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military lands. The preamble to the recording act of January, 1794, shows very strongly the policy of compelling the deeds for these lands to be recorded; and the known condition of that part of the State, covered by military grants, presented equally cogent reasons, in our opinion, for the passage of the act in question. As this court is confined to the consideration of only one question growing out of this law, we do not think it necessary to examine its provisions in detail: it is sufficient to say, that we can see nothing in them inconsistent with the Constitution of the United States, or

the principles of sound legislation. Whether it is considered as an act of limitations, or one in the nature of a recording act, or as a law sui generis, called for by the peculiar situation of that part of the State on which it operates: we are unanimously of opinion, that it is not a law which impairs the obligation of a contract; and that in receiving the award in evidence, and declaring it to be competent and conclusive on the right of the plaintiff, there was no error in the judgment of the court below. The judgment is therefore affirmed.

Hiram Craig, John Moore, and Ephraim Moore vs. Missouri.

THIS was a writ of error to the Supreme Court of the State of Missouri.

The action arose on a promissory note given for certificates issued at the loan office of Chariton in Missouri, payable to the State of Missouri, under the act of the legislature establishing loan of fices.'

Mr Sheffey, for the plaintiffs in error, contended, that this act of the legislature was unconstitutional and void; being repugnant to the provision of the constitution of the United States, which declares that no State shall emit bills of credit.

Mr Benton appeared for the defendant

in error.

Mr Chief Justice Marshall delivered the opinion of the court: Justices Thompson, Johnson and McLean dissenting.

This is a writ of error to a judgment rendered in the court of last resort, in the state of Missouri; affirming a judgment obtained by the State in one of its inferior courts against Hiram Craig and others, on a promissory note.

The judgment is in these words: and afterwards at a court,' &c, the parties came into court by their attorneys, and, neither party desiring a jury, the cause is submitted to the court; therefore, all and singular the matters and things being seen and heard by the court, it is found by them, that the said defendants did assume upon themselves, in manner and form, as the plaintiff by her counsel alleged. And the court also find, that the consideration for which the writing declared upon and the assumpsit was

The State of

made, was for the loan of loan office certificates, loaned by the state at her loan office at Chariton; which certificates were issued, and the loan made in the manner pointed out by an act of the legislature of the said state of Missouri, approved the 27th day of June, 1821, entitled an act for the establishment of loan offices, and the acts amendatory and supplementary thereto : and the court do further find, that the plaintiff has sustained damages by reason of the nonperformance of the assumptions and undertakings of them, the said defendants, to the sum of two hundred and thirtyseven dollars and seventynine cents, and do assess her damages to that sum. Therefore it is considered,' &c.

The first inquiry is into the jurisdiction of the court.

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The twenty fifth section of the judicial act declares, that a final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question' the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity,' may be re-examined, and reversed or affirmed in the Supreme Court of the United States.'

To give jurisdiction to this court, it must appear in the record, 1. That the validity of a statute of the State of Missouri was drawn in question; on the ground of its being repugnant to the Constitution of the United States. 2.

That the decision was in favor of its validity.

1. To determine whether the validity of a statute of the State was drawn in question, it will be proper to inspect the pleadings in the cause, as well as the judgment of the court.

The declaration is on a promissory note, dated on the 1st day of August, 1522, promising to pay to the State of Missouri, on the 1st day of November, 1522, at the loan office in Chariton, the sum of one hundred and ninetynine dollars ninetynine cents, and the two per cent per annum, the interest accruing on the certificates borrowed from the 1st of October, 1821. This note is obviously given for certificates loaned under the act, for the establishment of loan offices.' That act directs that loans on personal securities shall be made of sums less than two hundred dollars. This note is for one hundred and ninetynine dollars ninetynine cents. The act directs that the certificates issued by the State shall carry two per cent interest from the date, which interest shall be calculated in the amount of the loan. The note promises to repay the sum, with the two per cent interest accruing on the certificates borrowed, from the 1st day of October, 1821. It cannot be doubted that the declaration is on a note given in pursuance of the act which has been mentioned.

Neither can it be doubted that the plea of non-assumpsit allowed the detendants to draw into question at the trial the validity of the consideration on which the note was given. Everything which disaffirms the contract, everything which shows it to be void, may be given in evidence on the general issue in an action of assumpsit. The defendants, therefore, were at liberty to question the validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it originated.

Have they done so ?

Had the cause been tried before a jury, the regular course would have been to move the court to instruct the jury that the act of assembly, in pursuance of which the note was given, was repugnant to the Constitution of the United States; and to except to the charge of the judges, if in favor of its validity; or a special verdict might have been found by the jury, stating the act of assembly, the execution of the note in payment of certificates loaned in pursuance of that act; and referring its valid

ity to the court. The one course or the other would have shown that the validity of the act of assembly was drawn into question, on the ground of its repugnancy to the Constitution; and that the decision of the court was in favor of its validity. But the one course or the other, would have required both a court and jury. Neither could be pursued where the office of the jury was performed by the court. In such a case, the obvious substitute for an instruction to the jury, or a special verdict, is a statement by the court of the points in controversy, on which its judgment is founded. This may not be the usual mode of proceeding, but it is an obvious mode; and if the court of the state has adopted it, this court cannot give up substance for form.

The arguments of counsel cannot be spread on the record. The points urged in argument cannot appear. But the motives stated by the court on the record for its judgment, and which form a part of the judgment itself, must be considered as exhibiting the points to which those arguments were directed, and the judgment as showing the decision of the court upon those points. There was no jury to find the facts and refer the law to the court; but if the court, which was substituted for the jury, has found the facts on which its judgment was rendered: its finding must be equivalent to the finding of a jury. Has the court, then, substituting itself for a jury, placed facts upon the record, which, connected with the pleadings, show that the act in pursuance of which this note was executed was drawn into question, on the ground of its repugnancy to the Constitution?

After finding that the defendants did assume upon themselves, &c, the court proceeds to find that the consideration for which the writing declared upon and the assumpsit was made, was the loan of loan office certificates loaned by the State at her loan office at Chariton; which certificates were issued and the loan made, in the manner pointed out by an act of the legislature of the said State of Missouri, approved the 27th of June, 1821, entitled,' &c.

Why did not the court stop immediately after the usual finding that the defendants assumed upon themselves? Why proceed to find that the note was given for loan office certificates issued under the act contended to be unconstitutional, and loaned in pursuance of that act; if the matter thus found was irrelevant to the question they were to decide?

Suppose the statement made by the

court to be contained in the verdict
of a jury which concludes with referring
to the court the validity of the note thus
taken in pursuance of the act; would
not such a verdict bring the constitution-
ality of the act, as well as its construc-
We
tion, directly before the court?
think it would; such a verdict would
find that the consideration of the note
was loan office certificates, issued and
loaned in the manner prescribed by the
act. What could be referred to the
court by such a verdict, but the obliga-
tion of the law? It finds that the certifi-
cates for which the note was given, were
issued in pursuance of the act, and that
the contract was made in conformity with
it. Admit the obligation of the act, and
the verdict is for the plaintiff; deny its
obligation, and the verdict is for the de-
fendant. On what ground can its obli-
gation be contested, but its repugnancy
to the Constitution of the United States?
No other is suggested. At any rate, it is
open to that objection. If it be in truth
repugnant to the Constitution of the Uni-
ted States, that repugnancy might have
been urged in the State, and may conse-
quently be urged in this court; since it
is presented by the facts in the record
which were found by the court that
tried the cause.

It is impossible to doubt that, in point of fact, the constitutionality of the act under which the certificates were issued that formed the consideration of this note, constituted the only real question made by the parties, and the only real question decided by the Court. But the record is to be inspected with judicial eyes; and, as it does not state in express terms that this point was made, it has been contended that this Court cannot assume the fact that it was made or determined in the tribunal of the State.

The record shows distinctly that this point existed, and that no other did exist; the special statement of facts made by the Court as exhibiting the foundation of its judgment contains this point and no other. The record shows clearly that the cause did depend, and must depend, on this point alone. If in such a case, the mere omission of the Court of Missouri, to say, in terms, that the act of the legislature was constitutional, withdraws that point from the cause, or must close the judicial eyes of the appellate tribunal upon it; nothing can be more obvious, than that the provisions of the Constitution, and of an act of Congress, may be always evaded; and may be often, as we think they would be in this case, unintentionally defeated.

But this question has frequently occurred and has, we think, been frequently decided in this Court. Smith vs. The State of Maryland, 6 Cranch, 286. Martin vs. Hunter's Lessee, 1 Wheat. 255. Miller vs. Nicholls, 4 Wheat. 311. Williams vs. Norris, 12 Wheat. 117. Wilson and others vs. The Black Bird Creek Marsh Company, 2 Peters, 245, and Harris vs. Dennie, in this term; are all, we think, expressly in point. There has been perfect uniformity in the construction given by this court to the twenty fifth section of the judicial act. That construction is, that it is not necessary to state, in terms, on the record, that the Constitution, or a treaty or law of the United States has been drawn in question, or the validity of a State law, on the ground of its repugnancy to the Constitution. It is sufficient if the record shows that the Constitution, or a treaty or law of the United States must have been construed, or that the constitutionality of a State law must have been questioned; and the decision has been in favor of the party claiming under such law.

We think, then, that the facts stated on the record presented the question of repugnancy between the Constitution of the United States and the act of Missouri to the court for its decision. If it was presented, we are to inquire,

2. Was the decision of the Court in favor of its validity?

The judgment in favor of the plaintiff is a decision in favor of the validity of the contract, and consequently of the validity of the law by the authority of which the contract was made.

The case is, we think, within the twentyfifth section of the judicial act, and consequently within the jurisdiction of this court.

This brings us to the great question in the cause; Is the act of the legislature of Missouri repugnant to the Constitution of the United States?

The counsel for the plaintiffs in error maintain that it is repugnant to the Constitution, because its object is the emission of bills of credit contrary to the express prohibition contained in the tenth section of the first article.

The act under the authority of which the certificates loaned to the plaintiff's in error were issued, was passed on the 26th of June, 1821, and is entitled an act for the establishment of loan offices.' The provisions that are material to the present inquiry, are comprehended in the third, thirteenth, fifteenth, sixteenth,

twentythird and twentyfourth sections of the act, which are in these words:

Section the third enacts: that the auditor of public accounts and treasurer, under the direction of the governor, shall and they are hereby required to issue certificates, signed by the said auditor and treasurer, to the amount of two hundred thousand dollars, of denominations not exceeding ten dollars, nor less than fifty cents (to bear such devices as they may deem the most safe,) in the following form, to wit: "This certificate shall be receivable at the treasury, or any of the loan offices of the State of Missouri, in the discharge of taxes or debts due to the State for the sum of $ with interest for the same, at the rate of two per centum per annum from this date, theday of .182.""

The thirteenth section declares; that the certificates of the said loan office shall be receivable at the treasury of the State, and by all tax gatherers and other public officers, in payment of taxes or other moneys now due to the State or to any county or town therein and the said certificates shall also be received by all officers civil and military in the State, in the discharge of salaries and fees of office.'

The fifteenth section provides: that the commissioners of the said loan offices shall have power to make loans of the said certificates, to citizens of this State, residing within their respective districts only, and in each district a proportion shall be loaned to the citizens of each county therein, according to the number thereof,' &c.

Section sixteenth. That the said commissioners of each of the said offices are further authorized to make loans on personal securities by them deemed good and sufficient, for sums less than two hundred dollars: which securities shall be jointly and severally bound for the payment of the amount so loaned, with interest thereon,' &c.

Section twentythird. That the general assembly shall, as soon as may be, cause the salt springs and lands attached thereto, given by Congress to this State, to be leased out, and it shall always be the fundamental condition in such leases, that the lessee or lessees shall receive the certificates hereby required to be issued, in payment for salt, at a price not exceeding that which may be prescribed by law and all the proceeds of the said salt springs, the interest accruing to the State, and all estates purchased by officers of the said several offices under the provisions of this act, and all the debts now due or hereafter to be due to this

:

State; are hereby pledged and constituted a fund for the redemption of the certificates hereby required to be issued, and the faith of the State is hereby also pledged for the same purpose.'

Section twentyfourth. That it shall be the duty of the said auditor and treasurer to withdraw annually from circulation, one tenth part of the certificates which are hereby required to be issued,' &c.

The clause in the Constitution which this act is supposed to violate, is in these words: No State shall''emit bills of credit.'

What is a bill of credit? What did the Constitution mean to forbid ?

In its enlarged, and perhaps its literal sense, the term 'bill of credit' may comprehend any instrument by which a State engages to pay money at a future day; thus including a certificate given for money borrowed. But the language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word 'emit,' is never employed in describing those contracts by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use; nor are instruments executed for such purposes, in common language, denominated 'bills of credit.' To emit bills of credit,' conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day. This is the sense in which the terms have been always understood.

At a very early period of our colonial history, the attempt to supply the want of the precious metals by a paper medium was made to a considerable extent; and the bills emitted for this purpose have been frequently denominated bills of credit. During the war of our revolution, we were driven to this expedient; and necessity compelled us to use it to a most fearful extent. The term has acquired an appropriate meaning; and 'bills of credit' signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society. Such a medium has been always liable to considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and

man. To cut up this mischief by the roots, a mischief which was felt through the United States, and which deeply affected the interest and prosperity of all; the people declared in their Constitution, that no State should emit bills of credit. If the prohibition means any thing, if the words are not empty sounds, it must comprehend the emission of any paper medium, by a State Government, for the purpose of common circulation." What is the character of the certificates issued by authority of the act under consideration? What office are they to perform? Certificates signed by the auditor and treasurer of the State, are to be issued by those officers to the amount of two hundred thousand dollars, of denominations not exceeding ten dollars, nor less than fifty cents. The paper purports, on its face to be receivable at the treasury, or at any loan office of the State of Missouri, in discharge of taxes or debts

due to the State.

The law makes them receivable in discharge of all taxes, or debts due to the State, or any County or town therein; and of all salaries and fees of office, to all officers civil and military within the State; and for salt sold by the lessees of the public salt works. It also pledges the faith and funds of the State for their redemption.

It seems impossible to doubt the intention of the legislature in passing this act, or to mistake the character of these certificates, or the office they were to perform. The denominations of the bills, from ten dollars to fifty cents, fitted them for the purpose of ordinary circulation; and their reception in payment of taxes, and debts to the government and to corporations, and of salaries and fees, would give them currency. They were to be put into circulation; that is, emitted, by the government. In addition to all these evidences of an intention to make these certificates the ordinary circulating medium of the country, the law speaks of them in this character; and directs the auditor and treasurer to withdraw annually one tenth of them from circulation. Had they been termed bills of credit,' instead of certificates,' nothing would have been wanting to bring them within the prohibitory words of the Constitu

tion.

And can this make any real difference? Is the proposition to be maintained, that the Constitution meant to prohibit names and not things? That a very important act, big with great and ruinous mischief, which is expressly forbidden by words most appropriate for its description, may

be performed by the substitution of a name? That the Constitution, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so. We think the certificates emitted under the authority of this act, are as entirely bills of credit, as if they had been so denominated in the act itself.

But it is contended, that though these certificates should be deemed bills of credit, according to the common acceptation of the term, they are not so in the sense of the Constitution; because they are not made a legal tender.

The Constitution itself furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit, not to bills of a particular description. That tribunal must be bold indeed, which, without the aid of other explanatory words, could venture on this construction. It is the less admissible in this case, because the same clause of the Constitution contains a substantive prohibition to the enactment of tender laws. The Constitution, therefore, considers the emission of bills of credit, and the enactment of tender laws, as distinct operations, independent of each other, which may be separately performed. Both are forbidden. To sustain the one, because it is not also the other; to say that bills of credit may be emitted, if they be not made a tender in payment of debts; is, in effect, to expunge that distinct independent prohibition, and to read the clause as if it had been entirely omitted. We are not at liberty to do this.

The history of paper money has been referred to, for the purpose of showing that its great mischief consists in being made a tender; and that therefore the general words of the Constitution may be restrained to a particular intent.

Was it even true, that the evils of paper money resulted solely from the quality of its being made a tender, this court would not feel itself authorized to disregard the plain meaning of words, in search of a conjectural intent to which we are not conducted by the language of any part of the instrument. But we do not think that the history of our country proves either, that being made a tender in payment of debts, is an essential quality of bills of credit, or the only mischief resulting from them. It may, indeed, be the most pernicioùs; but that will not authorize a court to convert a general into a particular prohibition.

We learn from Hutchinson's History

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