dissenting.
When this cause was formerly argued before this Court, a majority of the judges, who then heard it, were decidedly of opinion that the act of Kentucky establishing this bank, was unconstitutional and void; as amounting to.an authority to emit bills of credit, for and on behalf of the state, within the, prohibition of the constitution of the United States. In principle it was thought to.be decided by the case of Craig v. The State of Missouri, 4 Peters’ R. 410. Among that majority was the late Mr. Chief Justice Marshall; a name never to Be pronounced without reverence. The cause has been again argued, and precisely upon the same grounds as at the former argument. A *329majority of my brethren^ have now pronounced the act of Kentucky to be constitutional. I dissent from that opinion: and retaining the same opinion which I held at the first argument, in common with the Chief Justice, I shall now proceed to state the reasons on which fit is founded. I offer no apology for this apparent exception to the course which I have generally pursued, when l have had the misfortune to differ from my brethren, in maintaining silence; for in truth it is no exception at all, as upon constitutional questions I ever thought it my duty to give a public expression of my opinions, when they differed from that of the Court.
The first question náturally arising in the case is, what is the true interpretation of the clause of the constitution, that “ no state shall emit bills of credit.” In other words, ivbat is a bill of credit, in the sense of the constitution? After the decision of the case of Craig v. The State of Missouri, I had not supposed, that this was a matter which could be brought into contestation, at least unless the authority of that case was to.be overturned; and the Court were to be set adrift from its former moorings. The Chief Justice, in delivering the opinion of the Court upon that occasion, in answer to the very inquiry said; “To emit bills of credit, conveys to the 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. This is the sense in which it has been always understood.” Again: “The term has acquired an appropriate meaning; and bills, of credit signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society.” Again: “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 purposes of common circulation.” One should suppose that this language was sufficiently exact and definite to remove all possible doubt upon the point: and it has the more'weight, because it came frorq one, who was himself an actor in the very times when bills of credit constituted the currency of the whole country; and whose experience justified him in this exposition.
But, it seems, that this definition is not now deemed satisfactory, or to be adhered to; and a hew exposition is sought, which, in its predicaments, shall not comprehend the bills in question. The arguments of the learned counsel for the bank, on the present occasion have, as it appears to me, sought for a definition, which shall exclude *330any perils to their case; rather than a definition founded in the intention and language of the constitution.
It appears to me, that the true nature and objects of the prohibition, as wéll as its language, can properly be ascertained only by a reference to history; to the mischiefs existing, and which had existed when the constitution was formed; and to the meaning then attached to the phrase “ bills of credit,” by the people qf the United States.
If we look into the meaning of the phrase as it is found in the British laws, or in our own laws, as applicable to the concerns of private individuals, or private corporations, we shall find that there is no mystery about the matter; and that when bills of credit are spoken of, the words mean negotiable paper, intended to pass as currency, or as money, by delivery or indorsement. In this sense, all bank notes, or, as the more common phrase is, bank bills, are' bills of credit. They are the bills of the party issuing them, on his credit, and the credit of his funds; for the purposes of circulation as currency or money. Thus, for example, as we all know, bank notes payable to the bearer, (or when payable to order, indorsed in blank,) pass in the ordinary intercourse and business of life, as money; and circulate, and are treated as money. They are not, indeed, in a legal and exact sense, money; but, for common purposes, they possess the attributes, and perform the functions of money. Lord Mansfield, in Miller v. Rice, 1 Burr. 457, speaking on the subject of bank notes, observed, “that these notes are not like bills of exchange, mere securities, or documents for debts, and are not so esteemed; but are treated as money, in the ordinary course and transactions of credit and of business, by the general consent of mankind: and on payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes.” And, indeed, so. much are they treated as money, that they pass by a will which bequeaths the testator’s cash, or money, or property.
In confirmation of what has been already stated, it may be remarked, that in the charter of the Bank of England, in 5th and 6th William and Mary, ch. 20, sec. 28, an express provision is made, by which the bill or bills obligatory, and of credit, of the bank, are declared to be assignable and negotiable. Similar expressions are to be found in the many acts of the American States, incorporating banks; as has been abundantly shown in the citations at the bar.* *331The reason is obvious why they are called bills of credit; they are intended to pass as currency, or money; and they are issued on the credit of the bank, or pf other persons who are bound by them. Not but that there is a capital fund or stock for their redemption; for, in general, all banks have such a.fund: but that the credit is still given to the corporation, and not exclusively to any particular' fund. Indeed, in many cases, (as in Massachusetts) the .private fu,nds and credit of the corporators, are by law, to a limited extent, made responsible for the notes tif banks.
Such then being the true and ordinary meaning applied to bills of credit, issued by banks and other corporations, that they are negotiable paper, designed to pass as currency, and issued oh the credit of the corporation; there is no mystery in the. application of the same terms to the transactions of states. The nature of the thing is not changed; the object of the thing is not changed, whether the negotiable paper isissued by a corporation or by a state. Mutato nomine, de te fábula narratur. A bill of credit,then, issued by a state, is negotiable paper,designed to pass as currency, and to circulate as money. It is distinguishable from the evidences of debt issued by a state for money borrowed, or debts otherwise incurred; not merely in form, but in substance. The form of the instrument is wholly immaterial. It is the substance we are to look to; the questioa’is, whether it is issued, and is negotiable, and is designed to circulate as currency. If that is its intent, manifested either on the face of the bill, or on the face of the act, and it is in reality the paper issue of a state; it is within the prohibition of the constitution. If no such intent exists, then it is a constitutional exercise of power by the state. This is the test; the sure, and, in my judgment, the only sincere test, by which we can ascertain whether the paper be within or without the prohibition of the constitution. All other tests, which have hitherto been applied; and all other tests which can be applied, will be illusory, and mere exercises of human ingenuity, to vary the prohibition, and evade its force. Surely, it will not be pretended, that the constitution intended to prohibit names, and not things; to hold up the solemn mockery of warning with shadows, and suffering realities to escape its grasp? To suffer states, on their own credit, to issue floods of paper money as currency: and if they do not call them bills of credit, if they do not *332give them the very form and impress of a promise by the state, or in behalf of the state; in the very form, so current, and so disastrous in former times; then they are not within the prohibition. Let the impressive language of Mr. Chief Justice Marshall on this very point, in the case of Craig v. The State of Missouri: a voice now speaking from the dead: let it convey its own admonition, and answer to the argument. “ And can this (said he) make any real difference? Is the proposition to be maintained, that the constitution meant to prohibit names; and not things ? That a very important act, big with great and ruinous mischief; which is expressly forbidden by words most appropriate for its description; may be performed by the substitution of a name ? That the constitution, in one of its most important provisions, may be openly evaded; by giving a new name to an old thing? We cannot think so.”
But the argument need not be rested here. The question here is, not what is meant by bills of credit, in a mere theoretical sense; But I trust, that I shall abundantly show, that the definition which was given in the case of Craig v. The State of Missouri, and the definition which I maintain, is the true one; stripped of all mystery, and all extraneous ingredients is the true one; confirmed by the whole history of the country: and that the true meaning of bill of credit was just as well known and understood from the past and the passing events at the time of the adoption of the constitution, as the terms, habeas corpus, trial by jury, process of impeachment, bill of attainder, or any other phrase to be found in the technical vocabulary of the constitution. And I mean to insist, that the history of the colonies, before and during the revolution, and down to the very time of the adoption of the constitution; constitutes the highest' and most authentic evidence, to which we can resort, to interpret this clause of the instrument: and to disregard it, would be to blind ourselves to the practical mischiefs which it was meant to suppress; and to forget all the great purposes to which it was to be applied. I trust, that I shall be able further to show, from this very history, that any other definition of bills of credit than that given by the Supreme Court in the case of Craig v. The State of Missouri, is in opposition to the general tenor of that history; as well-as to the manifest intention of the framers of the constitution.
Before I proceed further, let me quote a single passage from the Federalist, No. 44; in which the writer, in terms of strong denunciation and indignation, exposes the ruinous effects of the paper money *333of the revolution, (universally in those days called by the name of bills of credit, for there was no attempt to disguise their character;) and then adds, “ in addition to these persuasive considerations it may be observed, that the same reasons, which show the necessity of denying to the states the power of regulating coin; prove with equal force, that they ought not to be at liberty to substitute a paper medium instead of coin.” This passage shows thew clear sense of the writer, that the prohibition was aimed at a paper medium, which was intended to circulate as currency; and to that alone.
But it has been said, that bills of credit, in the sense of the constitution, are those only which are made by the act creating them a tender in payment of debts. To this argument, it might be sufficient to quote the answer of the Chief Justice, in delivering the opinion of the Court in the case of Craig v. The State of Missouri. “ The constitution itself,” (said he) “furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit; not to bills of credit of a particular "description. That tribunal must be bold, indeed, which, without the aid of other explanatory words, could venture on this construction. It is the less admissible in this case, because the same clause of the constitution contains a substantial prohibition to the enactment of tender laws. The constitution, therefore, considers the emission of bills of credit and the enactment of tender laws; as distinct operations; independent of each other, which may be separately performed. Both are forbidden. To sustain the one, because it is not also the other; to say, that'bills of .credit may be emitted, if they be not a .tender of debts; is in effect, to expunge that distinct independent prohibition, and to read the clause, as if it had been entirely omitted. We are not at liberty to do this.”
But, independently of that reasoning, the history of our country proves that it is not of the essence of bills of credit, it is not a part of their definition, that they should be a tender in payment of debts. Many instances, in proof of this, were given in the opinion so often alluded to. Not a single historian upon this subject alludes to any such ingredient, as essential or indispensable.
It has been Said, (and it has never been denied,) that the very first issue of bills of credit by any of the colonies, was by the province of Massachusetts, in 1690. The form of these bills was; “this indented bill of ten shillings, due from the Massachusetts colony to the possessor, shall be in value, equal to money, and shall be ac*334cordingly accepted by the treasurer and receivers subordinate to him, in all public payments, and for any stock at any time in the treasury.” Then followed the date and the signatures of the committee authorized to emit them.* They were not made a tender in payment of debts, except of those due to the state. In 1702, 3 Anne, ch. 1, another emission of bills of credit for fifteen thousand pounds, was authorized in the same form: but they were not made a tender by the act; and the then duties of impost and excise were directed to be applied to the discharge of those bills, as also a tax of ten thousand pounds on polls and estates, real and personal, to be levied and collected, and paid into the treasury in 1705. A subsequent act, passed in 1712, made them a tender in payment of private debts. In 1716, art. of 3d Geo. 1, ch. 6, a further emission of one hundred and fifty thousand pounds in “bills of credit,” was expressly authorized to be made in the like form; to be distributed among the different counties of the province in a certain proportion stated in the act; and to be put into the hands of five trustees in each county, to be appointed by the legislature, to be let out by the trustees on real security in the county, in certain specified sump, for the space of ten years, at five.per cent per annum. The mortgages were to be made to the trustees, and to be sued for by them'; and the profits were to be applied to the general support of the government. These bills were not made a tender. Now, this act is most important to show that the fact, that the bills of credit were to be let out on mortgage, was hot deemed the slightest degree material to the essence of such bills. An act for the emission of bills of credit, not materially different in the substance of its provisions, had been passed in 1714, 1 Geo. 1, ch. 2. Another act for the emission of fifty thousand pounds, in bills of credit, was passed in 1720, 7 Geo. 1, ch. 9, containing provisions nearly similar; except that the trustees were to be appointed by the towns, and the profits were to be received by the towns, and a tax of fifty thousand pounds on polls and estates, was authorized to be raised to redeem the same. In 1720, the colony of Rhode Island issued bills of credit, nearly in the form of the Massachusetts bills; and they were made a tender in payment of all debts, excepting special ones; and similar bills were issued in 1710, and 1711. In 1715, another issue was authorized, to be let out by trustees and committees of towns on mortgage, for ten years. There *335is no clause in the act declaring them a tender. The same year another emission was authorized.
In 1709, the colony of Connecticut authorized an emission of bills of credit in a similar form; appropriating a tax for their redemption. There was no clause making them a tender. Numerous other acts of the like nature, were passed between that period and 1731; some of which made them a tender, and others not.
In 1709, the colony of New York issued bills of credit, in a form substantially the same: and they were made atender in the payment of debts, and these bills were to bear interest. Many other emissions of bills of credit were from time to time authorized to be made in similar forms; they were generally made a tender; and generally funds were provided for their due redemption.
In 1722, the province of Pennsylvania issued bills of credit, in a form not substantially different from those of the New England states; which were delivered to trustees, to be loaned on mortgages, on land, or ground rents: and they were made a tender in payment of all debts. Other emissions, for like purposes, were authorized by subsequent laws. In the year 1739, an emission of bills of credit was authorized by the state of Delaware, for similar purposes, and in a similar form, to be loaned on mortgages. They were made a tender in payment of debts, and a sinking fund was provided.
In 1733, Maryland authorized an emission of bills of credit, to the amount of ninety thousand pounds, to be issued by and under the management of three commissioners, or trustees who were incorporated by the name of "The Commissioners or Trustees for emitting Bills of Credit;” and by that name might sue and be sued, and sell all real and personal estate granted them in mortgage, &c. These bills of. credit, with certain exceptions, were to be lent out, on interest, by the commissioners or trustees, at four per cent., upon mortgage or personal security; and a sinking fund was provided for- their redemption, &c., and they were made a- tender in payment of debts. Another emission was authorized in 1769; and two commissioners were appointed to.emit the bills, to be called “ Commissioners for emitting Bills of Credit;” and by that name to have succession, and to sue and be sued. These bills also weré to be let out by the commissioners, on security; and a fund was provided for their redemption. These bills were not made a tender.*
*336In Virginia, bills of credit were issued as early as 1755, under the name of treasury notes; which bore interest, and Were made a tender in payment of debts. Emissions were subsequently made at other periods, and especially in 1769, 1771, and 1773. These three last were not made a tender. In 1778, another emission of them was authorized, which were made a tender; and a fund was pledged for their redemption. Many other issues were subsequently made, which were a tender: What demonstrates that these treasury notes were deemed bills of credit, is the fact, that by an act passed in 1777, ch. 34, it was made penal for any person to “issue or offer in payment any bill of credit, or note, for any sum of money payable to the bearer;” and that the act of 1779, ch. 24, makes it a felony for any person to steal any bill of credit, or treasury note, or “loan office certificate of the United States, or any of them;” and that the act of 1780, ch. 19, after reciting, that the exigencies of the war requires the emission of paper money, &c., authorizes the emission of new treasury notes, and proceeds to punish with death any person who shall forge “ any bill of credit or treasury, note, to be issued by virtue of this act.” In 1748, North Carolina authorized the emission of bills of credit, which were made a tender, and a fund was provided for their redemption; and many subsequent emissions were authorized, with similar proyisions.
In 1703, South Carolina first issued bills of credit. They were to bear an interest of twelve per cent. Funds were provided for their redemption. They do not seem originally to have been made a tender. Many other acts for the emission of bills of credit were, from time to time, passed by the colony; some, if not all of which were made, a tender. One of these acts, passed in 1712, was of a peculiar nature; but as I have not been able to procure a copy of it, I can only refer to it as it is stated by Hewitt, 1 Hewitt, Hist. of S. Car. 204; who says: “At this time the legislature thought proper to establish a public bank, and issued forty-eight thousand pounds in bills of credit, called bank bills, for answering the exigencies of government, and for the convenience of domestic commerce. This money was to be lent out at interest on landed or personal security; and, according to the tenor *337of the act for issuing the same; it was to be sunk gradually by four thousand pounds a year, which sum was ordered to be pqid annually by the borrowers into the hands of the commissioners appointed for that purpose.” In 1760, Georgia authorized an emission of bills of credit to be let out at interest, and mortgages were to be taken by the commissioners. These bills were made a tender. Subsequent acts for issuing bills of credit were passed; but it is not necessary to recite them.
Congress, during the revolutionary war, issued more than three hundred millions of bills of credit. The first issue was in 1775, and the confederated colonies were pledged for their redemption. None of the bills of credit issued by congress were made a tender; probably from the doubt whether congress possessed the power to make them a tender. The form of those first issued was as follows: “ This bill entitles the bearer to receive , Spanish milled dollars, or the value thereof, in gold and silver, according to the resolutions of congress.” The last emission was made in 1780, under the guarantee of congress, and was in the following form: “ The possessor of this bill shall be paid Spanish milled dollars by the 31st of December, 1786, with interest, in like money, at the rate of five per cent, per annum, by the state of according to an act of the legislature of the state of the day of 1780.” The indorsement by congress was, “ The United States insure the payment of the within bill, and will draw bills of exchange annually, if demanded, according to a resolve of congress of the 18th of March, 1780.” These bills were expressly required by congress to issue on the funds of the individual states established for that purpose; and the faith of the United States was pledged for their payment. They were made receivable in all public payments.
I will close this unavoidably prolix, though, in my judgment, very important review of the history of bills of credit in the colonies; and during the revolution, with a reference to the act of 24th of Geo. 2, ch. 53, 1751, for regulating and restraining the issues of paper money in New England. That act, in its prohibitory clause, expressly forbids the issue of “ any paper bills, or bills of credit, of any kind or denomination whatsoever,” except for- certain purposes, and upon certain specified emergencies; and constantly speaks of “paper bills, or bills of credit,” as equivalent expressions; thus demonstrating that the true meaning of bills ot credit was paper emitted by the state, and intended to pass as enrrenev; or, in other *338words, as paper money. It further requires, that the acts authorizing such issues of “ paper bills or bills of credit,” shall provide funds for the payment thereof; and makes provisions for cases where, such “ paper bills or bills of credit” had been loaned out on security; and declares that “ no paper currency or bills of credit,” issued under the act, shall be a legal tender in payment of any private debts pr contracts whatsoever.
This historical review furnishes a complete answer to every argument which has been used on the present or on former occasions; which made the nature of bills of credit depend upon any other quality, than the simple one of being for money and negotiable, and designed to pass as paper money or paper currency. When it is said that it is of the essence of “ bills of credit,” that they should be a legal tender, we find that many of them never were a tender. Nay, that the enormous issues by the revolutionary congréss were altogether stripped of this quality. When it is said/ that to constitute bills of credit, their circulation as money must be enforced by statutable provisions; we find, that in many cases, from the very nature and character of the acts, no such compulsory circulation was contemplated. They did not in their form, generally, contain any express promise on the part of the state, to pay them, whether funds were provided or not; and the same form was used in both cases. There was, indeed, in my judgment, in every case an implied obligation and promise of the state to pay them; whether funds were provided or not. When it is said, that it is not a hill of credit unless credit is given to the state on its own express promise to pay, and not when the paper is only declared to be receivable in payment of debts due to the state; that there must be a promise to pay, and not merely á promise to receive: we find, that the very first issues of bills of credit were of this very character, and contained no promise; and yet the colonial legislatures appropriated to them the very name, as their true designation. When it is said, that a bill which, is payable on demand, is not a bill of credit; nor a bill which contains no promise to pay at a future day; we find, that-on their face nearly all the colonial issues were without any limitation of time, and were receivable in payments to the state, immediately upon their presentation; though funds for their redemption were not provided except in futuro. The issues by congress were, with a single exception, without any limitation of time as to payment, and were to be paid in gold or silver.
*339The emission of 1780, already stated, was to be paid at a future time. But congress made no express promise to pay any of their other issues; they simply pledged the colonies for their redemption; and yet congress called them bills of credit. When it is' said, that bills of credit cannot bear interest, for that disqualifies them for a paper currency; we find,,that in.point of fact, such bills were issued both by the colonies and by the revolutionary congress; and indeed, since, by the United States in the form of treasury notes. When it is said, that bills of credit are such only as are issued upon the mere credit of the state, and fiot bottomed upon any real or substantial fund for their redemption; we find, that in most cases, the colonial' bills of credit were issued upon such funds; provided by the very terms of the acts. The statute of 24 Geo. 2, ch. 53, also in terms applies the very phrase, not only to bills resting on the mere credit of the state, but also to bills having suitable funds provided for their redemption. It goes further, and prohibits the colonies, in future, from issuing such bills without providing suitable funds. In short, the history of bills of credit in the colonies, conclusively establishes, that none of these ingenious suggestions and distinctions, and definitions, were or could have been in the minds of the framers of the constitution. They acted upon known facts, and not theories; and meant, by prohibiting the states from emitting bills of credit, to prohibit any issue, in any form, to pass as paper currency or paper-money, whose basis was the credit, or funds, or debts, or promises of the states. They looked to the mischief intended to be guarded against in the future, by the light and experience of the past. They knew that the paper money, issued by the states, had . constantly depreciated, whether funds for its redemption were provided or not; whether there was a promise to pay, or a promise to .receive; whether they were payable with or without interest; whether they were nominally payable, in presentí, or in futuro. They knew that whatever paper currency is not directly and immediately, at the mere/will of the holder, redeemable in gold and silver, is, and forever must be liable to constant depreciation. We know the same facts as well as they. We know that the treasury notes of the United States, during the late war, depreciated fifty per cent.; that during the period of the suspension of specie payments, by our private banks, at the same period, though with capitals supposed to be ample; their bank bills sunk from fifteen to twenty-five per cent., below their nominal value. The bills of this very bank of the Commonwealth *340of Kentucky, of whose solid and extensive capital we have heard so' much; were admitted at the argument,.to have sunk fifty per cent, from their nominal value. The framers of the constitution could not, without irreverence, (not to use a stronger phrase) be presumed to prohibit names and not things; to aim a blow at the artificial forms in which paper currency might be clothed, and leave the substance of the mischief untouched and unredressed; to leave the states at liberty to issue a flood of paper money, with which to inundate the community, upon their own sole credit, funds and responsibility; so always; that they did not use certain prescribed forms of expression. If the states were to possess these attributes in ample sovereignty, it was worse than useless to place such a prohibition in the front of the constitution. It was holding out á solemn delusion and mockery to the people, by keeping the faith of the constitution to the ear, and breaking it to the sense. My judgment is, that any such interpretation of the constitution would be as unsound, as it would be mischievous. The interpretation for which I contend, is precisely that which was maintained by this Court in the case of Craig v. The State of Missouri; where all these ingenious suggestions, distinctions and definitions, to which I have alluded, were directly overruled. I might indeed have spared myself some labour in these researches, if I had not considered that case as in some measure assailed in the present decision; if, indeed, it is not shaken to its very foundation.
The next question in the case is, whether.the act of Kentucky establishing this bank is unconstitutional, by authorizing an emission of bills of credit in the shape of the bank bills or notes of that bank, within the prohibition of the constitution. The argument is, that the state cannot do that indirectly, which it cannot consistently with the constitution do directly; and that the bank corporation is here the sole and exclusive instrument of the state; managing its exclusive funds, for its exclusive benefit, and under its exclusive management.
Even this obvious principle, that the state cannot be permitted indirectly to do, what it is directly prohibited to do by the constitution, has been denied on the present occasion; upon what grounds of reasoning, I profess myself incapable of comprehending. That a state may rightfully evade the prohibitions of the constitution, by acting through the instrumentality of agents in the evasion, instead of acting in its own direet name, and thus escape from all its constitutional obligations; is a doctrine to which I can never subscribe: and which, for the honour of the country, for the good faith and integrity *341of the states, for the cause of sound morals, and of political and civil liberty, I hope may never be established. I find no warrant for any such doctrine in the case of Craig v. The State of Missouri; either in the opinion of the Court, or in that of the dissentient judges.
The other part of the argument, from which the conclusion is drawn that the act is unconstitutional, requires a more extended consideration. But before proceeding to that, it is proper to notice the statement at the bar, that the point of the constitutionality of this act hás been already decided by this Court. If so, I bow to its authority. I am not disposed to shake, even if I could, the solemn decisions of this Court, upon any great principles of law; and, a fortiori, not that which respects the interpretation of the constitution itself. But I shall require proof before I yield my assent that the point has been so decided. The case relied on is the Bank of the Commonwealth of Kentucky v. Wister, 2 Peters’ R. 318. In my judgment, that ease justifies no such conclusion. It was not even made or suggested, in the argument. It was not touched by the judgment of the Court. What was that case? Wister brought a suit in the circuit court of the United States in Kentucky, against the bank, to recover a sum deposited in the bank. The bank filed a plea to the jurisdiction of the Court; alleging that the bank was a body corporate, established by an act of the legislatúre of Kentucky, and “ that the whole capital stock of the said corporation, is exclusively and solely the property of the state, and that the state in her political sovereign capacity as a state, is the sole and exclusive and only member of the corporation.’? The Court decided, that the suit was rightfully brought against the corporation, and was within the jurisdiction of the circuit court. Why ? Because the Court were of opinion, that though the corporation was created by the state, the state was not even a member of the corporation. “ The president and directors alone, (said Mr. Justice Johnson, in delivering the opinion of the Court) constitute the body corporate, the metaphysical person liable to suit. Hence by the laws of the state itself, it is excluded from the character of a party, in the sense of the law, when speaking of a body corporate ” And in confirmation of this view of the matter, a passage was cited from the opinion in the United States Bank v. The Planters’ Bank of Georgia, 9 Wheat. R. 904. The learned judge then said, and this is the comment, on which so much reliance has been placed — “To which it may be added, that if a state did exercise any other power in or over a bank, or impart to it its sovereign attributes, it would be hardly *342possible to distinguish the issue of the paper of such banks from a direct issue of bills of credit, which violation of the constitution no doubt the state here intended to avoid.” Now this language imports, at most, only that a case might have existed, which would, have been a violation of the constitution, but which was admitted not to be the case before the Court; that is, where the state imparted its sovereign attributes to the corporation. The Court do not say, that the constitution of the United States had not been violated by the issue of the bank bills; for that question was never presented for their consideration : but only say, that the state did not intend to violate the constitution, and did not intend to communicate its sovereign attributes. Neither the facts of the confession, the declaration, nor the plea to the jurisdiction, in any manner, raised or could raise any such question. The corporation, as such, Was capable of suing and being sued, by the laws of Kentucky. However proper, then, the language might have been as an admonition of the danger to the bank, if their ground of objection to the jurisdiction was maintainable; it did not commit the Court in the slightest manner to any definitive opinion as to the constitutionality of its issues of bank paper.
Let us now proceed to. the consideration of the charter of the bank, and ascertain whether it is a mere agent of the state, and what are the powers and authorities which are given to it as to the issues of bank bills. The act of 1820, declares in the first section, that a bank shall be, and thereby is established, “in the name and on behalf of the Commonwealth of Kentucky;” under the direction of a president and twelve directors, to be chosen by the legislature from time to time by joint ballot of both houses. The second section declares the president and directors a corporation, by the corporate name, &c., conferring on the corporation the usual powers. The third section declares that the whole capital stock of the bank shall be exclusively the property of the Commonwealth of Kentucky; and no individual. or corporation shall be permitted to own or pay for any part of the capital of the bank. The fourth section declares that the president and directors shall have power to issue notes not under the denomination of one dollar, nor over one hundred dollars, signed by the president, and countersigned by the cashier. These bills or notes are, by subsequent sections, authorized to be made payable to order or to bearer, and to be negotiable accordingly; and they are declared to be receivable at the treasury, and by public officers in all payments of taxes and other debts to the state, and for county levies; and are to *343be payable and redeemable in gold and silver. The capital stock of thé bank is to consist of two millions of dollars, to be raised and paid as follows: all moneys paid into the treasury for the purchase of vacant lands of the state, and so much of capital stock owned by the state in the Bank of Kentucky, (which it seems had then stopped payment) as may belong to the state, after the affairs of that baiik were settled up, with the profits thereof not heretofore pledged or appropriated by law. And the treasurer of the state was required, from time to time, as he received moneys, or any of these accounts, to pay them to the bank. By other sections, the bank was authorized to discount bills of exchange and notes, and to receiv.e deposites, and to loan money on mortgage on real estate, distributing their loans in certain proportions among the citizens of the different counties,; and the interest arising from all loans and discounts, after payment of expenses, was' to be Considered as part of the annual revenue of the state, and subject to the disposition of the legislature. The notes of the Bank of Kentucky were also recei.vable in payment of all debts due to the Commonwealth Bank.
Such are the principal provisions of the charter. It is clear, therefores,"that the bank was a mere artificial body or corporation, created for the solé benefit of the state; and in which no other person had or could have any share or interest. The president and directors were the mere agents of the state, appointed and removable at its pleasure. The whole capital stock to be provided, consisted of the proceeds of the public lands and other property of the state, which should be paid over to the bank ’from time to, time by the treasurer of the state.^ The public lands themselves, and the other funds were not originally conveyed, to or vested in the corporation ; but'were, left in the free possession, of the state itself. The . president and directors had no interest whatsoever in the .institution, but only had the management of it, subject tc the control of the state. They were not personally liable for non-payment of üny of.the bills, or notes, or debts of the' bank; but only-for tííeir personal misconduct in any excess of issues or-debts beyond double the amount of the capital stock. The state was entitled to all the profits. And though the bills and notes of the bank were declared payable in gold and silver,' it seems that no human, being was made directly responsible for the payment; not the president and directors in their private capacity, for they contracted no personal responsibility; and not the state, (as we have been told at the argument,) because the state had not, in its *344own name, promised to pay them: nay, it is said, that these bibs and notes were not even issued on the credit of the state.
Another thing is quite clear; and that is, that as the'bank existed for the sole benefit of the state, and all its officers were appointed by the state, and removable at its pleasure, the state possessed an unlimited power over the corporation. . The whole fund possessed by it, whether they were capital stock, or debts, or securities, or real estate, or bank notes, belonged in fact to the state. The state was the equitable owner; and might at any time, without any violation of the rights of the corporation, which was its own exclusive agent, resume and appropriate these funds to itself, and might at its own pleasure repeal and annihilate the charter; and by its sovereign legislative act become, ipso facto, the legal owner, as it was in part the equitable owner of the property and franchise. I know of no princinle of law, or of the constitution, which would have been violated by such a course; for it would have been only conferring upon the equitable owner the legal title to his own estate and property, and resuming, on the part of the principal, the funds and the business confided to his agents.
The bills or notes of the bank were to circulate as currency. That is so palpable on the face of the charter, as not to have been even questioned at the argument. They were] then, stripped of mere technical forms, the bills of the state issued by the agent of the state, on the exclusive funds of the state, for the’ benefit and. profit of the state; to circulate as currency within the state, and without any other responsibility than that of the state. In what respect then do they differ from bills of credit of the state? I can perceive none.
In the first place, it is said that they were not issued On the credit of the state; and that the state is not responsible, directly, or indirectly, for their payment. I confess, until I heard the argument at the bar, I had not supposed that any. such proposition would be maintained, or could be maintainable. If these bills were not issued on the credit of the state, on whose credit were they issued? It is said, that they were issued on the credit of the corporation; and what is the corporation? A mere metaphysical being, the creature and agent of the state, having no personal existence, and incapable, per se, of any personal responsibility. The president and directors constituted that corporation, and were its sole members; and they were not personally liable. The official legal entity, called the president and directors, might be sued. But what then? The capital stock was *345not vested, in them, so. as tó be liable to-be taken in execution in a suit against them. Could a creditor of the corporation seize or sell the public land, on his execution against them? No one pretends that. Suppose the state should choose, as it well might, to assume the whole agency and funds of the corporation to itself; could the creditor have any redress against the state? It is admitted that he could not have any redress, because the state is not suable.
It is said that the bills are not taken on the credit of the state; because the state has not promised, in terms, to pay them. If it had so promised, the state not being suable, the holder could here have no . redress against the state. But I insist that, in equity, and in justice, the bills must be treated as the bills of the state; and that if the state were suable, a bill in equity would lie against the state, as the real debtor; as the real principal: and I say this upon principles of eternal justice, and upon principles ás old as the foundations of the common law itself. How can it be truly said, that tlmso bills were not taken on the credit of the state? Were they not to be paid out of the prorceeds of the public lands, and other property of .the state? .Were they not receivable in payment- of debts to the state, for the very reason that they were the issues of the state, for its own benefit? And was not credit given to the state, upon this very ground? It has been said at the argument, that funds were provided for the payment of the bills by the provisions of the charter; and therefore no credit to the state, ultra these funds, can be inferred. But surely the case of the old colonial bills of credit answers that position. They had funds assigned for their redemption; they in many cases had - mortgáges upon loans authorized to be made, as they are in the present' charter; and yet the legislature called them bills of credit. The colonies did not promise to pay them; and yet they deemed them their bills of credit. Why? Because in' truth, and in fact, and not upon any metaphysical .authoi’ities and. fictions, they were issued upon the general credit of the state: and if the funds pledged fell short .of the payment, the state was bound to redeem them. The argument on this head assumes the very matter in controversy. It assumes that the state never directly, or ultimately, held itself out as responsible for the payment of the bills; but that the holder trusted, and trusted exclusively, to the funds provided for him in the charter. Now, I deny this inference altogether. Because a state assigns funds for the payment of its debts or bills, does it follow, that the .holder trusts exclusively to those funds? When a creditor takes a pledge, *346or has a security for payment of his debt, does he thereby exonerate the debtor from all personal responsibility? If the agent is authorized to pledge certain funds of his principal for the payment of the debt, does that exonerate the principal from all personal liability? No such doctrine has ever yet been established to my knowledge, in any code .of law; and, least of all, in the common law. On the contrary, it is at the common law held incumbent on those who insist that there has been any exclusive credit given to a fund, to establish that fact, by clear and irresistible proofs.
Suppose in this very case the corporation had circulated, as it had a right to do, its own bank bills to the amount of 5,000,000 dollars; and the funds assigned by the state, and the funds in the hands of the corporation had been wholly inadequate to redeem them; would not the state have been hound in reason, in justice, and in equity, to pay the deficiency? Would a court of equity, for a moment, tolerate any private person to escape under such circumstances, from his own-responsibility for the acts and conduct of his agent, fully authorized by him? Would it not say, qui sentit commodum, sentire debet et onus? Would it be consistent with good faith, for a-state to proclaim that it was not bound by the solemn obligations of its own agents, acting officially for its own exclusive benefit and interest, and upon its own funds; to the payment of debts thus justly and honestly contracted? I put these questions, because it seems to me that they can be answered only one way; and that is, by affirming the positive responsibility of the state, in foro justitiae. The citizens must be presumed to trust, in all such cases, to the general credit and good faith of the state; and not merely to the fund contemplated or provided for their redemption. So, in similar cases, the colonies understood their own obligations. So the continental congress, and so the United States have constantly understood their own obligations. 'Although a fund may have been provided for payment of their bills of credit; although those bills of credit contained no direct promise of the state; although-they purported, in form, to be the acts of trustees, or commissioners, or committees acting under the authority of the state; yet they well understood that the-general eredit of the state, for the redemption of the bills, was necessarily implied; and that without that silent necessary pledge, the bills could not, and would not have circulated at all; yxcept upon compulsion, and by irresistible power of the government.
If is obvious,that whether a state be suable or not, cannot consti*347tute a test, whether an instrument of currency issued by or on behalf of a state, be a bill of credit or not. It may be a bill of credit, although the state is not suable thereon; as was, in fact, the case with all the anti-revolutionary bills of credit: for the colonies never were suable. On the other hand, the state may expressly allow itself to be sued on an instrument issued in its behalf; and yet it may not be a bill of credit. As, for example, .a state may authorize suits to be brought for debts due by itself: and if it should issue, through its officers, a certificate of loan for money borrowed; if it were not intended to pass as currency, it would not be a bill of credit.
But it is said that here the state was not only not suable on these bank bills, but that the corporation itself was expressly suable under the charter, and the promise to pay was made by the corporation; and the promise being made by the corporation, it, in effect, excludes any obligation on the part of the state. There is no magic in words. What was this corporation in fact? A mere legal entity; a mere agent of the state, existing for the state, with funds belonging to the state, and dealing wholly upon the credit which' these bills derived from the state. The persons who were president and directors for the time being, were not, (as I have already said,) personally liable for the payment of those bills. .The metaphysical personage only was liable; and the promise, if it is not' to be treated as a mere delusion and phantom, was the promise of the state itself, through that personage. Suppose the state had authorized its treasurer, in his official capacity, and without any personal liability, to issue these very bank bills, saying-, “ I, A. B., as treasurer, promise to pay,” &c., and the whole proceeds of these bills were to be for the benefit of the state, and they were to be paid out of the funds of the state, in the treasury; could there be a doubt that the state would, in truth, be the real debtor? That they would be issued on its credit? That the state would, in conscience, in common honesty, in justice, be responsible’for their payment? If this would be true, in such a case, I should be glad to know in what respect that case substantially differs from the one before the Court? It is precisely the very case, and in the same predicament as the bills of credit issued by Maryland in 1733, and 1769. There the commissioners were created a corporation, and were to issue the bills, and were authorized to sue and be sued; and no one ever dreamed, and least of all, the state itself, that they were not the bills of credit of the state. It a state can, by so simple a device as the creation of a corporation, as its own *348agent, emit paper currency on its own funds, and thus escape the solemn prohibitions of the.constitution; the prohibition is a dead letter. It is worse than a mockery. If we mean to give the constitution ariy rational interpretation on this subject, we must look behind forms, and examine things. We must ascertain for whose benefit, bn! whose credit, with whose funds, for what purposes, of currency or otherwise, the instrument is created, and the agency established. Whether it be the issue of a treasurer of a state, or of a -corporation of.a state, or of any other official personage, must be wholly immaterial. The-real question must be, in all cases; whether, in substance, it is the paper currency of the state?
But it has been argued, that if this bank be unconstitutional, all state banks founded on private capital, are unconstitutional. That proposition I utterly deny. It is not a legitimate-conclusion from any just reasoning applicable to the present case. The constitution does not prohibit the emission of all bills of credit, but only the emission of bills of credit by a state: and when I say, by a state, I mean by or in behalf of a state, in whatever form issued. It does not prohibit private persons, or private partnerships, or 'private corporations, (strictly so called,) from issuing bills of credit. No evils; or, at least, no permanent evils, have ever flowed from such a source. The history of the country had furnished no, examples of that sort, of a durable .-or widely extended public mischief. And if any should exist, it would be within the competency of the state legislatures to furnish, an adequate remedy against such issues by private persons. In point of fact, prohibitions, now exist in many states against private banking, and against the issue of private bank paper, with the intent that it shall pass as currency. The mischief was not there. It had never been felt in that direction. It was the issue of bills of credit, as a currency; authorized by the state on its own funds, and for its own purposes; which constituted the real evil to be provided against.. The history of such a currency constituted the darkest pages in the American annals, and had been written in the ruin of thousands, who had staked their property upon the public faith;always freely given, and but too often grossly violated. The great inquiry at the adoption of the constitution, was not whether private banks, corporate or incorporate, should exist; not whether they should be permitted to issue a paper currency or not; but whéther the state should issue it on its own account. The anxious inquiry then was, quis eustodiet custodes? The answer is found in the *349constitution; But it has,.in my judgment, (though I ¿m sure my brethren think otherwise,) become a .mere name. -Stat nominis umbra.
The states may create banks, as well as other corporations, upon private capital: and so far as this prohibition is concerned, may rightfully authorize them to issue bank bills or notes, as currency: subject always to the control of congress, whose powers extend, to the entire regulation of the currency of the country. When banks are created upon private capital, they stand upon that capital; and their credit is limited to the personal or corporate responsibility of the stockholders, as provided for in the charter. If the "corporate stock, and that only, by the charter is made liable for the debts of the bank, and that capital stock is paid in; .every holder of its bills must be presumed to trust exclusively to the fund thus provided, and the general credit of the corporation. And in such a case, a state owning, a portion of the funds, and having paid in its share of the capital stock, is treated like every other stockholder; and is understood to incur no public responsibility whatsoever. It descends to the character of a mere corporator, and does not act in the character of a sovereign. That was the doctrine of this Court, in The United States Bank v. The Planters’ Bank of Georgia, 9 Wheat. R. 904. “It is, (said the Court oh that occasion,) we think, a sound principle, that when a government becomes a partner in any trading company it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen.” In the present case, the legislature expressly prohibited any partnership, or participation with other persons in this bank. It set it up, exclusively upon the capital of the state, as the exclusive property of the state, and subject to the exclusive management of the state; through its exclusive agents. It acted, therefore, in its sovereign character and capacity; and could not, even for an instant, even in intendment of law, divest itself in the transactions of the bank of that character and capacity.
I have not thought it necessary, in the' views which I have taken of this case, to resort to the state of the pleadings, though they fortify every portion of the reasoning which I have endeavoured, to maintain. One of the averments in the first plea is, that the president and directors of the hank were illegally authorized, “for and on behalf of the commonwealth, and upon her credit, to make bills of credit, to emit bills or notes, to an amount not exceeding millions *350of dollars, &c., and when so made, &c.; to emit, issue, and circulate through the community for its ordinary purposes, as money.” The plea goes on to allege, that the president and directors had before the date of the note sued, on, “for, and on behalf of the commonwealth of Kentucky, and on her credit, made various bills, of credit, viz: notes of various denominations, in ainount, from one dollar to one hundred dollars, &c., promising therein, and thereby, to pay the person on each note mentioned, or bearer on demand, the amount therein mentioned in money, and were transferable by delivery.” The demurrer admits the truth of these averments; and upon technical principles of pleading, I do not see how their conclusiveness in the present question can be avoided. But I do not rely on the state of the pleadings. I found my judgment upon the principles presented by the admitted state of the facts, that these bank bills are bills of credit, within the true intent and méaning of the constitution; that they were issued by, and in behalf of the state; upon the credit of the state; by its authorized agents; and that the issue is a violation of the constitution.
I am conscious that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this Court,' in its intrinsic importance. I have done so, because I am of opinion, (as I have already intimated,) that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of .the Court, and the reasons of his dissent. I- have another and strong motive; my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that.this act is unconstitutional; I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would, have spoken in the joint names of both of us. I am sensible that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown that there, were solid grounds on which to rest his exposition of the constitution. His saltern accumulem donis, et fungar inani muñere.
The judgment of the court oi appeals of, tne state of Kentucky, is affirmed, with costs.
See the Acts establishing the Bank of New York, 1791; the Bank of Albany, in New York; the Bank of Pennsylvania, 1793; the Bank of New Jersey, 1823; the *331Bank of Baltimore, 1795; the Bank of Virginia; the State Bank of North Carolina, 1810; the Bank pf Georgia; the Bank of Kentucky, &c. &c.
See 3 Story’s Comment, on the Constitution, 231, note [2.]
I have been favoured with a sight of one of the original bills issued under the act of Maryland, of 1769. It is as follows: “ This indented bill of six dollars, shall *336entitle the bearer hereof to receive bills of exchange, payable in London, or gold and silver, at the rate.of four shillings and six pence "sterling, per dollar, for the said bill; according to the direction of an act of assembly of Maryland, dated at Annapolis, this 4th day of March, A. D. 1770. R. Conden,’ J. C. Clapham.” These gentlemen were, doubtless, the commissioners appointed under the act.