ed. The object was a benign one, to It is admitted, that the expediency or inexpediency of a measure cannot be considered, in giving a construction to the Constitution. But when, in giving a construction to that instrument, it becomes necessary, as it does in some instances, to look into the mischiefs provided against; and the application becomes, to some extent, a matter of inference; the question of expediency must be considered. If the act of Missouri conferred benefits upon the people of the State, and was so guarded in its provisions as to protect them from all possible evil, no court would feel inclined to declare it to be unconstitutional and void, unless it was directly opposed to the letter and spirit of the Constitution. As the spirit of that provision was to protect the citizens of the States against the evils of a debased currency; and as the act under consideration, so far as it operated upon the people of Missouri, had no tendency to produce this evil, but to relieve against it, the spirit of the Constitution was not violated. Was the act of Missouri against its letter? Were the certificates issued by the State bills of credit?' They were not, if the definition of a bill of credit, as now given, be correct. Their circulation was not forced by statutory provision, in any form; there was no promise on their face to pay at any future day; in their form and substance, they bore little or no resemblance to the continental bills. They were calculated, from the manner in which they were created and circulated, to introduce none of the evils so deeply felt from the currency of the revolution. Suppose the State of Missouri had stamped certificates with a certain value, and provided that they should be received as money,according to the denominations 6 given them, could they have been called bills of credit? Certainly not; for they contained no promise of payment, to which the holder could give credit. Such an act, by a State, would most clearly be void; but not under the probits a State from issuing bills of credit.' vision of the Constitution, which prohiered a bill of credit, within the meaning Can any certificate or bill be considof the Constitution, to which the receiver must not give credit to the promise of bill of credit? Not a bill which will the State? Must it not, literally, be a be received in payment of public dues, when presented, but which the State promises to redeem at a future day. A substitution of the credit of the State for money, may be considered as an essential ingredient to constitute a whatever other designation may be given 'bill of credit. When this is wanting, to the thing - whether it be called pacalled a bill of credit.' The credit reper money, or a State bill, it cannot be fers to a future time of payment; and not to the confidence we feel in the punctuality of the State, in paying the which is payable on presentation, is not bill when presented. A bill, therefore, the Constitution; nor is a bill which a bill of credit, within the meaning of day; but a simple declaration, that it will contains no promise to pay at a future be received in payment of public dues. somewhat technical, it must be recolIf this course of argument appears lected that the question under consideration involves the validity of an act of ters, except where restrictions are ima State; which is sovereign in all matposed, and an express delegation of power is made to the Federal Government. The solemn act of a State, which has been sanctioned by all the branches of its power, cannot, under any circumstances, be lightly regarded. The act of Missouri having received the sanction of the legislative, executive, and judicial departments of the government, cannot be set aside and disregarded unstitution. der a doubtful construction of the Conquiescence in the act. Doubts should lead to an acwhich declares it null and void, should The power be exercised only where the right to do so is perfectly clear. That such a power is vested in this ceived the sanction of all the States can tribunal by the Constitution, which reonly be doubted by those who are inca pable of comprehending the plainest 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 proposition stated. If the certificates under consideration were bills of credit,' within the meaning of the Constitution, is the note on which this suit is brought void? The position assumed in the argument, that no contract can be valid that is founded upon a consideration which is contrary to good morals, against the policy of the law, or a positive statute, can. not be sustained to the extent as urged. The ground is admitted to be correct, generally; but there are exceptions which it becomes important to notice. In the State of Pennsylvania usury is prohibited under the sanction of certain penalties, but usury does not render the contract void; a recovery may be had upon it, with the legal rate of interest. It is competent for a State to prohibit gambling by a severe penalty; and yet to provide that an obligation given for money lost at gambling shall be valid. It may declare, by law, that all instruments for the payment of money, signed by the party, shall be held valid, without reference to the consider ation. The legislative power of a State over contracts is without restriction by the constitution of the United States; except that their obligation cannot be impaired. With this single exception, a State legislature may regulate contracts, both as to their form and substance, as may be thought advisable. Suppose the Constitution of Missouri had prohibited the emission of bills of credit, without going further; might not the legislature provide by law, that obligations given on a loan of such bills should be valid. There would be no more inconsistency in this than in the law of Pennsylvania, which forbids usury, and yet holds the instrument valid. If the Constitution of the United States had provided that all obligations given Suppose a State should coin money, would such money not constitute a valuable consideration for a promissory note? Would not the intrinsic value of the silver, as bullion, be a sufficient consideration? Would such a construction conflict with the Constitution? A State is prohibited from coining money; consequently the money which it may coin cannot be circulated as such. A creditor will be under no obligation to receive it in discharge of his debt. If any statutory provision of the State should be formed, with a view of forcing the circulation of such coin, by suspending the interest or postponing the debt of a creditor where it was refused, such statute would be void, because it would act on the thing prohibited, and come directly in conflict with the Constitution. Such would not be the case in reference to the obligation given for this coin. In the first place, the act would be voluntary on the part of the purchaser ; and in the second, the consideration would be a valuable one. The statute sanctions not the coin, but the obligation which was given for it. The act of creating the consideration may be denounced and punished, as in the case of usury in Pennsylvania; and yet the obligation held good. Would this construction render ineffectual the prohibition of the Constitution? This may be answered by considering how ineffectual this provision inust be, if its efficacy depend on making void the contract. The loaning of this coin is only one of many modes which a State might adopt to circulate it. In the payment of its creditors, and in works of improvement, the State could always find the most ample means of circulation. Effect is given to this provision of the Constitution, by limiting it to the thing prohibited. If a State emit hills of credit, or coin money, neither can pass as money, whatever may be the regulation on the subject. No penalties have been provided to prevent such a circulation; no sanctions to enforce it would be valid. But it is contended, that the offence consists in circulating the bills; that being the meaning of the word emit.' Congress may issue bills of credit, and perhaps have done so in the emissions of treasury notes is a State prohibited from circulating them? If not, it must be admitted, the violation of the Constitution consists, not in the circulation of such bills, but in their creation. The prohibition of the Constitution was intended to act on the sovereignty of a State, in its legislative capacity. But there is no power in the Federal Government which can act upon this sovereignty. It is only when its inhibited acts affect the rights of individuals, that the judicial power of the Union can be interposed. If a State legislature pass an ex post facto law, or a law impairing the obligation of contracts, it remains a harmless enactment on the statute book, until it is brought to bear, injuriously, on individual rights. So, if a State coin money or emit bills of credit, the question of right must be raised before this tribunal, in the same manner. The law of Missouri expressly sanctions the obligations given on a loan of these certificates. Had not this been done, and if the certificates were bills of credit within the meaning of the Constitution, the obligations might have been considered void, as against the policy of the supreme law of the land. There is no pretence that there has been a failure of consideration for which the notes in controversy were given. The certificates have long since been received by the State as money, and the promissors have realized their full value. If they can avoid the payment of their notes, as they wish to do by the defence set up, it must be alone on the ground of the illegality of the consideration. Suppose the notes had been given, under the same circumstances, payable to an individual, from whom the consideration had been received; could the defence be sustained? In such a case, there could be no allegation of a failure of consideration. The Constitution prohibits the State from issuing the certificates; but the law of Missouri declares, that obligations given for these certificates shall be valid. These notes, being given for a valuable consideration, may be enforced, unless the Constitution makes them void. This it does not do by express provision; and can they be avoided by inference ? An inference, which does not necessarily follow, as has been shown, from the prohibition; because such a consequence is prevented by the act of Missouri. This act may be void as to the emission of the bills; but it does not follow that the part which relates to the notes must also be void. It would seem, therefore, that effect may be given to the provision of the Constitution, so as to prevent the mischief, by operating upon the circulation of the bills, without extending the consequence so as to make void the contract expressly sanctioned by the law of Missouri. And if such a construction may be given, will not the court incline to give it, in order that both laws may be carried into full effect, where their provisions do not come directly in conflict? Had The passing of counterfeit money is prohibited under severe penalties, by the laws of every State; and is it not in the power of a State to provide by law, that every obligation given for counterfeit paper, known to be such by both parties, shall be valid? This will scarcely be denied. And if a State may do this, under its sovereign power to regulate contracts; may it not give validity to the notes under consideration? not the State of Missouri a right to provide that every citizen who should voluntarily execute an obligation for the payment of money to the State, should be held bound to pay it, although given without consideration? If this do not come within the province of legislation in a sovereign State, I know not where its powers may not be restricted. And if this may be done, can the notes under consideration be held void? If the certificates were illegally created, they were of value, and under the law of Missouri constituted a valuable consideration for the notes given. In any view, the notes which were executed being sanctioned by law, and consequently valid even without consideration, cannot be less so, when given for the certificates. I am therefore, inclined to say, not without great hesitation, as I differ with the majority of the court, that the judgment should be affirmed on this ground. In the first place, then, from the consideration which I have been able to give this case, I am not convinced that the certificates issued by the State of Missouri were bills of credit, within the meaning of the Constitution. And unless my conviction was clear on this point, my duty and inclination unite to sustain the judgment of the Supreme Court of Missouri. And secondly, as has been shown, it appears to me, that the contract on which this action is founded is not void; even admitting that the certificates were bills of credit? All questions of power, arising under the Constitution of the United States, whether they relate to the Federal or a State Government, must be considered of great importance. The Federal Government being formed for certain purposes, is limited in its powers, and can in no case exercise authority where the power has not been delegated. The States are sovereign; with the exception of certain powers, which have been invested in the General Government, and inhibited to the States. No State can coin money, emit bills of credit, pass ex post facto laws, or laws impairing the obligation of contracts, &c. If any State violate a provision of the Constitution, or be charged with such violation to the injury of private rights, the question is made before this tribunal; to whom all such questions, under the Constitution, of right belong. In such a case, this court is to the State, what its own Supreme Court would be, where the constitutionality of a law was questioned under the Constitution of the State. And within the delegation of power, the decision of this court is as final and conclusive on the State, as would be the decision of its own court in the case stated. : That distinct sovereignties could exist under one government, emanating from the same people, was a phenomenon in the political world, which the wisest statesmen in Europe could not comprehend and of its practicability many in our own country entertained the most serious doubts. Thus far the friends of liberty have had great cause of triumph in the success of the principles upon which our government rests. But all must admit that the purity and permanency of this system depend on its faithful administration. The States and the Federal Government have their respective orbits, within which each must revolve. If either cross the sphere of the other, the harmony of the system is destroyed, and its strength is impaired. It would be as gross usurpation on the part of the Federal Government, to interfere with State rights, by an exercise of powers not delegated, as it would be for a State to interpose its authority against a law of the Union. The judiciary of a State, in all cases brought before them, have a right to decide whether or not an act of the Federal Government be constitutional, the same as they have a right to determine on the constitutionality of an act under the State Constitution: but, in all such cases, this tribunal may supervise the decisions. It is often a difficult matter to define the limitations of the legislative, the executive, and the judicial pow ers of a State; and this difficulty is greater in defining the limitations of the Federal Government. In both cases, the respective Constitutions must be looked to as the source of power; but in the latter, it is often necessary to determine not only whether the power be vested, but whether it is inhibited to the State. Some powers in the General Government are exclusive; others concurrent with the States. The experience of many years may be necessary to establish, by practical illustrations, the exact boundaries of these powers, if indeed they can ever be clearly and satisfactorily defined. Like the colors of the rainbow, they seem to intermix, so as to render a separation extremely difficult, if not impracticable. By the exercise of a spirit of mutual forbearance, the line may be ascertained with sufficient precision for all practical purposes. In a State, where doubts exist as to the investure of power, it should not be exercised, but referred to the people in the General Government, should similar doubts arise, the powers should be referred to the States and the people. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Missouri, for the first judicial district, and was argued by counsel; on consideration whereof, this court is of opinion, that there is error in the rendition of the judgment of the said court in this, that in affirming the judgment rendered by the Circuit Court for the county of Chariton, that court has given an opinion in favor of the validity of the act of the legislature of Missouri, passed on the 27th of June, 1821, entitled an act for the establishment of loan offices,' which act is, in the opinion of this court, repugnant to the Constitution of the United States; whereupon it is con sidered by the court, that the said judged 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. nulled; 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 appeals from the District Court of the United States for the district of Missouri. In the District Court of Missouri, the appellants, under the act of Congress of the 26th of May, 1824, instituted proceedings to try the validity of their claims to certain lands in Missouri; the titles to which, they claimed to derive under the former Spanish Government. The District Court gave a decree against the claimants. The cases were argued by Mr Benton, for the appellants, and by Mr Wirt, for the United States. Mr Chief Justice Marshall stated, The court have held the two cases of Soulard and John T. Smith against the United States under advisement. After bestowing upon them the most deliberate attention, we are unable to form a judgment which would be satisfactory to ourselves, or which ought to satisfy the public. In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded country should be protected in the free enjoy. ment of their property. The United States as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract. The term property' as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory, as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away. In the full confidence that this is the sentiment by which the Government of the United States is animated, and which has been infused into its legislation, the Court have sought sedulously for that information which would enable it to discern the actual rights of the parties; and to distinguish between claims founded on legitimate contracts with those authorized to make them on the part of the crown, or its immediate agents, and such as were entirely dependent on the mere pleasure of those who might be in power; such as might be rejected without giving just cause of imputation against the faith of those in office. The search has been unavailing. When Louisiana was transferred to the United States, very few titles to lands in the upper part of that province especially, were complete. The practice seems to have prevailed for the deputy governor, sometimes the commandant of posts, to place individuals in possession of small tracts, and to protect that possession without further proceeding. Âny intrusion on this possession produced a complaint to the immediate supervising officer of the district or post, who inquired into it, and adjusted the dispute. The people seem to have remained contented with this condition. The colonial government, for some time previous to the cession, appears to have been without funds, and to have been in the habit of remunerating services with land instead of money. Many of these concessions remained incomplete. If the duty of deciding on these various titles is transferred by the government to the judicial department, the laws and principles on which they depend ought to be supplied. The edicts of the preceding governments in relation to the ceded territory; the powers given to the governors, whether expressed in their commissions, or in special instruction; and the powers conferred on and exercised by the deputy governors, and other inferior officers, who may have been authorized to allow the inception of title; are all material to a correct decision of the cases now before the court, and which may come before it. We cannot doubt the disposition of the government |