[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

and are the bills of credit of the person, corporation, or government, which emits, makes forth, issues, or puts them into circulation. The name given to the paper, its form or the mode of giving it currency or circulation is immaterial; its substance consists in its being an engagement to pay money at a future day, and that its payment rests on the security, faith, credit or responsibility, of those who put it into circulation, pledged on the face of the bills of individuals and corporations, and the law of the nation which emits or issues them. Bills of credit were viewed in the United States in the same way, before the adoption of the constitution and immediately afterwards. That the definition of a bill by the common law and common acceptation, is the same here as in England, and has ever been so accepted, is a proposition which needs only to be asserted; the same reasoning also attaches to a letter of credit in a mercantile sense, and the same distinction which has been shown to exist there, between bank bills and bank notes, was in the most explicit manner recognised during the revolution.

On the 31st December, 1781, congress passed an ordinance to incorporate the subscribers to the Bank of North America, and recommended to the legislatures of the several states, to pass such laws as were necessary to give the ordinance full operation, agreeably to the resolutions of congress on the 26th May preceding; 7 Journals Cong. 197, 199.

In the proceedings of that day, we have the plan of the bank which was then approved; in the twelfth article it is provided, "That the bank notes payable on demand," shall by law be made receivable in every state for duties and taxes, and by the treasury of the United States as specie; congress also resolved, that they should be received in payment of all debts due the United States, and recommended to the states to make the counterfeiting bank notes a capital felony; 7 Journals Cong. 87, 90; 26 May, 1781.

Pursuant to this recommendation, Pennsylvania passed an act to prevent and punish the counterfeiting the bank bills, and bank notes of the bank, made or to be made or given out. Hall and Sellers L. vol. 2. p. 11; 18 March 1782. In 1783 Delaware passed an act to punish the counterfeiting the bank bills, and bank notes of the bank; 2 Laws D. 773. But the law of Massachusetts passed the 8th March, 1782, contains the most unequivocal evidence, that the distinction between bank bills and bank notes was well known and understood, for it copies the thirty-sixth section of the acts of 8 and 9 W. 3, before referred to, "That if any person shall counterfeit any sealed bank bill or obligation made or given out for or in the name of the said P. D. & Co. for the payment of any sum of money; or any bank note of any sort whatsoever, signed for or in the name of the said P. D. & Co." Thomas' L. Mass. 187. In all these acts the words note, bill or obligation, are put in the same contradistinction from each other, which the common law assigns to them, and so are the acts of congress for chartering the Bank of the United

[Briscoe et al. v. The Commonwealth Bank of Kentucky.] States, which were patterned from the acts of parliament chartering the Bank of England.

By the ninth fundamental article of the charter of 1791, it is provided, that "The total amount of the debts which the said corporation shall at any time owe, whether by bond, bill, note, or other contract, shall not exceed, &c." 1 Story L. 172. S. P. 8th article of charter of 1816. 3 Story, 1554. In the 13th article, the 29th section of the 5 W. & M. ch. 20, chartering the Bank of England is copied, declaring that "The bills obligatory and of credit under the seal of the said corporation," &c. shall be assignable by endorsement, &c. And bills or notes issued by the corporation, signed by the president and countersigned by the cashier, promising the payment of money, to any person or his order, or to bearer, though not under the seal of the corporation, shall be as binding on them as on a private person, and be negotiable by endorsement if payable to order, or by delivery only if payable to bearer; 1 Story, 173, 4. S. P. 12th article of charter of 1816; 3 Story, 1554, 5; thereby adopting the provisions of the 3d & 4th Ann, ch. 9, before referred to as to notes.

In the twelfth article of the charter of 1816, there is this proviso, "That said corporation shall not make any bill obligatory, or of credit, or other obligation under its seal, for the payment of a less sum than five thousand dollars." In the seventeenth section we find the paper issued by the bank placed in contradistinction no less than five times, by the denomination of bills, notes, or obligations, and the same distinction is made throughout the acts of 1791, and 1816. It is also carried into the acts of 1798, (omitting the word obligation,) by which the counterfeiting of any bill, or note, issued by order of the president, directors, and company, of the bank, is made a felony; 1 Story, 518; the act of 1807; 2 Story, 1048; and the eighteenth and nineteenth sections of the act of 1816; 3 Story, 1557, 8, in each of which the words bill and note are used to refer to the two kinds of paper, the word bill being used in its comprehensive sense as a known legal term, embracing bills, bonds, obligations of all kinds, when under the corporate seal, according to their settled and unvaried acceptation.

In considering the third species of bills of credit which are issued by the government, I will first refer to their definition by parliament, as the best evidence of the meaning and acceptation of the term in England, and as it was adopted in the United States.

The authority for issuing tallies, orders, or bills, from the exchequer, and the manner of doing it, are pointed out in the acts of 5 W. & M. ch. 20; 8 & 9 W. 3, ch. 20, before referred to, and 8 & 9 W. 3, ch. 28; 3 Ruff. 677, 9; also in Gilbert Hist. Exch. 137. When money is paid into the exchequer for debts due, or on a loan to the government, the teller who receives it gives a bill for the amount, which is an exchequer bill, or a bill of credit; a substantial definition of which will be found in the eleventh section of the 8 & 9 W.

[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

3, ch. 28; 3 Ruff. 679. "Provided also that this act, or any thing herein contained, shall not extend to alter or change any method of receipts or payments by bills of credit in the exchequer, allowed, or to be allowed by parliament," referring evidently to two species of such bills which are issued from the exchequer, according to the prescribed mode of accounting for all moneys paid. A bill of credit given to a debtor who pays his debt, is merely the evidence of its payment; but a bill of credit given to one who lends money on the credit of the exchequer, allowed to be pledged by act of parliament, is a bill made forth on the credit of the government, who is a debtor to the holder for the amount with interest thereon as directed by the law.

It is evident that the constitution did not intend to prevent the emission by a state of a bill of credit of the first description, which in effect would be no more than a receipt for a debt due the state; it clearly refers only to that class of bills of credit which were emitted by a state, for the purposes declared in the law authorizing them to be emitted and put into circulation. Taken in this sense, the term bill of credit, will be found to have been as well defined in the United States before the adoption of the constitution, as it was in England, or as the term bill of credit, in reference to bank bills, had been there and here from the time when the first charter of a bank was granted.

By the ninth article of the confederation, congress were authorized "to borrow money or emit bills on the credit of the United States," but unless nine states consented, could not "coin money," nor emit bills, nor borrow money on the credit of the United States." By article twelve, all bills of credit emitted, moneys borrowed, and debts contracted, by or under the authority of congress, &c. shall be deemed a charge against the United States; for payment and satisfaction whereof, the said United States, and the public faith, are hereby solemnly pledged; 1 Laws U. S. 18, 19.

If there is certainty in language it would seem to be in this, as a definition of a "bill of credit," and was evidently copied in the tenth section of the first article of the constitution; the prohibition against any less than nine in number of states acting on certain subjects is in the precise words, "nor coin money," "nor emit bills;" if it is asked what bills, the answer is, "bills on the credit of the United States, bills of credit emitted by the authority of congress on a pledge of the public faith." By substituting state, for "United States in congress assembled," the meaning of the words is identical, and cannot be mistaken when they are transferred into the constitutional prohibition, "No state shall coin money, emit bills of credit," means bills on the credit of the state. Plain words must be perverted by something inconsistent with reason, if they mean any thing else; if they do not refer to bills emitted on the credit of the state, we must be informed on whose credit. It must be that of an individual, a corporation, or of the United States;

[Briscoe et al. v. The Commonwealth Bank of Kentucky.] those who assert such a proposition, can have no respect for the constitution or its framers. Yet they can in no other way evade the obvious meaning of plain words; the prohibition was intended, and does prohibit a state from emitting bills on its own credit, and not on any other credit.

The prohibition is confined to a state, to an emission by a state, of bills of credit, emitted on the faith of a state, which can be pledged only by the law of a state, and no more exquisite torture can be inflicted on plain words, than in the endeavour to make them mean more, mean less, or mean any thing else than the credit of a state. When we look to the names affixed to the articles of confederation, and the constitution; when we consider that the former, after being long discussed in congress, and approved by that body, was submitted to the state legislatures, who deliberated nearly four years before its adoption, and that every word, phrase, and sentence, was fully discussed and most anxiously considered, it cannot be considered as a bold or rash assertion, that the framers of both instruments, comprehended the language they used, said what they meant, meant what they said, and stamped upon their work an impress of intention, which they at least designed should be intelligible to all capacities.

If the definition of a bill of credit, as given in both instruments, is not authoritative, I know of none higher to which to appeal as a more certain standard of political or judicial truth. In following such leaders in a path which they have plainly marked, I feel perfectly conscious of avoiding that disrespect for the solemn muniments of title on which the Union rests, which would be a cause of severe self-reproach, if in this tribunal I should rest my judgment on any contradictory authority. As however it cannot derogate from the respect due to the framers of those instruments, or the instruments themselves, to refer to authority subordinate only to that of state legislatures who made the confederation, and the people of the several states who ordained the constitution, in affirmance of the definition of bills of credit, as given by all, I shall refer to the resolutions of the old congress, and the acts of the new immediately after the adoption of the constitution.

By the third section of the act of July, 1790, making provision for the debt of the United States, among other evidences of debt which were to be received as subscription to the proposed loan were the following: "Those issued by the commissioners of loans in the several states, including certificates given pursuant to the act of congress of the 2d January, 1779, for bills of credit of the several emissions of 20th May, 1777, and 11th April, 1778. And in the bills of credit issued by the authority of the United States, at the rate of one hundred dollars in the said bills for one in specie." 1 Story, 110, 111.

The general term bills of credit, as used in the act of 1790, are

[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

defined in the resolutions of congress on the days respectively referred to.

20th May, 1770. "Resolved, that the sum of 5,000,000 of dollars, in bills on the credit of the United States, be forthwith emitted, under the direction of the board of treasury." 3 Journ. 194.

66

11th April, 1778. Resolved, that 5,000,000 of dollars be emitted in bills of credit, on the faith of the United States."

"That the thirteen United States be pledged for the redemption of the bills of credit now ordered to be emitted." 4 Journ. 149.

2d January, 1779. In the preamble and resolutions of this day, bills of credit are thus referred to. The United States have "been under the necessity of emitting bills of credit, for the redemption of which the faith of the United States has been pledged." "That any of the bills emitted by order of congress, &c." "That the bills received on the said quotas," &c. "That the following bills be taken out of circulation; namely, the whole emissions of 20th May, 1777, and 11th April, 1778." 5 Journ. 5, 6.

When, therefore, we find, that in the confederation, the acts and resolutions of congress, these various terms are used as synonymous, all referring to the same species of paper, as well known and defined as the term coin, money, or any other term, could be, and the same term, bills of credit, used in the constitution, it is not a little strange that those who framed the instrument, should be supposed to have used it in a different sense, without adding some words denoting such intention. That the term being adopted without explanation, was intended to be taken with the same meaning which had been so long and universally accepted, would, on any other than a constitutional question, be deemed conclusive evidence of their intention, cannot be doubted. If the term could admit of two interpretations, the members of the convention would adopt that which comported with the meaning given to the term by themselves, while members of congress, before, as well as after the adoption of the constitution, rather than any other standard of interpretation to be found elsewhere. These reasons are strengthened by a reference to other parts of the constitution, the terms of which are copied from the articles of confederation, as to coin money, regulate the value thereof, borrow money on the credit of the United States, fix the standard of weights and measures, and numerous others, apparent on inspection.

As the constitution was intended to be a supreme fundamental law, and bond of union, for ages to come, it was of the last importance to use those terms in the grant, or prohibition of power, which had acquired a precisely defined meaning, either in common acceptation, or as terms known to the common, the statute, or the law of nations, and infused, by universal consent, into the most solemn acts of congress, and the alliance of the confederation, which expressed the sense in which the whole country understood words, terms, and language. The framers of the constitution did not speak in terms