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[Briscoe et al. v. The Commonwealth Bank of Kentucky.] known only in local history, laws or usages, or infuse into the instrument local definitions, the expressions of historians, or the phraseology peculiar to the habits, institutions, or legislation of the several states. Speaking in language intended to be “uniform throughout the United States,” the terms used were such as had been long defined, well understood in polity, legislation, and jurisprudence, and capable of being referred to some authoritative standard meaning; otherwise, the constitution would be open to such a construction of its terms as might be found in any history of a colony, a state, or their laws, however contradictory the mass might be in the aggregate. If we overlook the language of acts and instruments which express the sense in which it is understood by all the states, and seek for the true exposition of the constitution in those which speak only for one state, we have the highest assurance in the course and range of the argument in this case, that certainty cannot be found in the almost infinite variety of laws which had been passed by the states in relation to the emission of paper money. Nor is there more certainty in referring to the opinions of statesmen and jurists, in debates in conventions, or legislative bodies, to political writers, or commentators on the constitution, among all of whom there is a most irreconcilable contradiction and discrepancy of views, on every debateable word and clause in the constitution, the result of which has been strongly exemplified in the argument of the cases at this term, depending on its true interpretation. Whether the remark made in the senate of the United States, by a profound and eminent jurist, in a debate on a most solemn constitutional question, is particularly applicable to the mass of what has been offered to the Court as authority in this case, or not, yet its general practical truth must be admitted.
“ If we were to receive the constitution as a text, and then to lay down in its margin the contradictory commentaries which have been made, and which may be made, the whole page would be a polyglot, indeed. It would speak in as many tongues as the builders of Babel, and in dialects as much confused, and mutually as unintelligible.”
Fully convinced that the constitution is best expounded by itself, with a reference only to those sources from which its words and terms have been adopted, I have always found certainty, and felt safety in adhering to it as the text of standard authority to guide my reasoning to a correct judgment. In expounding it by opinion, or on the authority of names, there is, in my opinion, great danger of error; for, when it is found that from the time of its proposition to the people, to the present, the wisest, and best men in the nation, have been, and yet are, placed foot to foot on all doubtful, and many plain propositions in relation to its construction, it is as difficult as it would be invidious, to select as a consulting oracle, any man, or class of statesmen or jurists, in preference to another.
On the question involved in this case, of what are bills of credit, my judgment is conclusively formed on the authority herein referred
[Briscoe et al. v. The Commonwealth Bank of Kentucky.] to; if it is not conclusive, I have neither found, or have been directed to that which is paramount, or, in my judgment, at all coordinate, or to be compared with it. Resting on this authority, it was my deliberate opinion, that the certificates issued by a law of Missouri, pledging the faith of the state for their redemption, were bills of credit, prohibited by the constitution. On the same authority, and as the result of subsequent researches, it is now my most settled conviction, that the notes of the Commonwealth Bank of Kentucky, are not bills of credit emitted by the state of Kentucky, inasmuch as the state has pledged neither its faith, or credit, for their payment. And the notes not being payable at a future day, or issued on any credit as to time, either on their face, or by the law under which they were issued, but directed to be paid on demand, in gold or silver, they were not emitted to obtain a loan to the state, or to meet its expenditures, and cannot be deemed its bills of credit. On a careful consideration of the mischiefs against the recurrence of which the constitution interposed this prohibition, of its language, the bearing of the three phrases on each other, their evident spirit, and the meaning deducible therefrom, I cannot abandon my first impression, that one requisite of a bill of credit is, that it be made a tender in payment of debts.
The crying evils which arose from the issue of paper money by the states, cannot be so well described as they are in the language of the constitution. The emission of bills of credit by the states, making them a tender in payment of debts, impaired and violated the obligation of contracts. The remedy is an appropriate one, reaching both the cause and effect, by three distinct prohibitions; no state shall emit bills of credit, make any thing a tender but gold and silver, or pass any law impairing the obligation of contracts. Thus the remedy covers the whole mischief, and goes beyond it if applied literally to its full extent; the mere emission of bills of credit was no evil; if no law coerced their circulation or reception by individuals, they are as harmless as certificates of stock, emitted on a voluntary loan to the state, which are admitted not to be the prohibited bills of credit. So long as they were not made a tender, they could produce no evils not common to all paper, whether of a state, a corporation, or individual, which by common consent, passes from hand to hand in the ordinary transactions of life. To prevent the circulation of such a medium, it was not necessary to call into action the high power of the constitution; the evil would cure itself; when the paper ceased to pass by consent, it would pay no debt, nor lead to the violation of any contract. The prohibition could not have been intended to prevent the people from taking as money, what would answer all the purposes of money in the interchanges of society, or-to deprive them of the exercise of their free will; on the contrary, it was made to prevent the coercion of their free will by a tender law, and leave them free to enforce the obligation of their
[Briscoe et al. v. The Commonwealth Bank of Kentucky.] contracts for the payment of money, and the enjoyment of their property.
In the construction of all laws, we look to the old law, the mischief and the remedy, and so expound it as to suppress the mischief, and advance the remedy; no just rule of interpretation requires a court to go further, by applying the remedy to a case not within the mischief, unless the words of the law are too imperative to admit of construction. I know no class of cases to which the rule is more appropriate, than those embraced within those prohibitions of the constitution on the exercise of powers reserved by the states, over subjects on which congress have no delegated power; there can be no collision between the laws of a state and the laws of the Union, as there would be where a state would legislate on those subjects that had been confided to congress or any department of the federal government. Taking the first class of cases in the tenth section, relating to treaties, letters of marque and reprisal, and coining money, which are subjects over which the constitution grants express powers as an example, it is evident, that to make the prohibition effectual to the object in granting the powers, it must be total, so as to exclude the exercise of any power by a state over the subject matter. From the nature of these subjects, there can be no concurrent power in the two governments; hence we find that the two first were, even by the article 6, of confederation, expressly prohibited to the states, without the consent of the United States. The same reasons apply to the third, because the express power in congress to coin money, regulate the value thereof, and of foreign coin, coupled with the prohibition to a state to coin money, is a decisive expression of the intention, that it shall not exercise the power, as in the case of a treaty, or a letter of marque and reprisal. The evils to be guarded against had not existed under the confederation; the states separately had not made treaties, granted letters of marque or reprisal, or coined money, in violation of those articles; the evils were wholly prospective, but were to be apprehended if any doubt whatever could be raised on the terms of grant of those powers. Hence the prohibition.
Touching the third class of cases, bills of attainder, ex post facto laws, and titles of nobility, they were not subjects of any delegated powers to congress; but as they were opposed to the whole spirit of the people, and the constitution, it annulled all power, state and federal, to do these things; and the prohibition is, in its nature and object, absolute and illimitable.
But the second class of prohibited cases, emitting bills of credit, tender laws, and those impairing the obligation of contracts, are widely different; the evils had existed, did exist, and must recur, if not prevented.
Congress could not legislate on these subjects, much less control the states, on whom the powers of parliament, in all their transcendency, as well as the prerogative of the crown, devolved by the revo
[Briscoe et al. v. The Commonwealth Bank of Kentucky.] lution; 6 Wh. 651; 8 Wh. 584. Each state had the power of emitting bills of credit, of passing tender laws, 4 Pet. 435, and exercised both, by annulling contracts and grants, the right to do which could not be contested by any authority; 4 Wh. 643, 651. These were the acts which called aloud for the remedy given by the prohibitions, to prevent their recurrence, which would have been certain if it had not been made.
This Court has declared the intention of the constitution on the subject of contracts. “ It was intended to correct the mischiefs of state laws, which had weakened the confidence between man and man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements; to guard against a power which had been extensively abused, and to restrain the legislature in future from violating the rights of property. It protected contracts respecting property, under which some person could claim a right to something beneficial to himself; and since the clause must, in construction, receive some limitation, it ought to be confined to the mischiefs it was intended to remedy. Not to authorize a vexatious interference with the internal concerns or civil institutions of a state; to embarrass its legislation in the regulation of internal government, or to render immutable those institutions for these purposes, which ought to vary with varying circumstances. The term contract must be understood in a more limited sense, so as not to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice;" 4 Wh. 428, 429; Dart. College case.
“ The principle was the inviolability of contracts. The plain declaration that no state shall pass any law impairing the obligation of contracts, includes all laws which infringe the principle the convention intended to hold sacred, and no further. It does not extend to the remedy to enforce the obligation of a contract; the distinction between them exists in the nature of things, so that without impairing the obligation, the remedy may be modified as the state may direct;" 4 Wh. 200; Sturgess v. Crowninshield.
It is also a principle declared by this Court, that the prohibition does not extend to the passage of a state law, which does not affect contracts existing when the law was enacted, and which operates only on the obligation of posterior contracts; 12 Wh. 369; Ogden v. Saunders; and no exposition of the constitution is better settled, or commands more universal assent, than that the prohibition does not extend to the passage of retrospective, unjust, oppressive laws, or those which divest rights, antecedently vested, if they do not directly impair the obligation of a contract; 2 Pet. 411, 13; 3 Pet. 289; 8 Pet. 110; and that “ The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security where there is no express contract, against unjust and exclusive taxation, as well as against unwise legislation generally;" 4 Pet. 563. Let these principles of constitutional law be applied to the con
[Briscoe et al. v. The Commonwealth Bank of Kentucky.] struction of the clause against emitting bills of credit, as they have been applied to the clause concerning the obligation of contracts, the conclusion seems to me inevitable. That the same construction, which imposes a limitation to the corrective remedy against the future violation of the sanctity of contracts, which it was the great object of the prohibition to protect, should be extended with at least as much liberality, to limit the operation of that clause of the same article, which prohibits an evil which by no possibility could impair the obligation of a contract, without a tender law. The mischiefs of a mere emission of bills of credit, are trivial in their consequences, compared with the effect of tender laws; their combined effect is to violate a contract: surely then the restriction on a state, ought not to be construed more rigidly against an act, which cannot of itself produce the mischief intended to be remedied, than a law which wholly annuls a contract. If each clause is taken according to an universal rule, that laws should be construed subjectam materiam, the lesser evil requires the more gentle corrective; but in assigning to the emission of bills of credit, without their being made a tender, a more restrictive meaning than to the direct violation of a contract, we act on the inverse rule. The protection is lessened in the same proportion as the danger is increased; the greater the mischief the milder and less inefficient is the remedy: reason and established principles alike require, that a prohibition should be limited, as far as can be done, without producing the mischief intended to be remedied, and expanded so far as is necessary to correct it. The construction must be according to the subject matter of the law, strict or liberal as the nature of the case requires, and the object to be effected will be defeated or accomplished, ut res magis valeat quam pereat; that which will effectuate all the objects of the prohibition cannot be too narrow, that which goes beyond the express word, or necessary implication, to effect an object not within the mischief, must be too broad.
On the same rule which confines the prohibition as to contracts, to state laws passed affecting existing contracts, and excluding from the protection of the constitution, all posterior contracts; a law making bank notes a legal tender in payment of debts contracted after the passage of the law, would not be within the prohibition. On the same principle by which an unjust, oppressive, retrospective law, or one which divests vested rights, is held not to impair the obligation of a contract per se, it must be held that a mere emission of bills of credit is not within the mischiefs intended to be corrected. There is no more danger in the exercise of this power, at the discretion of the legislature, than in these unrestrained powers, to modify the remedy to enforce the obligation of a contract, which this Court hold not to be affected by the prohibition. There is in the nature of things, the same distinction between bills emitted which are not made a tender, and those which are a tender, as between the remedy and the obligation of a contract; nay the distinction is more marked.