of common circulation.1 It would be preposterous to suppose, that the constitution meant solemnly to prohibit an issue under one denomination, leaving the power complete to issue the same thing under another. It can never be seriously contended, that the constitution means to prohibit names, and not things; to deal with shadows, and to leave substances. What would be the consequence of such a construction? That a very important act, big with great and ruinous mischief, and on that account forbidden by words the most appropriate for its description, might yet be performed by the substitution of a name. That the constitution, even in one of its vital provisions, might be openly evaded by giving a new name to an old thing. Call the thing a bill of credit, and it is prohibited. Call the same thing a certificate, and it is constitutional." § 1359. But it has been contended recently, that a bill of credit, in the sense of the constitution, must be such a one, as is, by the law of the state, made a legal tender. But 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. And surely no one in such a case is at liberty to interpose a restriction, which the words neither require, nor justify. Such a construction is the less admissible, because there is in the same clause 1 Craig v. Slate of Missouri, 4 Peters's Sup. Ct. R. 432, 441, 442. 2 Id. 432, 433, 441, 442, 443. — An act of parliament was passed, (24 Geo. 2, ch. 53,) regulating and restraining the issues of paper money and bills of credit in the New-England colonies, in which the language used demonstrates, that bills of credit was a phrase constantly used and understood, as equivalent to paper money. The prohibitory clauses forbid the issue of " any paper bills, or bills of credit of any kind, or denomination whatsoever," &c., and constantly speak of " paper bills or bills of credit," as equivalents. See Deering v. Parker, 4 Dall. (July 1760,) p. xxiii. an express and substantive prohibition of the enactment of tender laws. If, therefore, the construction were admissible, the constitution would be chargeable with the folly of providing against the emission of bills of credit, which could not, in consequence of another prohibition, have any legal existence. The constitution considers the emission of bills of credit, and the enactment of tender laws, as distinct operations, independent of each other, which may be frequently 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 are 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.1 No principle of interpretation can justify such a course. § 1360. The history of paper money in the American colonies and states is often referred to for the purpose of showing, that one of its great mischiefs was its being made a legal tender in the discharge of debts; and hence the conclusion is attempted to be adduced, that the words of the constitution may be restrained to this particular intent. But, if it were true, that the evils of paper money resulted solely from its being made a tender, it would be wholly unjustifiable on this account to narrow down the words of the constitution, upon a mere conjecture of intent, not derivable from those words. A particular evil may have induced a legislature to enact a law; but no one would imagine, that its language, if general, ought to be confined to that single The leading motive for a constitutional provision may have been a particular mischief; but it may yet have been intended to cut down all others of a like na case. 1 Craig v. State of Missouri, 4 Peters's Sup. Ct. R. 433, 434. ture, leading more or less directly to the same general injury to the country. That the making of bills of credit a tender was the most pernicious of their characteristics, will not authorize us to convert a general prohibition into a particular one.1 § 1361. But the argument itself is not borne out by the facts. The history of our country does not prove, that it was an essential quality of bills of credit, that they should be a tender in payment of debts; or that this was the only mischief resulting from them. Bills of credit were often issued by the colonies, and by the several states afterwards, which were not made a legal tender; but were made current, and simply receivable in discharge of taxes and other dues to the public. None of the bills of credit, issued by congress during the whole period of the revolution, were made a legal tender; and indeed it is questionable, if that body possessed the constitutional authority to make them such. At all events they never did attempt it; but recommended, (as has been seen,) that the states should make them a tender. The act of parliament 1 Craig v. State of Missouri, 4 Peters's Sup. Ct. R. 433, 434. 2 The bills of credit issued by, Massachusetts in 1690 (the first ever issued in any colony) were in the following form: "No. —, 10s. This indented bill of ten shillings, due from the Massachusetts Colony to the possessor, shall be in value equal to money, and shall be accordingly accepted by the treasurer, and receivers subordinate to him, in all public payments, and for any stock at any time in the treasury, Boston, in NewEngland, Dec. the 10th, 1690. By order of the General Court: Peter Townsend, Adam Winthrop, Tim. Thornton, Committee." So, that it was not, in any sense, a tender, except in discharge of public debts. 3 Mass. Hist. Collections, (2d series,) p. 260, 261. The bills of credit of Connecticut, passed before the revolution, were of the same general character and operation. They were not made a tender in payment of private debts. The emission of them was begun in 1709, and continued, at least, for nearly a half century. The acts, authorizing the emission, generally contained a clause for raising a tax to redeem them. 3 Craig v. State of Missouri, 4 Peters's Sup. Ct. R. 434, 435, 436, 442, 443. of 24 Geo. 2, ch. 53, is equally strong on this point. It prohibited any of the New-England colonies from issuing any new paper bills, or "bills of credit," except upon the emergencies pointed out in the act; and required those colonies to call in, and redeem all the outstanding bills. It then proceeded to declare, that after September, 1751, no "paper currency or bills of credit," issued, or created in any of those colonies, should be a legal tender, with a proviso, that nothing therein contained should be construed to extend to make any of the bills, then subsisting, a legal tender. § 1362. Another suggestion has been made; that paper currency, which has a fund assigned for its redemption by the state, which authorizes its issue, does not constitutionally fall within the description of "bills of credit." The latter words (it is said) appropriately import bills drawn on credit merely, and not bottomed upon any real or substantial fund for their redemption; and there is a material, and well known distinction between a bill drawn upon a fund, and one drawn upon credit only. In confirmation of this reasoning, it has been said, that the emissions of paper money by the states, previous to the adoption of the constitution, were, properly speaking, bills of credit, not being bottomed upon any fund constituted for their redemption, but resting solely, for that purpose, upon the credit of the state issuing the same. But this argument has been deemed unsatisfactory in its own nature, and not sustained by historical facts. All bills issued by a state, whether special funds are assigned for the redemption of them or not, are in fact issued on the credit of the state. If these funds should from any cause fail, the bills would be still payable by the state. 1 Craig v. State of Missouri, 4 Peters's Sup. Ct. R. 447. If these funds should be applied to other purposes, (as they may be by the state,) or withdrawn from the reach of the creditor, the state is not less liable for their payment. No exclusive credit is given, in any such case, to the fund. If a bill or check is drawn on a fund by a private person, it is drawn also on his credit, and if the bill is refused payment out of the fund, the drawer is still personally responsible. Congress has, under the constitution, power to borrow money on the credit of the United States. But it would not be less borrowing on that credit, that funds should be pledged for the re-payment of the loan; such, for instance, as the revenue from duties, or the proceeds of the public lands. If these funds should fail, or be diverted, the lender would still trust to the credit of the government. But, in point of fact, the bills of credit, issued by the colonies and states, were sometimes with a direct or implied pledge of funds for their redemption. The constitution itself points out no distinction between bills of the one sort or the other. And the act of 24 Geo. 2d. ch. 53 requires, that when bills of credit are issued by the colonies in the emergencies therein stated, an ample and sufficient fund shall, by the acts authorizing the issue, be established for the discharge of the same within five years at the farthest. So, that there is positive evidence, that the phrase, "bills of credit," was understood in the colonies to apply to all paper money, whether funds were provided for the repayment or not.1 § 1363. This subject underwent an ample discussion in a late case. The state of Missouri, with a view to relieve the supposed necessities of the times, au VOL. III. 1 See 2 Hutch. Hist. 208, 381. 30 |