in case of the state to which I have before referred; but in all cases, the resort was to the funds and the credit of the state. They were permitted to pass as the citizens should estimate them; or they were forced into circulation by legislative command, by tender laws. They were circulated as money, and in every instance which can be found, they promised payment in gold and silver, in specie, or in current money, which meant gold and silver. In all cases, they were bills of credit and paper money; and the states cannot now emit anything in their resemblance, or having their object. In all their forms, they were within the mischief to be remedied. See Craig v. Missouri.
The adverse counsel, to enable the bills of the Commonwealth Bank to escape the denunciation, have given us four tests, by which they are to be tried; and without which, they are not to be taken as bills of credit, within the meaning of the constitution. These are—
1. That they were issued by and in the name of the state. A more true description would be, that they were issued by officers or agents of the state, for and on behalf of the state. The form given in 4 Pet. 453, was general. It was the certificate of the officer; the promise that the state would pay. I admit, that the person signing them must be an officer or agent of the state, and promise for the state; he must represent the state, but the form in which he does it, is of no importance. 'Due at the treasury of the state 20 dollars,' and signed by the person authorized to sign it; is as much a bill on the credit of the state, as if the most precise form was used. And it matters not what the treasury or place where it is to be paid, is-a bank, or the treasurer's house. It is the place where funds of the state are kept; and that is the treasury, call it by what name you will. It does not cease to be the treasury, because you call it a bank. And if the promise is made by the agent, that he will pay, it does not thereby cease to be binding on the state; if the money out of which he was to pay, is the money of the state, and not his own. Forms cannot conceal the substance of the transaction, nor divert its obligation from the real debtor.
2. That they were to supply the place of a circulating medium. There is, in this case, no object in debating this test. It is emphatically admitted, that the notes in question were designed to circulate as money, and supply its place.
3. There was no compulsory process to enforce payment. Is is not perfectly apparent that there was, in all these cases, the same process as upon all other contracts by the state? Besides, when the provision was inserted in the constitution, the states could be sued. This was the early doctrine, and the constitution was amended to take away the suability of states. But to relieve this present case from the application of this test, it must be shown, that the officers or agents who have been interposed between the holder of the notes and the state itself, can be sued, and compelled to pay, whether the state will it or not. A suit against them is mockery, unless the judgment can be enforced against those who own the funds. When the law is examined, the value of this effort to evade the constitution will be apparent.
4. That for the bills of credit, before the constitution, no adequate provision was made for their redemption. This was not believed to be the case, at the time of any of the emissions. A fund was almost always provided. Whether sufficient or not, was matter of opinion; and they only were to judge of its sufficiency, who authorized them. It was to arise from taxes, excises, imposts, specified property, from some source of revenue to the state. That they were found to fail, does not alter the fact. It will scarcely be pretended, that the character of the paper, as bills of credit, depended on the accuracy of judgment of those who set apart the sinking fund. Much less would that character be changed, if the fund should unexpectedly fail. This would convert them into bills of credit, according as the value of the fund was enhanced or depreciated. The counsel will find it difficult to sustain this position, by any reference to history; and if the insufficiency of the fund is to be decided by the depreciation of the paper resting upon it; which is the only test which we or this court can apply; then the defendant in error can have little hope. The notes of the Commonwealth Bank depreciated fifty per cent., notwithstanding the fund provided for them.
The result of these tests is, that the qualities of the paper in question cannot be confined to the points urged against us. Their true description is, paper money-bills resting on the funds, faith and credit of the state-issued by agents of the state, promising that they shall be paid, whether out of a specific fund or not; having the same means to enforce payment as other contracts of the state, and designed to pass as money, to relieve the wants of the government, or its citizens.
It will at once be perceived, that neither this description, nor any argument now urged, can interfere with, nor be made to deny the right of a state to borrow money and give its acknowledgment of the debt. If it be honestly and truly a loan, and the acknowledgment intended to secure its payment, no objection exists. The bills of credit of the colonies were not loans, nor certificates of loans. They were the paper money-the circulating medium of the times. It is the business of a court to look at the real object; and mere matters of form, or the name by which any paper or instrument is called, will not, with them, decide its character. If a state, not in debt, not wanting money to discharge its obligations, issues notes admitting that it owes, and does this to relieve its citizens and create money for circulation, shall the finesse succeed? Shall the constitution of the Union be overthrown by chicanery; and by mere names given to acts? Or rather, shall it not operate upon the acts themselves, and be enforced according to its obvious import and meaning? This is a matter not to be reasoned before this court.
I am now prepared to examine the law of Kentucky creating the Bank of the Commonwealth, and to apply its provisions to the constitution. It will be found to authorize the emission of bills which have every characteristic of the bills of credit of former days. Its preamble developes its object, and the mode of accomplishing it. It is in these words: 'Whereas, it is deemed expedient and beneficial to the state, and the citizens thereof, to establish a bank, on the funds of the state, for the purpose of discounting paper, and making loans for longer periods than has been customary, and for the relief of the distresses of the community; therefore, be it enacted,' &c.
The object was not to borrow money for the state. This cover, which was unsuccessfully attempted in Craig v. Missouri, cannot be resorted to here. The government of Kentucky had no debt; no necessity to borrow money to supply her wants. The object was the relief of the distresses of the community; the mode of relief, was to make loans to them of money, with which to pay debts and make purchases. Her motive was similar to that which produced all the old paper money. She had not as good an apology as Massachusetts and the other colonies had, at the commencement of the eighteenth crntury. They issued their bills, to enable them to raise the forces with which to fight the battles of the country; or to pay them, on their return from their gallant, but often unsuccessful enterprises. Their motive was to pay a debt of the government; to meet its obligations. Here, it was to provide money for the people of the state.
The mode of providing relief was by a bank; to issue money in the precise form of all other bank paper, and to answer the purposes of all other bank paper. And it was no new mode of issuing bills of credit. There is one example, and that not the least objectionable among the multitude, of its use before this. South Carolina, I think, in the war with the Tuscaroras, adopted this very mode; created a bank, and issued paper money. See 1 Hist. of S.C.. 204. The two are alike in all essential particulars; and yet no man has ever supposed, that the notes of the South Carolina Bank were not the kind of bills of credit which are admitted here, in argument, to be paper money and to be unconstitutional.
The provisions of the law and its supplement show, that the plan was to equalize this money, as money, among the people. The 11th section divides the capital among the counties, in proportion to their taxes. The 21st section, and the supplement, p. 165, creates a branch of the bank, in each judicial or congressional district. The 18th section prescribes the amount which should be loaned, and that it shall not be for longer than one year; nor be loaned for any purpose but to pay debts and purchase stock and produce. In plain words, it was money; money issued and loaned by the bank, to be used as money.
It is not my purpose to deny the duty of the government of the state to use all appropriate and constitutional means to relieve the people, when under such distress as was then felt; but to deny the right to use the means then adopted. The Bank of Kentucky had been created many years before, and the state was one-half owner of the stock. During the war of 1812, it, like others, suffered. It stopped specie payment, by order of the government; and was in that condition, when, in 1817, the state chartered more than forty new banks, requiring them to make their capital of specie, or of notes of the Kentucky Bank. They failed, as might have been expected; and in 1819, their charters were taken away. The pressure and distress of the community were almost insupportable. The virtue and talents of her best citizens were put in requisition; and during the sitting of the legislature in Frankfort, they met in the capitol, in the hall of legislation, to devise the proper means of relief. If I have the history correctly, one of my learned adversaries (Mr. Clay) was there; and, as he has done on so many other occasions, gave to the members of the legislature, and his other fellow-citizens, the counsels of true wisdom. But they were not to create such a bank as that now under consideration; the constitutionality of which was, at that day, denied by a large proportion of the ablest citizens of the state. The legislature adopted other, and, as I insist, unconstitutional advice; and created money for the relief of the people; the money whose legality we contest.
The inquiries at once meet us, whose money was it? by whom was it issued? on whose credit did it rest? by whom was the fund for its redemption owned? An answer to these questions must settle our controversy. If the fund belonged to the state; if the credit was that of the state; if those who issued it were the mere agents of the state, without personal interest or responsibility; then it was the money of the state; the bills were bills of credit, emitted by the state, and fall within the constitutional denunciation. It is susceptible of demonstration, that the state, and not the corporation, was everything. The corporation was not to provide relief of itself. It was but the instrument used by the state to effect its object, by its own means and resources. The corporation was the mere form of her action; and if this form shall be found sufficient to cover and legalize the act, the constitution is, on this point, not worth the parchment on which it is written. It does not require even ordinary ingenuity, to enable every state to trample upon and defy it, whenever interest or caprice may dictate.
1. Then, as to the stockholders. § 1. 'That a bank shall be, and the same is, hereby established, in the name and on behalf of the commonwealth of Kentucky, &c.' § 3. 'The whole capital of said bank shall be exclusively the property of the commonwealth of Kentucky, and no individual or corporation shall be permitted to own, or pay for any part of the capital of said bank.' § 5. The capital stock of said bank shall be two millions of dollars (increased by supplement 22d December 1820, to three millions of dollars), to be raised and paid in the following manner, to wit: 'All moneys hereafter paid into the treasury for the purchase of the vacant lands of the commonwealth; all moneys hereafter paid into the treasury for the purchase of land-warrants; all moneys which may hereafter be raised for the sale of the vacant lands, west of the Tennessee river, and so much of the capital stock owned by the state in the Bank of Kentucky, as may belong to the state, after the affairs of said bank shall be settled up, with the profits thereof, not heretofore pledged or appropriated by law; shall be exclusively appropriated to the making up the capital stock of said bank;' the treasurer, as he should receive money from these sources, to pay it over to the cashier, &c. § 24. All the interest arising from the loans and discounts, which may be made by the said bank, after the payment of the necessary expenses, shall constitute and be considered as part of the annual revenue of the state, and subject to the disposition of the legislature. § 28. The treasurer was to furnish $7000 to procure plates, &c., to put the bank into operation. § 35. 'That the notes of the present Bank of Kentucky shall be receivable in payment of all debts due the bank hereby established, and the revenue of this commonwealth, unappropriated at the close of the present session of the general assembly; also, the revenue hereafter collected, which may remain in the treasury, unappropriated, annually, shall constitute a part of the capital stock of said institution, and shall be paid over to the cashier of the bank, by the treasurer; subject to such appropriations as may be made from time to time by law.'
Preliminary to the particular examination of the character of the paper issued by the bank, under this charter, and to a further discussion of the case; it is important to call the attention of the court to the state of the questions in this case, as they are presented by the pleadings. In no propriety can the cause be decided, but upon them; and the court will, therefore, look to them with their accustomed care and discrimination, before the decision is pronounced.
The pleas of the defendants, in the courts of Kentucky, are, that no capital was furnished to the bank by the state of Kentucky; while the pleas refer to the provision in the charter, which direct the payment of the proceeds of certain lands, and that the funds of the state in the Bank of Kentucky, shall be paid over to the Bank of the Commonwealth, they aver that nothing was ever paid. They also aver, that the whole of the profits of the bank belonged to the state, and were received by the state. The plaintiffs demurred to these pleas, and thus they admit every and all the facts set forth in them. The case is, therefore, on the pleadings: a bank was established for the sole and exclusive benefit of the state of Kentucky, for the exclusive profit of the state; and no capital was furnished by the state, none was paid into the bank. The state appointed the officers of the bank, and they issued notes in the form of bank-notes. These notes were circulated as money, and were the consideration for the note on which this suit was brought. The law directed, that certain funds should be handed over to the corporation, which were to form the capital, but the law was not complied with. The credit of the state, pledged by the provisions of the charter, directing the appropriation of these funds, was, therefore, the only pledge for the redemption of the bills of the bank. If the case would stand in a more favorable aspect, had the proceeds of the public lands, and the funds of the state in the Bank of Kentucky, been actually handed over to the president and directors of the Bank of Commonwealth, and thus have become a capital, answerable for the debts of the institution; this is not the case before the court. The pleas of the defendants allege the contrary, and the demurrer admits the truth of the allegations. Even had those funds been so appropriated, if any such existed, and this court does not know they did exist; still these appropriations would have been revocable by the legislature of the state.
Where is the controlling power over the state, to prevent, by subsequent legislation, the withdrawal of all the funds, at any subsequent period, and for any purpose the legislature should direct. Could the state of Kentucky have been called upon, for impairing the obligation of these contracts? Before what tribunal could such a claim have been preferred. Thus, the faith of the state was alone the basis of the bills of the bank, and the pledge for their redemption. A faith, it is not intended to impeach, or to question. The argument has no such purpose or design.
To proceed with the general argument. By the provisions of the law, it is clear:-1st. That the bank was established in the name, and on behalf of the state. Not in the name, nor on behalf of the corporation, or any of the men belonging to or composing it. The state was the only stockholder; the only one interested in it. 2d. That all the stock, funds, profits of the bank, belonged to the state; were, in fact, the property, the revenue, the treasure and the treasury of the state. 3d. That the state had absolute control over this property; could appropriate every dollar of it at pleasure; and by the 29th section, it had the power, from time to time, to alter and change the very constitution of the bank which nominally held it. 4th. No individual, not even the president and directors, owned one cent of the capital stock, or could receive, in any form, the slighest profit from it; or regulate and dispose of it otherwise than according to the pleasure of the legislature. It is impossible to conceive a more perfect property. The corporation owned nothing. It used nothing, except as the agent and representative of the state.
Under these circumstances, can it be pretended, that notes issued upon this property, and secured by it, were the notes of the bank, and not of the state? They circulated on the faith and credit of the fund, or of the owner of the fund. To call them the notes of the corporation, is a gross perversion of the plainest truth. They were the notes of the state, and actually issued out of the treasury of the state. The covering is too thin for judicial eyes. In the whole history of bills of credit, there is not one case more bald, so far as funds and credit are concerned.
But it has been argued, that the funds were vested in the corporation, and that they were ample to secure the payment of the notes, which were payable in gold and silver; and the corporation might be sued. How were they vested in the corporation? The president and directors were, by the 2d section, made a corporation, 'able and capable in law, to have, purchase, receive, possess, enjoy and retain, to themselves and their successors, lands, rents, tenements, hereditaments, goods and chattels, of what kind, nature or quality soever, and the same to sell, grant, alien, demise and dispose of.' But when or how was their capacity in this respect satisfied or used? Were the lands from which the capital was to arise ever transferred to them? Was the state's capital in the Bank of Kentucky? Never! The corporation never owned either. It was not intended that they should. The capital was to be created out of their profits, after the wants of the state were supplied. They never owned any of the property. Even the profits which might arise under the loans and the mortgages by which they were to be secured, was, after payment of the necessary expenses, to be 'subject to the disposition of the legislature.' See § 24. And their whole capacity of acquiring and holding property, was to be 'subject, nevertheless, to the rules, regulations, restrictions and provisions in this act.' In other words, subject to the absolute control of the legislature; subject to the wants of the government; subject to the annual appropriations by law. None of the property was ever vested in the corporations, as owners, but only as agents or trustees of the state: trustees, too, compelled to act at all times, not by the covenants in the trust, but by the command of the cestui que trust.
As to the value and sufficiency of the fund, but little need be said. It is, at best, proved only by allegations of counsel; founded upon no evidence before the court. The lands were most uncertain in their proceeds; they might, or might not, produce funds to pay the notes, or form a capital. And they might at any moment have been transferred by the state, or given up; as is the fashion of the day, elsewhere, to actual settlers. The capital of $500,000 in the Bank of Kentucky, and its profits, were, if possible, in a worse condition. It was previously incumbered by law, according to my recollection, to two-thirds of its amount; and was liable to further burdens. The bank had stopped payment; and its very incompetency occasioned the charter of this bank.
But if the fund was so ample, why did the notes depreciate? They fell, as the court has been informed, fifty per cent.; and were at that point, when they were loaned to the plaintiffs in error. The truth on this point is, that the bank never had any funds. It went into operation, before any part of the capital was or could be paid in; and issued its notes and took its mortgages and other securities from the borrowers. It was created on the 29th November 1820, and went into operation 1st May 1821; and never, during its existence, received, from any quarter, a hundredth part of the three millions which it was authorized to emit. The position of the pleadings, as has been said, determines this fact. The plea denies that the capital was real, or the fund sufficient, and the demurrer admits the truth of the allegation; and it makes, in this, no admission contrary to the truth. The bank never had any capital except its own notes; its own promises to pay: and these, it is quite too absurd to regard as constituting capital, or giving ability to pay gold and silver.
Again, the promise was to pay gold and silver; and the promise might be, and has been, enforced. In this respect, these notes are only equal to all former bills of credit. They all, without exception, promised, in substance, to pay gold and silver; they bore this undertaking on their face. But did they do it? Was it not the promise, and the failure to perform, that covered them with the mantle of fraud and imposition, and created the bitter denunciation of the people, and the constitutional prohibition of their government? And if this bank paid gold and silver, how happened it that its notes depreciated so enormously? It ran the career of all its predecessors.
The reference to the payment enforced by this court, is to the case of Commonwealth Bank v. Wister, in 2 Pet. 324. This was the case of a deposit, not of the loan of its notes. It was the payment of money received; not of gold and silver for its promises, its bills of credit. And if, after judgment and execution, it had declined to pay, out of what would the money have been made? Of the property of the president and directors? This could not have been touched. Of the capital of the bank? It had no existence. Of the profits? These might have been appropriated by the state, and removed cut of the way even of the process of this court. Court the creditor take the lands; the stock of the Kentucky Bank; the money in deposit? He would have come, at last, to depend, as in all other like cases, on the honor and faith, and credit of the good commonwealth of Kentucky. He might have found himself in possession of a right, without a remedy. In this respect, the promises of this agent of the commonwealth stand precisely on the ground of the old bills of credit. They were protected by funds quite as respectable and as safe as these. And some of those of the old congress were better; for the court will recollect, that in one instance, it pledged all the colonies.
The next argument which I am called to consider, has relation to the persons by whom the notes or bills were issued. It is said, that they must be officers of the state; and I understand it to be admitted, at least, not denied, that if these notes had been issued by the governor, auditor, treasurer, or a commissioner or commissioners, appointed, as of old times, for the purpose, and to act for the state, they might be regarded as bills of the state; and, of course, bills of credit. Upon what principle, does this admission rest? The officers named, the governor, auditor and treasurer, are not officers for this purpose. If they sign and issue bills, it is not invirtue of their offices; it is no part of their official duty: but they do it, as a special duty, assigned to them by law. Might not the same duty be assigned to any other persons in the state, and they represent and be its agents, precisely in the same sense, and with the same binding obligation on their principal? It would puzzle ingenuity to define the distinction.
In answer, then, to the objection, I maintain, that the president and directors of the Commonwealth Bank were the special officers, the selected agents of the state for this duty. They were appointed annually by the legislature, as all other officers were. § 1 of principal act, page 35, and § 3 supplement, page 166. They gave bonds, not to the corporation, but to the state, as other officers do. They took an oath of office, like others. They were required to keep minutes or records of their acts, to be laid before the legislature, their creators, or before any committee of that body (§ 16), that their official conduct might be known; and they were removable by the resolution of the legislature. They were made a corporation, that is, united into one body, that they might sue and be sued. But this was solely to enable them to act as the officer or agent of the state; not to give them a right act for themselves or others, or to give any interest in the property, or any rights other than the treasurer or auditor might have had. Suppose, the treasurer of the state, for the time being, had been commanded, and been made a corporation, to issue these notes and perform these duties, and to sue and be sued; what would have been his character, and how would the notes have been regarded? He would have been the officer of the state still, and the notes, the notes of the state. I demand, then, to have the difference explained, if judgment is to be pronounced against the plaintiffs in error, and the constitutionality of this law affirmed by this tribunal. The duty which these officers had to discharge was little more than to issue the notes from what the law calls 'small change,' to any amount up to $100, and take security for them (§ 4, and § 16 and 17 of sup. page 170); to keep the treasury, and to account for the profits. And all this, not for themselves, but for the state. Their loans were to be only to the government and citizens of Kentucky; and these loans were to be negotiable and payable as money. § 22.
But there is still another feature which makes this law unconstitutional.
The money issued was made a tender by § 20. The securities taken for loans of this money, are to be considered as of record from their date, and have priority of all mortgages and conveyances not previously recorded. The property might be sold in sixty days, and bought in; the debts for this money thus became debts of superior dignity, and were to be first paid. The notes were to be received for taxes and dues to government, and for county levies, for officers' fees and salaries. And by an act of 25th December 1820, which may be regarded as contemporaneous with the charter, executions were suspended for two years, unless the creditor would indorse thereon that these notes would be received in payment; and if a sale took place, it must be with a credit of two years. The law thus enforced the receipt of these bills of credit as legal currency. The constitution intended by its prohibition to forbid all interference with the legal currency. A stay for two years, made it a tender for two years. The power which could do this for two, could do it for twenty years. But my object in referring to these provisions is, to draw from them the character which the state meant to give to the money. It clearly regarded these notes as money; and meant to make them a legal currency among its citizens, in virtue of its own powers and credit, the precise object of all the old laws authorizing bills of credit. When did any state do this in regard to bills of corporations or individuals? Had they been the property of the corporation, would they have been thus protected? Would it not have been a gross violation of that plain provision of the constitution, that forbids the impairing of contracts? Indeed, if the two acts of 29th November, and 25th December, can be regarded as contemporaneous, and parts of the same system, that provision of the constitution applies to this law with irresistible force.
The attempt has thus been made to investigate the meaning of the constitution and the provisions of the law of Kentucky, and compare them; and the result which seems to have been reached is respectfully submitted. The constitution of the United States forbids a state to issue bills resting upon its funds and credit; and is not to be evaded by mere finesse, and forms and names. It looks to the substance. The notes of the Commonwealth Bank were the notes of the state, issued by its officers, for the state; relying for redemption on the property and faith of the state; and circulated for the profit of the state, and not of the bank, or of any individual citizen. The law then was in violation of the constitution, and is void.
But does the case rest on argument and illustration? It has already been decided. I have regarded the case of Craig v. Missouri, as conclusive of the judgment of this court upon the question involved here. Not only is that judgment, as pronounced by Chief Justice MARSHALL, clear and explicit; but the grounds assumed by the dissenting judges confirm the principles now advocated. That case is before the court, and I can hope to add nothing to its force; but I may suggest that the grounds of doubt with the dissenting judges do not exist in this case.
I am unable to perceive a distinction between the cases, which will justify the condemnation of the Missouri paper, and the support of that of Kentucky; unless it be, that the former was signed and issued under the authority of the law, by persons called auditor and treasurer; and the latter was signed and issued under the authority of law, by persons called the Commonwealth Bank of Kentucky-a distinction without a difference. Both were by agents of the state, acting for the state; and the acts were thus acts of the state. I am yet to understand how a state can do that by a corporation, which it cannot do by other agency. Is that be the principle, its annunciation from a tribunal of justice, will give new light upon constitutional law to the people of this country.
I have presented the argument, and do not now turn aside to inquire into the conduct of the state, or the gains she may have made by the issuing and burning of her paper. If she had taken mortgages on the lands of all her citizens, for her depreciated paper, and brought them all to her granaries, as Joseph did in Egypt, it is a matter to be settled between her and them. If she has made money out of them, they must seek the appropriate satisfaction. Nor do I detain the court by balancing moral results between her issue of depreciated paper, and the plaintiffs in error refusing to pay still more, after they have already paid more then what they received was worth. The only morality which is to be regarded in argument, before, or in its decision, by this high tribunal, is that prescribed by the constitution and laws of the country. It is, in this day, the safe morality, everywhere. I ask for their vindication, and fear no consequences.
The disastrous day which my most eloquent opponent depicted, will be found, not when any constitutional restraint shall be enforced either on individuals or states; but when the commands of the constitution shall be disregarded; and this last sheld for its protection shall show itself too weak to bear the weapons which are hurled against it. Believing that that time has not yet arrived, I confidently anticipate its support, by the judgment of the court in favor of the plaintiffs in error.
MCLEAN, Justice, delivered the opinion of the court.

## Notes

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