mind the idea of issuing paper intended to circulate through the community for its ordinary purposes as money; which paper is redeemable at a future day." "If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a State government for the purposes of common circulation." Bills of credit and legal tender laws were declared to be the objects of two separate and independent prohibitions.
The case, however, through which the Bank of the Commonwealth of Kentucky obtained national importance and effected the whole law of banking in this country was that of Briscoe vs. the Bank of the Commonwealth of Kentucky.[1] Briscoe and others gave a note in 1830 which they did not pay at maturity. In the State Circuit Court Briscoe pleaded "no consideration," on the ground that, the note was given for a loan of notes of the Bank of the Commonwealth, which were "bills of credit" within the prohibition of the Constitution and therefore of no value. The State Court found for the bank. The Supreme Court of the State had held, in 1822, that,—no consideration because bills of credit,—was not a good defense on a suit.[2] The State Court of Appeals affirmed the decision in Briscoe's case. The case was carried to the Supreme Court of the United States on a writ of error. Two of the seven judges were absent in 1834. Of the five who heard the argument in Briscoe's case, three thought that the notes of the Bank of the Commonwealth were bills of credit under the decision in Craig vs. Missouri; but there was not a majority of the whole Court who concurred in this opinion. The rule of the Court was not to pronounce a State law invalid for unconstitutionality unless a majority of the whole Court should concur; hence no decision was rendered.
The Circuit Court of Mercer County, Kentucky, decided, in 1834, under the decision in Craig vs. Missouri, that the notes of the Bank of the Commonwealth were bills of credit.[3]
Judge Johnson died in 1834. Duvall resigned in January, 1835. Wayne took his seat January 14th, 1835.[4] Hence there was one vacancy in 1835 and Briscoe's case went over. Marshall died July 6th, 1835. In 1836 there were only five Judges on the bench of the Court. Taney was confirmed March 15th, 1836, as Chief Justice, and P. P. Barbour[5] was confirmed the same day. This made the Court complete again. Five of the seven Judges were now Jackson's appointees.
Briscoe's case was decided in January, 1837. The decision was by McLean, who had dissented in Craig vs. Missouri. It was held that a bill of credit "is a paper issued by the sovereign power containing a pledge of its faith and designed to circulate as money." "The act incorporating the Bank of the Commonwealth was a constitutional exercise of power, by the State of Kentucky, and the notes issued by the bank are not bills of credit, within the meaning of the Constitution of the United States." It is said to
