LECTURE XIX.

OF CONSTITUTIONAL RESTRICTIONS ON THE POWERS OF THE SEVERAL STATES.

WE proceed to consider the extent and effect of certain constitutional restrictions on the authority of the separate states. As the Constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual states, the powers conferred, and the limitations on power contained in that instrument, are applicable to the government of the United States, and the limitations do not apply to the state governments unless expressed in terms. Thus, for instance, the provision in the Constitution that private property shall not be taken for public use without just compensation, was intended solely as a limitation on the exercise of power by the government of the United States, and does not apply to the state governments. (a) The people of the respective states are left to create such restrictions on the exercise of the power of their particular governments as they may think proper; and restrictions by the Constitution of the United States, on the exercise of power by the individual states, in cases not consistent with the objects and policy of the powers vested in the Union, are expressly enumerated.

"No state," says the Constitution, (b) “shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but

(a) Barron v. The Mayor and City Council of Baltimore, 7 Peters, 243. See also In the matter of Smith, 10 Wendell, 449.

(b) Art. 1, sec. 10.

1 Twitchell v. The Commonwealth, 7 71; Fox v. Ohio, 5 How. 411. See The Wall. 321; Pervear v. The Common- Justices v. Murray, 9 Wall. 274, 278; wealth, 5 Wall. 475; Withers v. Buckley, ante, 326, n. 1. 20 How. 84; Smith v. Maryland, 18 How.

gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, nor lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

Most of these prohibitions would seem to speak for themselves, and not to stand in need of exposition. I shall confine myself to those cases in which the interpretation and extent of some of these restrictions have been made the subject of judicial investigation.

1. Of Bills of Credit. - Bills of credit, within the purview of the Constitution of the United States, prohibiting the emission of them, are declared to mean promissory notes 408 or bills issued by a state government, exclusively on the credit of the state, and intended to circulate through the community for its ordinary purposes as money redeemable at a future day, and for the payment of which the faith of the state is pledged. (a) The prohibition does not therefore apply to the

(a) Craig v. The State of Missouri, 4 Peters, 410. In the case of Brisco v. The Bank of Kentucky, 11 Peters, 257, the question what were bills of credit, of which the emission was prohibited to the states, was extensively discussed. They were defined to be paper issued by the authority of a state on the faith of the state, and designed to circulate as money; and under this definition it was adjudged that a bank of the State of Kentucky, established in the name and on behalf of the state, under the direction of a president and twelve directors chosen by the legislature, and the bank exclusively the property of the state, and with a capital of two millions, and with authority to issue notes payable to bearer on demand, and receive deposits and make loans; and the notes of which bank, by a subsequent act, were to be received on executions by plaintiff, and if refused, further proceedings to be delayed on the judgment for two years, was not within the prohibition in the Constitution of the United States against the emission of bills of credit. Mr. Justice Story dissented from this decision, and said that the late Chief Justice Marshall was of opinion with him, when the same case was before the court, and argued at a preceding term; and he further said that he would not distinguish the case in principle from that of Craig v. The State of Missouri. It appears to me, with great submission to the Supreme Court, that this decision essentially overrules the case of Craig, and greatly impairs the force and value of the constitutional prohibition. In the case of Linn v. State Bank of Illinois, 1 Scam. 87, decided by the Supreme Court of that state in 1833, it appeared that the State Bank of Illinois was owned by the state, and authorized to issue notes or bills in

notes of a state bank, drawn on the credit of a particular fund set apart for the purpose. (b) Through all our colonial history, paper money was much in use; and from the era of our independence down to the date of the Constitution, bills of credit, issued under the authority of the confederation Congress, or of the individual states, and intended for circulation from hand to hand, were universally denominated paper money; and it was to bar the governmental issues of such a delusive and pernicious substitute for cash, that the constitutional prohibition was introduced. The issuing of such bills by the State of Missouri, under the denomination of certificates, was adjudged to be unconstitutional, though they were not made generally a legal tender, but they were, nevertheless, made receivable in payment of taxes, and by all civil and military officers in discharge of salaries and fees of office. Instruments, however, issued by or on behalf of a state, binding it to pay money at a future day, for services actually received, or for money borrowed for present use, were declared not to be bills of credit, within the meaning of the Constitution. (c) 1

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small sums from twenty dollars to one dollar, drawing interest, and receivable in payment of debts due to the state; and that the legislature were pledged to redeem the bills, and creditors were stayed from collecting their debts for three years, unless they would receive the bills in payment. The court held that the analogy was so striking between that institution and the Missouri loan office, as to render the decision in Craig v. The State of Missouri in point, and binding on the states; and, consequently, it was adjudged that the act establishing the State Bank of Illinois was unconstitutional, and its notes void. And in the case of McFarland v. The State Bank, 4 Ark. 44, the Supreme Court of Arkansas held itself bound and concluded by the decision in Briscoe v. The Bank of Kentucky, though it was admitted to be inconsistent with the doctrine and decision in the prior case of Craig v. The State of Missouri. The court evidently regretted that the case of Craig had been overruled, as it contained the sound and true constitutional doctrine. The Bank of Arkansas stood on the same ground, and had the same essential qualities, and its notes were bills of credit within the decision of Craig, and not bills of credit within the decision of Briscoe, and the latter decision they held themselves bound to obey. (b) Billis ads. The State, 2 M'Cord, 12.

(c) Craig v. The State of Missouri, ubi supra. Mr. Justice Story, in his Commentaries on the Constitution, iii. p. 19, seems to be of opinion, that, independent of long-continued practice from the time of the adoption of the Constitution, the states would not, upon a sound construction of the Constitution, if the question was res

1 See further, as to what are not bills of credit, McCoy v. Washington County, 3 Wall. Jr. 381; Bailey v. Milner, 1 Abbott, U. S. 261; 35 Ga. 330; Darrington v.

Bank of Ala., 13 How. 12 (same principle as Briscoe v. Bank of Ky.); as to what are, City N. Bank v. Mahan, 2 La. Ann. 751.

2. Ex post Facto Laws. In Calder v. Bull, (d) the question on the meaning of an ex post facto law, within the prohibition of the Constitution, was extensively discussed.

The legislature of Connecticut had, by a resolution or law, set aside a decree of the court of probates, rejecting a will, and directed a new hearing before the court of probates, and the point was, whether that resolution was an ex post facto law prohibited by the Constitution of the United States.

It was held that the words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when

* done, criminal; or which aggravated a crime, and made * 409 it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. The Supreme Court concluded that the law or resolution of Connecticut was not within the letter or intention of the prohibition, and was, therefore, lawful. (a) Afterwards, in Fletcher v. Peck, (b) it was observed that an ex post facto law integra, be authorized to incorporate banks, with a power to circulate bank paper as currency, inasmuch as they are expressly prohibited from coining money. He cites the opinions of Mr. Webster, of the Senate of the United States, and of Mr. Dexter, formerly Secretary of War, on the same side. But the equal, if not the greater authority of Mr. Hamilton, the earliest Secretary of the Treasury, may be cited in support of a different opinion, and the contemporary sense and uniform practice of the nation are decisive on the question. Bank paper, like checks and negotiable notes, circulates entirely upon private credit, and is not a coercive circulation. It is at every person's option to receive or reject it. The Constitution evidently had in view bills of credit issued by law, in the name and on the credit of the state, and intended for circulation from hand to hand as money, and of which our history furnished so many pernicious examples. The words of the Constitution are, that no state shall emit bills of credit. The prohibition does not extend to bills emitted by individuals, singly or collectively, whether associated under a private agreement for banking purposes, as was the case with the Bank of New York prior to its earliest charter, in the winter of 1791, or acting under a charter of incorporation, so long as the state lends not its credit, or obligation, or coercion, to sustain the circulation. In the case of Briscoe v. The Bank of the Commonwealth of Kentucky, this question was put at rest, by the opinion of the court that there was no limitation in the Constitution on the power of the states to incorporate banks, and their notes were not intended to be inhibited, nor were considered as bills of credit. 11 Peters, 257, 345, 349. (d) 3 Dallas, 386.

(a) Strong v. The State, 1 Blackf. (Ind.) 193, s. p. (b) 6 Cranch, 138.

was one which rendered an act punishable in a manner in which it was not punishable when it was committed. This definition is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively.1y