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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." Craig v. State, 4 Pet. 410; Payaud v. State, 13 Miss. 491.

A loan certificate issued on the faith of the State, and made receivable for taxes and debts due to the State, and for the salaries of State officers, is a bill of credit. Craig v. State, 4 Pet. 410; Byrne v. State, 8 Pet. 40.


A certificate of indebtedness which, by law, is receivable in payment of taxes, is not a bill of credit. State v. Cardozo, 5 Rich. (N. S.) 297.


A treasury note issued by a State to an individual as evidence of a loan, and not intended as a circulating medium, is not a bill of credit. Green v. Sizer, 40 Miss. 530.

An auditor's warrant, issued according to law for the payment of a demand against the State, is not a bill of credit. Payaud v. State, 13 Miss. 491.

States and municipal corporations may borrow money and give proper securities therefor, and such securities are not bills of credit. McCoy v. Washington Co. 3 Wall. Jr. 381 ; S. C. 3 Phila. 290.

The State may authorize a municipal corporation to issue certificates of indebtedness, and make them receivable in payment of public taxes. Mayor v. State, 15 Md. 376.

A State may authorize a municipal corporation to issue bills of credit. Smith v. New Orleans, 23 La. Ann. 5.

A municipal corporation may issue treasury notes, make them receivable for all debts due to it, and pledge its real estate for their redemption. Smith v. New Orleans, 23 La..Ann. 5.

A State government organized by a force in rebellion against the United States, can not issue bills of credit. McCracken v. Poole, 19 La

Ann. 359.

Confederate notes were not bills of credit, for they were not issued by virtue of the sovereignty of a State, nor rest on the faith of a State for their currency. Bailey v. Milner, 35 Geo. 330.

A bill of credit is not a good consideration for a contract. Craig v. State, 4 Pet. 410; Bank v. Clark, 4 Mo. 59; Linn v. State Bank, 5 III. 87.

Legal Tender. (c) If one person owes to another a certain sum of money, this is a debt. It is the duty of the debtor to produce to the creditor that sum of money,



and offer to pay it to him; this is a tender. If the debt so tendered is not received by the creditor, the debtor is thereby discharged from the duty of tendering it again, until it shall have been legally demanded by the creditor. A tender may therefore, in general terms, be defined to be an act on the part of the debtor which affords some exemption to him, and works a correspondent inconvenience to the creditor. The Constitution therefore prohibits the States from passing laws, the effect of which will be to induce the creditor to receive something else than gold and silver coin in payment of the debt due him, in order to avoid an inconvenience that would result on his failure to do so. Baily v. Gentry, i Mo. 164.

The clause is not enabling, nor does it oblige the States to pass tender laws. Van Husan v. Ka se, 13 Mich. 303.

A State has no power over the currency further than the right to establish banks, to regulate or prohibit the circulation within the State of foreign notes, and determine in what the public dues shall be paid. Woodruff v. Trapnall, 10 How. 190; S. C. 8 Ark. 236.

A statute which provides for a stay of execution for a certain period, unless the creditor will accept property at two-thirds of its appraised value, is unconstitutional. Baily v. Gentry, I Mo. 164.

If the charter of a bank attempts to make the notes of the bank a legal tender, this provision will be unconstitutional, but will not in any degree affect the constitutionality of the bank. Briscoe v. Bank, 11 Pet. 257; S. C. 7 J. J. Marsh, 349.

A statute requiring county scrip to be received for taxes due to the county is unconstitutional. Gaines v. Rives, 8 Ark. 220.

A statute requiring a bank to receive its own notes in payment of the note of another bank presented for payment by it is void. Bank v. Bank of Cape Fear, 13 Ired. 75.

A statute which provides for a stay of execution for a certain period, unless the creditor will accept the paper of a State bank in payment, is unconstitutional. Townsend v. Townsend, Peck. 1 ; Briscoe v. Bank, 11 Pet. 257 ; S. C. 7 J. J. Marsh, 349.

A statute making bank notes a legal tender is unconstitutional. Lowry V: M'Ghee, 8 Yerg. 242; Briscoe v. Bank, 11 Pet. 257 ; S. C. 7 J. J. Marsh, 349.

A State law authorizing the tender of scrip of a corporation in payment for damages assessed in favor of an individual whose property is taken for its benefit, is void. State v. Beackmo, 8 Blackf. 246.

The Legislature may from time to time prescribe in what currency debts due to a public corporation shall be paid, and may then make the notes of a State bank a legal tender therefor. Bush v. Shipman, 5 III. 186.


(d) A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment is less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. Cummings v. State, 4 Wall. 277 ; s. C. 36 Mo. 263.

All men have certain inalienable rights, among these are life, liberty, and the pursuit of happiness. In the pursuit of happiness all avocations, all honors, all positions are alike open to every one; and in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment. Cummings v. State, 4 Wall. 277 ; s. C. 36 Mo. 263.

What can not be done directly, can not be done indirectly. The Constitution deals with substance, not shadows. Its inhibition is leveled at the thing, not the name. It intends that the rights of the citizen shall be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. Cummings v. State, 4 Wall. 277 ; S. C. 36 Mo. 263.

A bill of attainder may inflict punishment absolutely, or may inflict it conditionally. Cummings v. State, 4 Wall. 277; S. C. 36 Mo. 263.

Whether a statute excluding persons from pursuing certain vocations is a bill of attainder, must depend wholly upon what was the direct scope, object, and real intention of the act. If it were simply a measure of political wisdom, for the purposes of good government, it is a matter within the sovereign power, and valid beyond the reach of judicial condemnation. To bring it within the definition of a bill of attainder, it is absolutely necessary that it should be such by the very scope, operation, and intention of it. Murphy & Glover Cases, 41 Mo. 339.

A State law which deprives a party of the privilege of pursuing a certain avocation, unless he will take an expurgatory oath that he has not been guilty of a certain offense prior thereto, is invalid. Murphy & Glover Cases, 41 Mo. 339; State v. Heighland, 41 Mo. 388; Cummings v. State, 4 Wall. 277; S. C. 36 Mo. 263; contra, State v. Garesche, 36 Mo. 256.

A statute which deprives a party of the privilege of enforcing a contract, on account of an act previously done, is a bill of attainder. McNealy v. Gregory, 13 Fla. 417.

A statute of indemnity for acts done by virtue of military authority in times of civil war, is not a bill of attainder. Drehman v. Stifle, 41 Mo. 184; S. C. 8 Wall. 595 ; Hess v. Johnson, 3 W. Va. 645; Smith v. Owen, 42 Mo. 508; State v. Gatzweiller, 49 Mo. 18; Clark v. Dick, i Dillon, 8.


The right of suffrage being the creature of organic law, may be modified or withdrawn by the sovereign authority which conferred it, without inflicting any punishment. A State may therefore require that a party shall take an expurgatory oath that he has not done a certain act before he can be allowed to vote. Anderson v. Baker, 23 Md. 531; Randolph v. Good, 3 W. Va. 551; Blair v. Ridgley, 41 Mo. 63; State v. Neal, 42 Mo. 119; contra, Green v. Shumway, 39 N. Y. 418.

A statute depriving a party of a right to a rehearing of an attachment suit, unless he will take an oath that he has not theretofore done certain acts, is a bill of attainder. Pierce v. Carskadon, 16 Wall. 234; Kyle v. Jenkins, 6 W. Va. 371; Ross v. Jenkins, 7 W. Va. 284; Lynch v. Hoffman, 7 W. Va. 553; Lynch v. Hoffman, 7 W. Va. 578.



Ex Post Facto Laws. (e) The prohibition that “no State shall pass any ex post facto law,” necessarily requires some explanation, for naked and without explanation it is unintelligible, and means nothing. Literally it is only that a law shall not be passed concerning, and after the fact or thing done or action committed. The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this, that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light is an additional bulwark in favor of the personal security of the subject to protect his person from punishment by legislative acts having a retrospective operation. Calder v. Bull, 3 Dall. 386 ; S. C. 2 Root, 350.

The fact contemplated by the prohibition, and not to be affected by a subsequent law, is some fact to be done by citizen or subject. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350.

The words ex post facto do mean “by matter of after fact, by something after the fact.” But there is a manifest distinction between the case where one fact relates to and affects another fact, as where an after fact, hy operation of law, makes a former fact either lawful or unlawful, and the case where a law made after a fact done is to operate on and to affect such fact.

In the first case both the acts are done by private persons. In the second case the first act is done by a private person, and the second is done by the legislature to affect the first act. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350.

This provision was not inserted to secure the citizen in his private rights of either property or contracts. The prohibition not to make anything but gold and silver coin a tender in payment of debts, and not to pass





any law impairing the obligation of contracts, were inserted to secure private rights, but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment in consequence of such law. Calder v. Bull, 3 Dall. 386; s. C. 2 Root, 350.

The true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350; Bridgeport v. Hubbell, 5 Conn. 237; Stoddart v. Smith, 5 Binn. 355; Locke v. Dane, 9 Mass. 360 ; Society v. Wheeler, 2 Gallis. 105; Fisher v. Cockerill, 5 Mon. 129; Dash v. Van Kleeck, 7 Johns. 477 ; Davis v. Ballard, 1 J. J. Marsh. 563; Suydam v. Receivers, 3 N. J. Eq. 114; Byrne v. Stewart, 3-Dessau.

White v. Wayne, T. U. P. Charlt. 94; Forsyth v. Marbury, R. M. Charlt. 324; Andrews v. Russell, 7 Blackf. 474; Blackman v. Gordon, 2 Rich. Eq. 43; S. C. i Rich. Eq. 61 ; Sutherland v. De Leon, i Tex. 250 ; State v. Squires, 26 Iowa, 340; Caperton v. Martin, 4 W. Va. 138 ; Baugher v. Nelson, 9 Gill, 299; Coles v. Madison, Breese, 115; Carpenter v. Comm. 17 How. 456; Albee v. May, 2 Paine, 74; State v. Kline, 23 Ark. 587; Aldridge v. Tuscumbia R. R. Co. 2 Stew. & Port. 199; Locke v. New Orleans, 4 Wall. 172; Weister v. Hade, 52 Penn. 474; Ex parte Perkins, 2 Cal. 424 ; Lord v. Chadwick, 42 Me. 429; Butler v. Toledo, 5 Ohio St. 225; Stokes v. Rodman, 5 R. I. 405; Powers v. Dougherty Co. 23 Geo. 65; New Orleans v. Cordeviolle, 13 La. Ann. 268 ; Municipality v. Wheeler, 10 La Ann. 745.

The words ex post facto must be taken in their technical, which is also their common and general acceptation, and are not to be understood in their literal sense. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350.

The provision of the Constitution can not be evaded by the form in which the power of the State is exerted. Cummings v. State, 4 Wall. 277 ; S. C. 36 Mo. 263.

The laws which are ex post facto within the words and intent of the prohibition are: ist. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; 2d. Every law that aggravates a crime, or makes it greater than it was when committed ; 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. Calder v. Bull, 3 Dall. 386; S. C. 2 Root, 350; Walston v. Comm. 16 B. Mon. 15; State v. Bond, 4 Jones (N. C.) 9.

The words ex post facto relate to crimes, and not to criminal proceed

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