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ed. The object was a benign one, to given them, could they have been called relieve the citizens from an extraordi. bills of credit? Certainly not; for they nary pressure, produced by the failure of contained no promise of payment, to local banks, and the utter worthlessness which the holder could give credit. of the currency. Without aid from the Such an act, by a State, would most government, the citizens of Missouri clearly be void ; but not under the procould not have paid the taxes or debts vision of the Constitution, which prohiwhich they owed to the State in a me- bits a State from issuing bills of credit.' dium of any value. At such a crisis the Can any certificate or bill be considlaw was enacted; and, as contemplated ered a bill of credit, within the meaning in its passage, so soon as the necessary of the Constitution, to which the receive relief was afforded, the paper was with. er must not give credit to the promise of drawn from circulation. The measure the State ? Must it not, literally, be a was only felt in the benefits it conferred. bill of credit?' Not a bill which will No loss was sustained by the public or be received in payment of public dues, by individuals ; unless indeed the State when presented, but which the State shall lose by the unconscionable defence promises to redeem at a future day. set up to these actions.

A substitution of the credit of the It is admitted, that the expediency or State for money, may be considered as inexpediency of a measure cannot be an essential ingredient to constitute a considered, in giving a construction to "bill of credit. When this is wanting, the Constitution. But when, in giving whatever other designation may be given a construction to that instrument, it be- to the thing — whether it be called pacomes necessary, as it does in some per money, or a State bill, it cannot be instances, to look into the mischiefs pro- called a · bill of credit.' The credit revided against ; and the application be- fers to a future time of payment; and comes, to some extent, a matter of infer- not to the confidence we feel in the ence ; the question of expediency must punctuality of the State, in paying the be considered.

bill when presented. A bill, therefore, If the act of Missouri conferred bene- which is payable on presentation, is not fits upon the people of the State, and was a bill of credit, within the meaning of so guarded in its provisions as to protect the Constitution ; nor is a bill which them from all possible evil, no court contains no promise to pay at a future would feel inclined to declare it to be day; but a simple declaration, that it will unconstitutional and void, unless it was be received in payment of public dues. directly opposed to the letter and spirit If this course of argument appears of the Constitution. As the spirit of that somewhat technical, it must be recol. provision was to protect the citizens of lected that the question under considerthe States against the evils of a debased ation involves the validity of an act of currency; and as the act under consider- a State ; which is sovereign in all matation, so far as it operated upon the people ters, except where restrictions are imof Missouri, had no tendency to pro- posed, and an express delegation of powduce this evil, but to relieve against it, er is made to the Federal Government. the spirit of the Constitution was not vio- The solemn act of a State, which has lated. Was the act of Missouri against been sanctioned by all the branches of its letter? Were the certificates issued its power, cannot, under any circumby the State bills of credit?' They were stances, be lightly regarded. The act not, if the definition of a bill of credit, of Missouri having received the sancas now given, be correct. Their circu- tion of the legislative, executive, and lation was not forced by statutory provi- judicial departments of the government, sion, in any form ; there was no promise cannot be set aside and disregarded unon their face to pay at any future day; der a doubtful construction of the Conin their form and substance, they bore stitution. Doubts should lead to an ac. little or no resemblance to the continental quiescence in the act.

The power bills. They were calculated, from the which declares it null and void, should manner in which they were created and be exercised only where the right to do circulated, to introduce none of the evils so is perfectly clear. so deeply felt from the currency of the That such a power is vested in this revolution.

tribunal by the Constitution, which reSuppose the State of Missouri had ceived the sanction of all the States can stamped certificates with a certain value, only be doubted by those who are inca and provided that they should be received pable of comprehending the plainest as money,according to the denominations principle in constitutional law. It is a


question arising under the Constitution, for bills of credit, or where they formed and all such questions of power, wheth- a part of the consideration, should be er in the general or State Governments, void, there could have existed no doubt belong to this tribunal. The policy of on the subject. But there is no such this investure of power may be ques. provision; and if the obligation be held tioned; but the fact of its existence can- void, its invalidity is a matter of influnot be. Believing that in every point of ence, arising from the supposed illegality view in which the paper issued by the of the consideration. The Constitution State of Missouri may be considered, it prohibits a State from emitting bills of is at least doubtful whether it comes credit.' The law of Missouri declares, within the meaning of a “ bill of credit,' substantially, that obligations given, prohibited by the Constitution; I am where these bills form the consideration, inclined to affirm the judgment of the shall be held valid. Is there an incomState court. But if this ground of the patibility in these provisions ? Does the defence be admitted, does it follow that latter destroy the former, or render it the judgment must be reversed. This ineffectual ? presents for consideration the second Suppose a State should coin money, proposition stated.

would such inoney not constitute a val. If the certificates under consideration uable consideration for a promissory note? were · bills of credit,' within the mean- Would not the intrinsic value of the ing of the Constitution, is the note on silver, as bullion, be a sufficient considwhich this suit is brought void?

eration? Would such a construction The position assumed in the argument, conflict with the Constitution? that no contract can be valid that is A State is prohibited from coining founded upon a consideration which is money ; consequently the money which contrary to good morals, against the pol. it may coin cannot be circulated as such. icy of the law, or a positive statute, can. A creditor will be under no obligation not be sustained to the extent as urged. to receive it in discharge of his debt. The ground is admitted to be correct, If any statutory provision of the State generally; but there are exceptions should be formed, with a view of forcwhich it becomes important to notice. ing the circulation of such coin, by sus

In the State of Pennsylvania usury is pending the interest or postponing the prohibited under the sanction of certain debt of a creditor where it was refused, penalties, but usury does not render the such statute would be void, because it contract void ; a recovery may be had would act on the thing prohibited, and upon it, with the legal rate of interest.come directly in conflict with the ConIt is competent for a State to prohibit stitution. Such would not be the case gambling by a severe penalty ; and yet in reference to the obligation given for to provide that an obligation given for this coin. money lost at gambling shall be valid. In the first place, the act would be It may declare, by law, that all in- voluntary on the part of the purchaser; struments for the payment of mo- and in the second, the consideration ney, signed by the party, shall be held would be a valuable one. The statute valid, without reference to the consider. sanctions not the coin, but the obligation ation. The legislative power of a State which was given for it. The act of creover contracts is without restriction by ating the consideration may be denounce the constitution of the United States; ed and punished, as in the case of usury except that their obligation cannot be in Pennsylvania; and yet the obligation impaired. With this single exception, held good. Would this construction rena State legislature may regulate con- der ineffectual the prohibition of the tracts, both as to their form and substance, Constitution ? This may be answered as may be thought advisable.

by considering how ineffectual this proSuppose the Constitution of Missouri vision inust be, if its efficacy depend on had prohibited the emission of bills of making void the contract. credit, without going further; might The loaning of this coin is only one not the legislature provide by law, that of many modes which a State might obligations given on a loan of such bills adopt to circulate it. In the payment of should be valid. There would be no its creditors, and in works of improve. more inconsistency in this than in the ment, the State could always find the law of Pennsylvania, which forbids usu- most ample means of circulation. ry, and yet holds the instrument valid. Effect is given to this provision of If the Constitution of the United States the Constitution, by limiting it to the had provided that all obligations given thing prohibited. If a State emit bills late contracts; may it not give validity The law of Missouri expressly sanc- to the notes under consideration ? Had tions the obligations given on a loan of not the State of Missouri a right to prothese certificates. Had not this been vide that every citizen who should voldone, and if the certificates were bills untarily execute an obligation for the of credit within the meaning of the payment of money to the State, should Constitution, the obligations might have be held bound to pay it, although given been considered void, as against the pol- without consideration ? If this do not icy of the supreme law of the land. come within the province of legislation



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of credit, or coin money, neither can These notes, being given for a valuable pass as money, whatever may be the consideration, may be enforced, unless regulation on the subject. No penalties the Constitution makes them void. have been provided to prevent such a This it does not do by express provision ; circulation; no sanctions to enforce it and can they be avoided by inference ? would be valid.

An inference, which does not necessarily But it is contended, that the offence follow, as has been shown, from the consists in circulating the bills; that prohibition; because such a consequence being the meaning of the word 'emit. is prevented by the act of Missouri. Congress may issue bills of credit, and This act may be void as to the emission perhaps have done so in the emissions of of the bills; but it does not follow that treasury notes : is a State prohibited the part which relates to the notes must from circulating them? If not, it must also be void. It would seem, therefore, be admitted, the violation of the Consti- that effect may be given to the provision tution consists, not in the circulation of of the Constitution, so as to prevent the such bills, but in their creation. mischief, by operating upon the circu

The prohibition of the Constitution lation of the bills, without extending was intended to act on the sovereignty the consequence so as to make void the of a State, in its legislative capacity: contract expressly sanctioned by the law But there is no power in the Federal of Missouri. And if such a construction Government which can act upon this may be given, will not the court incline sovereignty. It is only when its inhib- to give it, in order that both laws may be ited acts affect the rights of individuals, carried into full effect, where their prothat the judicial power of the Union can visions do not come directly in conflict ? be interposed.

The passing of counterfeit money is If a State legislature pass an ex post prohibited under severe penalties, by facto law, or a law impairing the obliga- the laws of every State; and is it not tion of contracts, it remains a harmless in the power of a State to provide by enactment on the statute book, until it law, that every obligation given for counis brought to bear, injuriously, on indi- terfeit paper, known to be such by both vidual rights. So, if a State coin mo- parties, shall be valid? This will scarceney or emit bills of credit, the question ly be denied. And if a State may do of right must be raised before this tribu. this, under its sovereign power to regunal, in the same manner.

There is no pretence that there has in a sovereign State, I know not where been a failure of consideration for which its powers may not be restricted. And the notes in controversy were given. if this may be done, can the notes unThe certificates have long since been der consideration bé held void ? If the received by the State as money, and the certificates were illegally created, they promissors have realized their full value. were of value, and under the law of If they can avoid the payment of their Missouri constituted a valuable considnotes, as they wish to do by the defence eration for the notes given. In any set up, it must be alone on the ground view, the notes which were executed of the illegality of the consideration. being sanctioned by law, and conseSuppose the notes had been given, under quently valid even without considerathe same circumstances, payable to an tion, cannot be less so, when given for individual, from whom the consideration the certificates. I am therefore, inhad been received ; could the defence clined to say, not without great hesitabe sustained?

tion, as I differ with the majority of the In such a case, there could be no alle- court, that the judgment should be afgation of a failure of consideration. firmed on this ground. The Constitution prohibits the State In the first place, then, from the confrom issuing the certificates ; but the sideration which I have been able to law of Missouri declares, that obligations give this case, I am not convinced that given for these certificates shall be valid. the certificates issued by the State of

Missouri were bills of credit, within to interfere with State rights, by an the meaning of the Constitution. And exercise of powers not delegated, as unless my conviction was clear on it would be for a State to interpose this point, my duty and inclination unite its authority against a law of the to sustain the judgment of the Su- Union. preme Court of Missouri.

And sec- The judiciary of a State, in all cases ondly, as has been shown, it appears brought before them, have a right to to me, that the contract on which this decide whether or not an act of the Feaction is founded is not void; even deral Government be constitutional, the admitting that the certificates were same as they have a right to determine bills of credit ?

on the constitutionality of an act under All questions of power, arising under the State Constitution : but, in all such the Constitution of the United States, cases, this tribunal may supervise the whether they relate to the Federal or a decisions. It is often a difficult matter State Government, must be considered to define the limitations of the legislaof great importance. The Federal Gov- tive, the executive, and the judicial powernment being formed for certain pur- ers of a State ; and this difficulty is poses, is limited in its powers, and can greater in defining the limitations of the in no case exercise authority where the Federal Government. - In both cases, power has not been delegated. The the respective Constitutions must be States are sovereign ; with the excep- looked to as the source of power; but tion of certain powers, which have in the latter, it is often necessary to debeen invested in the General Govern- termine not only whether the power be ment, and inhibited to the States. No vested, but whether it is inhibited to the State can coin money, emit bills of State. Some powers in the General credit, pass ex post facto laws, or laws Government are exclusive ; others conimpairing the obligation of contracts, current with the States. The experi&c. If any State violate a provision ence of many years may be necessary of the Constitution, or be charged with to establish, by practical illustrations, the such violation to the injury of private exact boundaries of these powers, if inrights, the question is made before this deed they can ever be clearly and satistribunal; to whom all such questions, factorily defined. Like the colors of the under the Constitution, of right belong: rainbow, they seem to intermix, so as In such a case, this court is to the to render a separation extremely diffiState, what its own Supreme Court cult, if not im practicable. By the exwould be, where the constitutionality ercise of a spirit of mutual forbearance, of a law was questioned under the the line may be ascertained with suffiConstitution of the State. And with- cient precision for all practical purin the delegation of power, the deci- poses. In a State, where doubts exist sion of this court is as final and con- as to the investure of power, it should clusive on the State, as would be the not be exercised, but referred to the decision of its own court in the case people in the General Government, stated.

should similar doubts arise, the powers That distinct sovereignties could exist should be referred to the States and the under one government, emanating from people. the same people, was a phenomenon in the political world, which the wisest This cause came on to be heard on the statesmen in Europe could not compre- transcript of the record from the Suhend : and of its practicability many in preme Court of the State of Missouri, our own country entertained the most for the first judicial district, and was serious doubts. Thus far the friends of argued by counsel; on consideration liberty have had great cause of triumph whereof, this court is of opinion, that in the success of the principles upon there is error in the rendition of the which our government rests. But all judgment of the said court in this, that must admit that the purity and per- in affirming the judgment rendered by manency of this system depend on its the Circuit Court for the county of faithful administration. The States Chariton, that court has given an opinion and the Federal Government have their in favor of the validity of the act of the respective orbits, within which each legislature of Missouri, passed on the must revolve. If either cross the sphere 27th of June, 1821, entitled ' an act for of the other, the harmony of the system the establishment of loan offices,' which is destroyed, and its strength is impair- act is, in the opinion of this court, reed. It would be as gross usurpation pugnant to the Constitution of the on the part of the Federal Government, United States ; whereupon it is con


sidered by the court, that the said judg.ed and annulled; and the cause remandment of the said Supreme Court of the ed to that court, with directions to enter State of Missouri for the first judicial judgment in favor of the defendant to district ought to be reversed and an. the original action. pulled; and the same is hereby revers

John Soulard, Widow and others, Appellants vs. The United States,

John T. Smith, Appellant vs. The United States.

These cases came before the Court, on information which would enable it to appeals from the District Court of the discern the actual rights of the parties ; United States for the district of Missouri. and to distinguish between claims found

In the District Court of Missouri, the ed on legitimate contracts with those appellants, under the act of Congress of authorized to make them on the part of the 26th of May, 1824, instituted proceed- the crown, or its immediate agents, and ings to try the validity of their claims to such as were entirely dependent on the certain lands in Missouri ; the titles to mere pleasure of those who might be in which, they claimed to derive under the power; such as might be rejected withformer Spanish Government. ,

out giving just cause of imputation The District Court gave a decree against the faith of those in office. The against the claimants.

search has been unavailing. The cases were argued by Mr Benton, When Louisiana was transferred to the for the appellants, and by Mr Wirt, for United States, very few titles to lands in the United States.

the upper part of that province especially,

were complete. The practice seems to Mr Chief Justice Marshall stated, have prevailed for the deputy governor, The court have held the two cases of sometimes the commandant of posts, tó Soulard and John T. Smith against the place individuals in possession of small United States under advisement. After tracts, and to protect that possession bestowing upon them the most deliberate without further proceeding; Any intruattention, we are unable to form a sion on this possession produced a comjudgment which would be satisfactory plaint to the immediate supervising offiio ourselves, or which ought to satisfy cer of the district or post, who inquired the public.

into it, and adjusted the dispute. The In the treaty by which Louisiana was people seem to have remained contented acquired, the United States stipulated with this condition. The colonial govthat the inhabitants of the ceded country ernment, for some time previous to the should be protected in the free enjoy; cession, appears to have been without ment of their property. The United funds, and to have been in the habit of States as a just nation, regard this stipu- remunerating services with land instead lation as the avowal of a principle of money. Many of these concessions which would have been held equally sa- remained incomplete. cred, though it had not been inserted in If the duty of deciding on these various the contract.

titles is transferred by the government The term property' as applied to to the judicial department, the laws and lands, comprehends every species of title principles on which they depend ought inchoate or complete. It is supposed to to be supplied. The edicts of the preembrace those rights which lie in ceding governments in relation to the contract; those which are executory, as ceded territory; the powers given to the well as those which are executed. In governors, whether expressed in their this respect the relation of the inhabi. commissions, or in special instruction ; tants to their government is not changed. and the powers conferred on and exerThe new government takes the place of cised by the deputy governors, and other that which has passed away.

inferior officers, who may have been auIn the full confidence that this is the thorized to allow the inception of title ; sentiment by which the Government of are all material to a correct decision of the United States is animated, and which the cases now before the court, and has been infused into its legislation, the which may come before it. We cannot Court have sought sedulously for that doubt the disposition of the government


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