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[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.” I 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. 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 df 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, fia: 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 [Briscoe et al. v. The Commonwealth Bank of Kentucky.]
known only in local history, laws or usages, or infuse into the instrument local definitions, the expressions of historians, or the phraseology peculiar to the habits, institutions, or legislation of the several states. Speaking in language intended to be “uniform throughout the United States,” the terms used were such as had been long defined, well understood in polity, legislation, and jurisprudence, and capable of being referred to some authoritative standard meaning; otherwise, the constitution would be open to such a construction of its terms as might be found in any history of a colony, a state, or their laws, however contradictory the mass might be in the aggregate. If we overlook the language of acts and instruments which express the sense in which it is understood by all the states, and seek for the true exposition of the constitution in those which speak only for one state, we have the highest assurance in the course and range of the argument in this case, that certainty cannot be found in the almost infinite variety of laws which had been passed by the states in relation to the emission of paper money. Nor is there more certainty in referring to the opinions of statesmen and jurists, in debates in conventions, or legislative bodies, to political writers, or commentators on the constitution, among all of whom there is a most irreconcilable contradiction and discrepancy of views, on every debateable word and clause in the constitution, the result of which has been strongly exemplified in the argument of the cases at this term, depending on its true interpretation. Whether the remark made in the senate of the United States, by a profound and eminent jurist, in a debate on a most solemn constitutional question, is particularly applicable to the mass of what has been offered to the Court as authority in this case, or not, yet its general practical truth must be admitted.
“If we were to receive the constitution as a text, and then to lay down in its margin the contradictory commentaries which have been made, and which may be made, the whole page would be a polyglot, indeed. It would speak in as many tongues as the builders of Babel, and in dialects as much confused, and mutually as unintelligible.”
Fully convinced that the constitution is best expounded by itself, with a reference only to those sources from which its words and terms have been adopted, I have always found certainty, and felt safety in adhering to it as the text of standard authority to guide my reasoning to a correct judgment. In expounding it by opinion, or on the authority of names, there is, in my opinion, great danger of error; for, when it is found that from the time of its proposition to the people, to the present, the wisest, and best men in the nation, have been, and yet are, placed foot to foot on all doubtful, and many plain propositions in relation to its construction, it is as difficult as it would be invidious, to select as a consulting oracle, any man, or class of statesmen or jurists, in preference to another.
On the question involved in this case, of what are bills of credit, my judgment is conclusively formed on the authority herein referred
[Briscoe et al. v. The Commonwealth Bank of Kentucky.]
to; if it is not conclusive, I have neither found, or have been directed to that which is paramount, or, in my judgment, at all coordinate, or to be compared with it. Resting on this authority, it was my deliberate opinion, that the certificates issued by a law of Missouri, pledging the faith of the state for their redemption, were bills of credit, prohibited by the constitution. On the same authority, and as the result of subsequent researches, it is now my most settled conviction, that the notes of the Commonwealth Bank of Kentucky, are not bills of credit emitted by the state of Kentucky, inasmuch as the state has pledged neither its faith, or credit, for their payment. And the notes not being payable at a future day, or issued on any credit as to time, either on their face, or by the law under which they were issued, but directed to be paid on demand, in gold or silver, they were not emitted to obtain a loan to the state, or to meet its expenditures, and cannot be deemed its bills of credit. On a careful consideration of the mischiefs against the recurrence of which the constitution interposed this prohibition, of its language, the bearing of the three phrases on each other, their evident spirit, and the meaning deducible therefrom, I cannot abandon my first impression, that one requisite of a bill of credit is, that it be made a tender in payment of debts.
The crying evils which arose from the issue of paper money by the states, cannot be so well described as they are in the language of the constitution. The emission of bills of credit by the states, making them a tender in payment of debts, impaired and violated the obligation of contracts. The remedy is an appropriate one, reaching both the cause and effect, by three distinct prohibitions; no state shall emit bills of credit, make any thing a tender but gold and silver, or pass any law impairing the obligation of contracts. Thus the remedy covers the whole mischief, and goes beyond it if applied literally to its full extent; the mere emission of bills of credit was no evil; if no law coerced their circulation or reception by individuals, they are as harmless as certificates of stock, emitted on a voluntary loan to the state, which are admitted not to be the prohibited bills of credit. So long as they were not made a tender, they could produce no evils not common to all paper, whether of a state, a corporation, or individual, which by common consent, passes from hand to hand in the ordinary transactions of life. To prevent the circulation of such a medium, it was not necessary to call into action the high power of the constitution; the evil would cure itself; when the paper ceased to pass by consent, it would pay no debt, nor lead to the violation of any contract. The prohibition could not have been intended to prevent the people from taking as money, what would answer all the purposes of money in the interchanges of society, or—to deprive them of the exercise of their free will; on the contrary, it was made to prevent the coercion of their free will by a tender law, and leave them free to enforce the obligation of their [Briscoe et al. v. The Commonwealth Bank of Kentucky.] contracts for the payment of money, and the enjoyment of their property. In the construction of all laws, we look to the old law, the mischief and the remedy, and so expound it as to suppress the mischief, and advance the remedy; no just rule of interpretation requires a court to go further, by applying the remedy to a case not within the mischief, unless the words of the law are too imperative to admit of construction. I know no class of cases to which the rule is more appropriate, than those embraced within those prohibitions of the constitution on the exercise of powers reserved by the states, over subjects on which congress have no delegated power; there can be no collision between the laws of a state and the laws of the Union, as there would be where a state would legislate on those subjects that had been confided to congress or any department of the federal government. Taking the first class of cases in the tenth section, relating to treaties, letters of marque and reprisal, and coining money, which are subjects over which the constitution grants express powers as an example, it is evident, that to make the prohibition effectual to the object in granting the powers, it must be total, so as to exclude the exercise of any power by a state over the subject matter. From the nature of these subjects, there can be no concurrent power in the two governments; hence we find that the two first were, even by the article 6, of confederation, expressly prohibited to the states, without the consent of the United States. The same reasons apply to the third, because the express power in congress to coin money, regulate the value thereof, and of foreign coin, coupled with the prohibition to a state to coin money, is a decisive expression of the intention, that it shall not exercise the power, as in the case of a treaty, or a letter of marque and reprisal. The evils to be guarded against had not existed under the confederation; the states separately had not made treaties, granted letters of marque or reprisal, or coined money, in violation of those articles; the evils were wholly prospective, but were to be apprehended if any doubt whatever could be raised on the terms of grant of those powers. Hence the prohibition. Touching the third class of cases, bills of attainder, ex post facto laws, and titles of nobility, they were not subjects of any delegated powers to congress; but as they were opposed to the whole spirit of the people, and the constitution, it annulled all power, state and federal, to do these things; and the prohibition is, in its nature and object, absolute and illimitable. But the second class of prohibited cases, emitting bills of credit, tender laws, and those impairing the obligation of contracts, are widely different; the evils had existed, did exist, and must recur, if not prevented. Congress could not legislate on these subjects, much less control the states, on whom the powers of parliament, in all their transcendency, as well as the prerogative of the crown, devolved by the revo