It is too plain for argument that a bank note is a bill of credit, and that no state under the federal constitution can issue a bill of credit;1 yet our federal supreme court has decided that the state may do so by the simple expedient of incorporating a bank with such power.2 It is also too plain for argument that, under the same section of the same article of the federal constitution, no state can make anything but gold and silver a legal tender; yet our highest court has practically decided the exact contrary,3 although the opinion says it does not. If the prohibition was to be made effective, a state was enjoined from creating corporations with power to emit bills of credit; yet in the same case the court held that the state might create a corporation with the power to issue its notes as currency.4

1 Art. 1, sec. 10, Fed. Const. See Sec. 311, notes 14 and 15, post.

2 Briscoe v. Bank of Commonwealth, 11 Pet. 257.

3 Briscoe v. Bank of Commonwealth, supra.

4 Briscoe v. Bank of Commonwealth, supra.

In fact the state gave the bank a franchise to issue bank notes. A franchise is a part of the power of the state given to the corporation. The opinion seemingly concedes that the state could not emit a bill of credit, yet it could give to a corporation part of the power which it did not have. A more perfect non sequitur cannot be imagined. Yet this opinion has been acquiesced in ever since;5 but the suppres-

5 The decision was made by a packed court, and overruled Craig v. Missouri, 4 Pet. 410, a most powerful decision by Chief Justice Marshall. The case was first argued in 1834, before a court composed of Marshall, Story, Thompson, McLean and Baldwin; Duvall and Johnson were absent. Three of those judges concurred in holding the state bank notes bills of credit, but no decision was pronounced, because the majority was not a majority of the whole court. A re-argument was ordered. Marshall and Johnson had died, and Duvall had resigned; Wayne, Taney and P. P. Barbour had taken their places, which made the last three, with McLean and Baldwin, all Jackson's appointees. The reargu-ment was had, and the cause decided in a singularly foolish, inept and futile opinion by Justice McLean. McLean afterwards died in the odor of sanctity because of his action on the slavery question, but this decision ought never to be forgotten. The evils of a worthless paper currency that cursed this country for so many years were all made possible by this reckless political decision. Sumner's Jackson, p. 363. The case was argued by Mr. White and Mr. Southard for the plaintiff in error, and by Mr. Hardin and Mr. Clay for the defendant. The really valuable part of Mr. White's argument the reporter has left out. Mr. Southard speaks of the change of the personnel of the court, and the probable change of opinion, and says: "Misera est servitus, ubi lex aut vaga aut incognita est." Judge Story's dissenting opinion, with its splendid eulogy of the great Chief Justice, is a masterpiece. The "wild-cat" banking from 1837 to 1860, and the debauching of the public mind as to paper money would not have been possible if the opinion of Marshall and Story had prevailed. " Jackson's appointments introduced the mode of action, by the executive, through the selection of judges, on the interpretation of the constitution by the supreme court. Briscoe's case marked the victory of Kentucky relief finance and states-right politics over the judiciary. The effect of political appointments to the bench is always traceable, after two or three years, in the reports, which, come to read like a collection of old stump speeches. The climax of the tendency which Jackson inaugurated was reached when the court went to pieces on the Dred Scott case, trying to reach a decision which should be politically expedient rather than one which should be legally sound." Sumsion of state banks of issue is achieved by the national tax of ten per centum upon state bank issues. This power cannot be successfully questioned.6