The more important question upon the merits of the case is, whether the Constitution of the United States interposes any impediment to the plaintiff's right of recovery in this case. And this question has been presented at the bar under the following points:

1. Whether the certificates issued under the provisions of the law of the State of Missouri, are bills of credit, within the sense and meaning of the Constitution.

2. If so, whether, as they formed the consideration of the note on which the judgment below was recovered, the note was rendered thereby void and irrecoverable.

The first is a very important question, and not free from difficulty; and one upon which I have entertained serious doubts: but looking at it in all its bearings, and considering the consequences to which the rule established by a majority of the court will lead, when carried out to its full extent, I am compelled to dissent from the opinion pronounced in this case.

The limitation upon the powers of the State of Missouri, which is supposed to have been transcended, is contained in the tenth section of the first article of the Constitution of the United States, 'No State shall emit bills of credit.' Are the certificates issued under the authority of the Missouri law, bills of credit within this prohibition?

The form of the certificate is prescribed in the third section of the act (act 27th of June, 1821,) as follows:

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 two per centum per annum, from this date,' &c. And 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, or to become due to the State, or 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.' It is proper here to notice, that if the latter branch of this section should be considered as conflicting with that prohibition in the Constitution, which declares that no State shall make anything but gold and siver coin a tender in payment of debts; no such question is

involved in the case now before the court, and the law may be good in part, although bad in part.

The precise meaning and interpretation of the terms, bills of credit, has no where been settled; or if it has, it has not fallen within my knowledge. As used in the Constitution, it certainly cannot be applied to all obligations, or vouchers, given by, or under the authority of a State for the payment of money. The right of a State to borrow money cannot be questioned; and this necessarily implies the right of giving some voucher for the repayment: and it would seem to me difficult to maintain the proposition, that such voucher cannot legally and constitutionally assume a negotiable character; and as such, to a certain extent, pass as, or become a substitute for, money. The act does not profess to make these certificates a circulating medium, or substitute for money. They are (except as relates to public officers) made receivable only for taxes and debts due to the State, and for salt sold by the lessees of salt springs belonging to the State. These are special and limited objects; and these certificates cannot answer the purpose of a circulating medium to any considerable extent.

A simple promise to pay a sum of money, a bond or other security given for the payment of the same, cannot be considered a bill of credit, within the sense would take from the States all power to of the Constitution. Such a construction borrow money, or execute any obligation for the repayment. The natural and literal meaning of the terms, import a bill drawn on credit merely, and not bottomed upon any real or substantial fund for its redemption. There is a material and well known distinction between a bill drawn upon a fund, and one drawn upon credit only. A bill of credit may therefore be considered a bill drawn and resting merely upon the credit of the drawer; as contradistinguished from a fund constituted or pledged for the payment of the bill. Thus, the Constitution vests in Congress the power to borrow money on the credit of the United States. A bill drawn under such authority would be a bill of credit. And this idea is more fully expressed in the old Confederation (Art. 9). 'Congress shall have power to borrow money or emit bills on the credit of the United States.' Can the certificates issued under the Missouri law, according to the fair and reasonable construction of the act, be said to rest on the credit of the

tion in the following terms, viz. For that whereas, heretofore, on the 1st day of August, in the year of our Lord 1822, at the county, &c, the said Craig, John Moore and Ephraim Moore made their certain promissory note in writing, bearing date, &c, and then and there, for value received, jointly and severally, promised to pay to the State of Missouri, on the 1st day of November, 1822, at the loan office in Chariton, the sum of one hundred and ninetynine dollars and ninetynine cents, and the two per centum per annum, the interest accruing on the certificates borrowed from the 1st day of October, 1821, nevertheless,' &c.

The general issue of non assumpsit having been pleaded in each case, the Circuit court of Chariton, in which the suits were commenced, rendered judg. ments in favor of the plaintiff. The following entry, in the case of Craig and others, was made on the record. And afterwards at a court begun and held at Chariton, on Monday the 1st of November, 1824, and on the second day of said court, the parties by their attorneys appeared, and neither party requiring a jury, the cause is submitted to the court; therefore, all and singular the matters and things and evidences 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's counsel allege: and the court also find that the consideration for which the writing declared upon and the assumpsit was 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 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 hath sustained damages, by reason of the non-performance of the assumptions and undertakings of the said defendants, to the sum of two hundred and thirtyseven dollars and seventynine cents. Therefore it is considered,' &c.

An appeal was taken to the Supreme Court of Missouri, in which this judgment and the others were affirmed.

The first question which this case presents for consideration, arises under the twentyfifth section of the judiciary act of 1789; which provides, 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 upon a writ of error.

Had not the point been settled by several adjudications in similar cases, I should entertain strong doubts whether it sufficiently appeared on the record, that the validity of the statute of Missouri was drawn in question, on account of its repugnance to the Constitution. In the finding of the Chariton Circuit Court, the act is referred to, and the consideration of the note is stated; but it no where appears in the record, that the validity of the statute was contested. And as this is the only ground on which this court can take jurisdiction of the case, it would seem to me that it should not be left to inference, but be clearly stated in the proceeding.

In the Supreme Court of Missouri, the judgment of the Circuit Court was affirmed: but it does not appear what objections to the affirmance were urged before the court. This question, however, seems not to be open, and I yield to the force of prior adjudications. Two points must necessarily be considered in the investigation of the merits of this case.

1. Are the certificates authorized to

be issued by the law of Missouri, bills of credit, within the meaning of the Constitution ?

2. If they are bills of credit, is the note on which this suit was brought void.

It is contended by the counsel for the plaintiffs in error, that any paper issued by a State, that contains a promise to pay a certain sum, and is intended to be used as a medium of circulation, is a bill of credit, and comes within the mischief against which the Constitution intended to guard. In illustration of this position, a reference is made to the depreciated currency of the Revolution.

During that most eventful period of our history, bills of credit formed the currency of the country; and everything of greater value was excluded from circulation. These bills were so multiplied by the different States and by Congress, that their value was greatly impaired. This loss was attempted to be covered, and the growing wants of

the Government supplied, by increased emissions. These caused a still more rapid depreciation, until the credit of the bills sunk so low as not to be current at any price. Various statutes were passed to force their circulation, and sustain their value; but they proved ineffectual. For a time, creditors were compelled to receive these bills under the penalty of forfeiting their debt; losing the interest; being denounced as enemies to the country, or some other penalty. These laws destroyed all just relations between creditor and debtor; and so debased a currency produced the most serious evils in almost all the relations of society. Nothing but the ardor of the most elevated patriotism could overcome the difficulties and embarrassments growing out of this state of things. It will be found somewhat difficult to give a satisfactory definition of a bill of credit. In what sense it was used in the Constitution, is the object of inquiry. Different nations of Europe have emitted, on various emergencies, three descriptions of paper money: 1. Notes, stamped with a certain value, which contained no promise of payment, but were to pass as money. 2. Notes, receivable in payment of public dues, with or without interest. 3. Notes, which the Government promised to pay at a future period specified, with or without interest, and which were made receivable in payment of taxes, and all debts to the public.

Bills of the last class were issued during the revolution; and in some of the colonies they had been emitted long before that time. In 1690 bills of credit were for the first time issued, as a substitute for money, in the colony of Massachusetts Bay, as stated in Hutchinson's history. In 1716 a large emission was made and lent to the inhabitants, to be paid at a certain period; and in the meantime to pass as money. For forty years, the historian says, the currency was in much the same state as if a hundred thousand pounds sterling had been stamped on pieces of leather or paper of various denominations, and declared to be the money of the Government, without any other sanction than this, that when there should be taxes to pay, the treasury would receive this sort of money; and that every creditor should be obliged to receive it from his debtor.

The bills issued during the revolution were denominated bills of credit. In 1780 the United States guarantied the payment of bills emitted by the States.

They all contained a promise of payment at a future day; and where they were not made a legal tender, creditois were often compelled to receive them in payment of debts, or subject themselves to great inconveniences and peril.

The character of these bills, and the evils which resulted from their circulation, give the true definition of a bill of credit, within the meaning of the Constitution; and of the mischiefs against which the Constitution provides.

The following is the form of the bills emitted in 1780, under the guarantee of Congress. The possessor of this bill shall be paid. -Spanish milled dollars by the 31st day of December, 1786, with interest, in like money, at the rate of five per cent per annum, by the State of- - according to an act,' &c.

Bills of credit were denominated current money; and were often referred to in the proceedings of Congress by that title, in contradistinction to loan office certificates. It is reasonable to suppose that in using the term 'bills of credit in the Constitution, such bills were meant as were known at the time by that denomination. If the term be susceptible of a broader signification, it would not be safe so to construe it; as it would extend the provision beyond the evil intended to be prevented, and instead of operating as a salutary restraint, might be productive of serious mischief. The words of the Constitution must always be construed according to their plain import, looking at their connexion and the object in view. Under this rule of construction, I have come to the conclusion, that to constitute a bill of credit, within the meaning of the Constitution, it must be issued by a State, and its circulation as money enforced by statutory provisions. It must contain a promise of payment by the State generally, when no fund has been appropriated to enable the holder to convert it into money. It must be circulated on the credit of the State; not that it will be paid on presentation, but that the State, at some future period, on a time fixed, or resting in its own discretion, will provide for the payment.

If a more extended definition than this were given to the term, it would produce the most serious embarrassments to the fiscal operations of a State. Every State in the transactions of its moneyed concerns, has one department to investigate and pass accounts, and another to pay them. Where a warrant is issued for the amount due to a claimant, which

is to be paid on presentation to the treasurer, can it be denominated a bill of credit? And may not this warrant be negotiated, and pass in ordinary transactions, as money? This is very common in some of the States; and yet it has not been supposed to be an infraction of the Constitution.

Audited bills are often found in circulation; in which the State promises to pay a certain sum, at some future day specified. If these are inhibited by the Constitution, can a State make loans of money? Can there be any difference between borrowing money from a creditor, and any other person who does not stand in that relation? The amount cannot alter the principle. If a State may borrow one hundred thousand dollars, she may borrow a less sum; and if an obligation to pay with or without interest may be given in the one case, it may in

the other.

Where money is borrowed by a State, it issues script which contains a promise to pay, according to the terms of the contract. If the lender, for his own convenience, prefers this script in small denominations, may not the State accommodate him? This may be made a condition of the loan. If a State shall think proper to borrow money of its own citizens, in sums of five, ten, or twenty dollars, may it not do so? If it be unable to meet the claims of its creditore, shall it be prohibited from acknowledging the claims, and promising payment with interest at a future day? The principles of justice and sound policy alike require this; and unless the right of the State to do so be clearly inhibited, it must be admitted.

In the adjustment of claims against a county, orders are issued on the county treasury; and it is common for these to circulate, by delivery or assignment, as bank notes or bills of exchange.

May a State do, indirectly, that which the Constitution prohibits it from doing directly? If it cannot issue a bill or note, which may be put into circulation as a substitute for money, can it, by an act of incorporation, authorize a company to issue bank bills on the capital of the State? It will thus be seen, that if an extended construction be given to the term bills of credit,' as used in the Constitution; it may be made to embrace almost every description of paper issued by a State.

The words of the Constitution are, that 'no State shall enter into any treaty, alliance, or confederation; grant letters of

marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts; or grant any title of nobility.'

Under the statute of Missouri, certificates in the following form were issued: 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 dollars, with interest for the same, at the rate of two per centum per annum, from this date, the day of

182.

It appears by the third section of the act, that two hundred thousand dollars were authorized to be issued, of the above certificates, each not exceeding ten dollars, nor less than fifty cents. By the thirteenth section, these certificates were made receivable at the State treasury by tax gatherers and other public officers, in payment of taxes or mo neys due to the State, or any county or town therein; and they were made receivable by all officers in payment of salaries and fees of office.

Under the fifteenth section, commissioners were authorized to loan these certificates to the citizens in the State; apportioning the amount among the several counties according to the population, on mortgages or personal security. The act provides the means by which these certificates shall be paid, and the fact is admitted that at this time they are all redeemed by the State.

It

The design, in issuing these certificates, seems to have been to furnish the citizens of Missouri with the means of paying to the State the taxes which it imposed, and other debts due to it. was in effect giving a credit to the debtors of the State, provided they would give good, real or personal security. Had the arrangement been confined to those who owed the State; and had certificates been required of them, promising to pay the amount, with interest; no objection could have been urged to the legality of the transaction. even if the State, in the discharge of its debts, had paid such certificates, the act would not have been illegal.

And

The State of Missouri adopted no measures to force the circulation of the above certificates. No creditor was under any obligation to receive them. By refusing them, his debt. was not postponed, nor the interest upon it suspend