The

money. The position was first broadly taken that any means and methods which conduce to the end permitted by the organic law, are themselves legitimate; that Congress is the sole judge as to such means; that treasury notes are evidences of debt, and issuing them is in fact borrowing money; that the peculiar attribute annexed to them has a natural and direct tendency to enhance their value, to give them greater efficacy as a circulating medium, and is therefore a measure by which the borrowing of money is made easier. The case was held to be completely within the spirit of those decisions of the national court which declared the public securities of the government to be free from state taxation. One judge, Mr. Justice Marvin, also thought that the authority of Congress might be referred to its power to regulate commerce. objection that the statute operated directly to impair the obligation of contracts, was met by two answers: In the first place, the position was denied; in the second place, it was claimed that Congress was not forbidden to pass laws impairing the obligation of contracts. Two eminent judges dissented Mr. Justice Denio and Mr. Justice H. R. Selden. Their views were briefly as follows: After admitting that Congress might issue treasury notes designed for circulation as money, and might declare them to be legal tender in payment of debts to the government, they denied that any authority existed to force these notes upon private persons in payment of private debts. They urged that a particular measure of legislation, to be within the scope of Congressional powers, must have some direct relation to the end which the Constitution expressly authorizes; that it is not sufficient for such relation to be merely incidental or speculative. They claimed that the compulsive attribute annexed to these evidences of debt had no direct relation with the power to borrow or the act of borrowing. They chiefly relied, however, on the position that Congress has no capacity to interfere with the private contracts of individuals, any further and in any other manner than is directly authorized by the organic law; that the control over private agreements is a matter peculiarly within state jurisdiction.

§ 318. The several states, as bodies politic, have also the capacity and power to borrow money to any extent they may deem proper. The Constitution of the United States places no restrictions upon them in respect to the amount of their loans, although their own constitutions very generally restrain their legislatures by very positive and minute provisions. But the several states are limited by the organic law in respect to the means which they may adopt for borrowing money. They may not issue bills of credit, or make any thing but gold and silver coin a tender in payment of debts. The states are thus forbidden to emit their treasury notes or other evidences of indebtedness designed to circulate as money; nor may they affix the legal tender attribute to their obligations of any form, or to the obligations of banks or private individuals.

§ 319. The considerations which led to the adoption of these and other similar limitations upon the power of the several states, were very clearly and concisely stated by Mr. Justice Marvin, in The Metropolitan Bank v. Van Wyck, already referred to. He says: 1 "Considering the subject or object of these powers, and the circumstance that the people were members of other bodies-politic possessing certain powers in common with all independent states, which powers, if exercised by them, would embarass, derange, and might effectually destroy, the common system established by the federal government, it was absolutely necessary to impose certain prohibitions upon these other bodies-politic- the states. Among these prohibitions I have always regarded-so far as the peace of the states and the harmony of the system are concerned those which prohibit the states from making any thing but gold or silver coin a tender in payment of debts, and from passing any law impairing the obligation of contracts. [A fortiori, that which forbids the issuing of bills of credit.] If these powers had been suffered to remain with the states, it is quite obvious that difficulties between the people of different states would soon have arisen, endangering peace and harmony between them. Distrust would have existed, and

1 13 Smith's (27 N. Y.) R. 515.

there would have been an absence of that confidence necessary as a base for commercial and other intercourse between them. Independent nations may protect their merchants and citizens from the frauds of other nations consequent upon a debasement of the coin or a change of the measures of value in which debts are to be paid [or the depreciation of a national paper currency], or for a neglect or refusal to pay, by a resort to war. But the states have no right or power to make war upon each other, and they are prohibited from doing certain things which might be a just cause of war; and the people have entrusted the regulation of these subjects to a general common government."

§ 320. The meaning of the term "bills of credit," as used in the Constitution, has been settled by the judgments of the Supreme Court of the United States. Bills of credit plainly do not include all written contracts by which a state binds itself to pay money at a future day in consideration of services rendered, or loans made. Should this broad signification be given to the term, the states would practically be deprived of the ability to borrow money. Certificates of public stock, and public bonds, do not, therefore, fall under the prohibition. Bills of credit are written evidences of debt, payable at a future day, issued and intended to circulate as money. Nor is it necessary that the state should declare them to be money, or to be receivable in payment of debts, or to be a legal tender. It is sufficient that they be issued by the state, on its credit, and designed and made appropriate for circulation through the community. This definition and description was formally given by the Supreme Court of the United States in the case of Craig v. The State of Missouri,1 in which it was held that certain certificates issued by state officers, although not made a legal tender, or directed to pass as money or currency, were bills of credit, and that a statute of the state authorizing their issue was void.

§ 321. The question again arose in a subsequent case, Briscoe v. The Bank of the Commonwealth of Kentucky.2 The State of Kentucky had incorporated the bank, and declared it 14 Peters' R. 410.

2 11 Peters' R. 257.

to be "in behalf of the commonwealth." The president and directors were to be chosen by the legislature. The bank was authorized to issue notes which were to be receivable in payment of debts to the state. Other provisions of the statute disclosed the intimate connection between the bank and the state government, and the virtual control of the institution by the latter. The Supreme Court, notwithstanding a very vigorous dissent from Mr. Justice Story, held the notes of the bank not to be bills of credit, and the statute authorizing their issue not to conflict with the prohibition of the Constitution. The grounds of this judgment were, that the bank and the state were distinct; that the notes were issued by the former, upon its credit alone, and could only be enforced against it; that they were not issued by the state, and contained no pledge of the state's credit. The same view was taken in Darrington v. The Bank of Alabama,1 in reference to a bank of which the state was the only stockholder. It seems difficult to sustain the power of a state to permit any bank, whether a private or governmental institution, to issue circulating notes; for what the state cannot do directly, by its own immediate act, it should not be able to do indirectly, by means of an institution created by itself.

SECTION III.

THE POWER TO REGULATE COMMERCE.

§ 321. The next great power conferred upon Congress is that relating to commerce. The constitutional grant is in the following words: "Congress shall have power

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Upon this general grant a limitation is placed: "No preference shall be given, by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state, be obliged to enter, clear, or pay duties in another." Many of the provisions on the subject of taxation, both relating to the nation and to the states, which were cited and com

1 13 Howard's R. 12.

mented upon in Section I. of this chapter, have also an intimate connection with the subject of commerce. The laying and collection of duties on imports and exports, with all the necessary retinue of incidents, are plainly a part of the means appropriate to the regulation of commerce.

§ 322. One great cause of the utter prostration of business in the Confederation which preceded the present Union, was the fact that the Congress had no power whatever over the subject of commerce. Each state made such laws as it saw fit. Under the injurious and destructive influence of state pride, unseemly rivalries sprang up; one commonwealth competed with another; one attempted by more favorable navigation laws and reduced duties, to increase its own trade at the expense of its sister states. There was no unity, no bond of common feeling or interest.

It will also be remembered that the very first movement towards an amendment of the original Articles of Confederation, consisted in a proposal to give Congress more enlarged powers over the subject of commerce. When the convention finally assembled, it was universally conceded that this matter, at least, must be committed to the general government.

In considering the grant of power to regulate commerce, I shall arrange the various questions in order in two general divisions: first, The nature of the power; or whether it rests solely in the nation, or is shared also by the several states; and, secondly, The extent of the power; or what particular measures Congress may adopt in execution thereof.

First. The Nature of the Power.

§ 323. We are to inquire whether the power to regulate commerce is lodged exclusively in Congress, or whether it is held concurrently by the nation and the states. There are three theories of constitutional construction. (1.) One theory regards the capacity as vested, by the mere language of the Constitution, exclusively in Congress; and asserts that the states may enact no laws which are, in fact, regulations of commerce, whether or not the national legislature has passed