several states, by which they agreed that they would, collectively, form one nation, for the purpose of conducting some domestic concerns, and all foreign relations. In the instrument forming that Union, is found an article which declares that every state shall abide by the determination of congress, on all questions which by that confederation shall be submitted to them;" 2 Story's Com. 546. "The people of the United States formed the constitution, acting through the state legislatures, in making the compact, to meet and discuss its provisions; but the terms used in its construction, show it to be a government, in which the people of all the states, collectively, are represented. We are one people in the choice of president and vice president. Here the states have no other agency than to direct the mode in which the votes shall be given. The candidates having the majority of all the votes, are chosen. The electors of a majority of states may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the states, are represented in the executive branch;" 2 Story's Com. 551. "The unity of our political character commenced in its very existence. Under the royal government, we had no separate character; our opposition to its oppressions began as united colonies. We were the United States under the confederation, and the name was perpetuated, and the Union rendered more perfect, by the federal constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defence. How, then, with all these proofs, that under all our changes of position, we had, for designated purposes, with defined powers, created national governments? how is it, that the most perfect of those several modes of union, should now be considered as a mere league, which may be dissolved at pleasure?" 2 Story's Com. 554. It is proper here to add an extract from the opinion of Chief Justice Jay, in the case referred to, at the end of sec. 211, 1 vol. Com. 199, part of which is given in sect. 216, p. 204, 5; as it will show the coincidence of views entertained and declared by him in 1793, and those of the learned commentator forty years afterwards. "Afterwards, in the hurry of the war, and in the warmth of mutual confidence, they (the people,) made a confederation of the states the basis of a general government. Experience disappointed the expectations they had formed from it; and the people, in their collective and national capacity, established the present constitution. It is remarkable, that in establishing it, the people exercised their own rights, and their own proper sovereignty; and, conscious of the plenitude of it, they declared, with becoming dignity, we, the people of the United States, do ordain and establish this 'constitution.' Here we see the people acting as sovereigns of the whole country: and, in the language of sovereignty, establishing a constitution, by which it was their will that the state governments should be bound, and to which the state constitutions should be made to conform. Every state constitution is a compact, made by and between the citizens of a state, to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States, to govern themselves as to general objects, in a certain manner. By this great compact, however, many prerogatives were transferred to the national government; such as those of making war and peace, contracting alliances, coining money," &c. &c. "If, then, it be true, that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each state in the people of each state, it may be useful," &c.; 2 Dall. 270, 271. The only difference of opinion between these two most learned jurists, is in the constitution being a compact; it is, however, only a difference about a name; they agree in the thing; the power which created, the nature and origin of the federal government, those of the states, and the thing created; a constitution, not a league. These extracts are made more at large than would be required on an ordinary occasion; in order to present a full view of the ground on which the doctrine of the unity of power, in the one people, of one nation, existing from the beginning of the revolution, is asserted; and that no supreme sovereign power was in the people of the several states, competent to ordain and establish the constitution, is maintained; so that there can be no misapprehension as to meaning or intention. It was intended to publish the preceding view, with the four opinions which follow, in an appendix to the eleventh volume of Mr. Peters' Reports, which contains the opinions of the Court, and the judges who dissented. But it was found that, by so doing, the publication of the Reports would be delayed beyond the time at which they would otherwise have been before the public. Unwilling to be the cause of such delay, I have adopted this mode of submitting my views and opinions to the profession. H. B. BRISCOE ET AL. V. THE COMMONWEALTH BANK OF KENTUCKY. It has so happened, that I am the only member of the Court, who composed one of the majority in the case of Craig v. Missouri, and now concurs with the majority in this case, in affirming the judgment of the court of appeals; in this respect my situation is peculiar, as well as in another particular. After an argument in the former case, two of the judges had died; of the remaining five, three were of opinion that the paper issued by the state of Missouri were bills of credit, and two of a contrary opinion; on the argument in 1830, there were two judges present who had not before sat in the cause, and on whose opinion the result depended. If they agreed with the minority, the judgment was of course confirmed; if they divided, it was reversed; so that the one who joined the three made the judgment of the Court: this was my case; agreeing in opinion with the three who were for reversing, I concurred in the judgment and general course of the opinion and reasoning of the Court, though my opinion was formed on grounds somewhat different. It was my intention to have assigned my reasons in a separate opinion, but as it was the first term of my sitting in the Court, the business was new and pressing, and want of time prevented it; but at my suggestion a clause was added to the opinion prepared by the chief justice, which would enable me afterwards to show the reasons of my judgment should a similar question occur. In this case, too, I fully concur in the judgment rendered, yet not in the course of reasoning or the authority on which the opinion of the Court is based; so that my position is as peculiar in this as it was in Craig v. Missouri; and in one respect is in marked contrast with that of the other three judges who sat in that case. The judge who was in the majority then, and now dissents, was and is of opinion, that the paper emitted in both cases came within the restriction of the constitution as bills of credit; two who then dissented and now are in the majority, were, and are of opinion that the papers in neither case are bills of credit, so that no imputation of inconsistency can rest upon them. With me it is [Briscoe et al. v. The Commonwealth Bank of Kentucky.] different; my judgment has led me to different results in the two cases, and therefore it cannot be deemed improper for me to explain the reasons why, though forming one of the majority in both cases, I stand in some measure alone. A judge who now dissents, may find reasons therefor in the opinion delivered in Craig v. Missouri; those who now concur, may rest on their dissenting opinions in that case; but the same course of reasoning and deduction which shows the consistency of others, may lead to a very contrary conclusion as to mine. These considerations must be my apology for the course now taken. In Craig v. Missouri, the subject of controversy, were certificates signed and issued by the auditor and treasurer pursuant to a law of that state, which were on their face receivable at the treasury for taxes and debts due the state, bearing interest at the rate of two per cent. per annum. One-tenth the amount of said certificates were directed to be withdrawn annually from circulation; they were made a legal tender for all salaries and fees of office, in payment for salt to the lessee of the public salt works at a price to be stipulated by law, and for all taxes due the state, or to any county, or town therein. They were to be loaned on personal security by joint and several bonds bearing interest; the proceeds of the salt springs, the interest accruing on the bonds, all estates purchased under the law, all debts due or to become due to the state, were pledged and constituted a fund for their redemption, and the faith of the state was also pledged for the same purpose. It seemed to a majority of the Court, to be impossible to disguise the character of this paper, or to change its nature or effect by substituting the word certificate on its face for the word bill; the change was only in name, the thing was the same. Connected with the law under which the paper was issued, it was a bill, note, or obligation, emitted by the state, with the avowed purpose of circulating as money for all the purposes referred to in the law; the funds and faith of the state were pledged for its payment with interest from its date, and it was made a legal tender in payment of certain debts to individuals, and of taxes to towns and counties. No member of the Court was more clearly of opinion, that these self-called certificates were bills of credit to all intents and purposes, and that that part of the constitution which declared, that no state should emit them, would be a dead letter if they were not held to be within it, than I was. On this subject, my opinion went to the full extent of that which was delivered by the chief justice, and has been fully confirmed by subsequent reflection. There was between the concurring judges and myself, no other difference of opinion, or in the reasons of our respective judgments, than in the definition of a bill of credit, which is thus given in the opinion, 4 Pet. 432: "To emit bills of credit conveys to the mind the idea of issuing paper, intended to circulate through the commu [Briscoe et al. v. The Commonwealth Bank of Kentucky.] nity, for its ordinary purposes, as money, which paper is redeemable at a future day. This is the sense in which the terms have been always understood. If the prohibition means any thing; if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government for the purpose of common circulation." To this broad definition I could not assent; in my opinion, no paper medium could be deemed a bill of credit emitted by a state, unless it contained on its face, or the law under which it was emitted gave a pledge of its faith or credit for its redemption; nor then, unless it was made a legal tender in the payment of some debts to individuals. Though the opinion is silent as to the pledge of the faith of the state, being a requisite to constitute a bill of credit, and negatives the necessity of the paper being made a legal tender; yet these matters entered into the character of the paper, and were a part of the case before the Court, as appears in the opinion, 4 Pet. 432, 3. The first sentence in the latter page, shows the ground on which my opinion turned; the paper was a tender, and the faith of the state was pledged. This last clause was added to the opinion at my request. "It also pledges the faith and funds of the state for their redemption." Thus there was a perfect union of opinion between the judges who composed the majority, on the whole case presented for judgment, as well in the result as the course of reasoning which led to it; the only variance was as to the requisites of a bill of credit. Three judges holding that "any paper medium emitted by a state government for the purpose of common circulation," filled the constitutional definition of a bill of credit, while one judge held that there were two additional requisites; that the emission should be on the credit of the state, and the paper declared a legal tender. But as the certificates or bills, taken in connection with the law directing their emission, contained all the requisites to constitute bills of credit, on the most limited construction which could be given to the constitution, there could be no other difference of opinion than in the reasons for judgment. Had the opinion and reasoning been applied to the whole case, to paper not only emitted by a state for common circulation, but emitted on its faith and credit expressly pledged, and made a tender, the reasons would have been in perfect accordance with the views of the majority and their judgment. But though this was requested by me, the opinion was confined to only a part of the case on the record, taking no notice, in the reasoning, of the pledge of the faith of the state in direct terms, or giving to it any declared effect in fixing the character of the paper. If this pledge had not appeared on the certificate or in the law, my opinion would have been for affirming the judgment of the state court; and as three judges held that even with this pledge, the certificates were not bills of credit, it is evident that the judgment of this Court depended on this part of the law. |