But, in addition to his long settled and ever-petrifying conservative views, we must also take into account the conditions and public temper existing in Virginia ninety years ago. Had the convention reached any other conclusion than that to which Marshall gently guided it, it is certain that the State would have been torn by dissension, and it is not improbable that there would have been bloodshed. All things considered, it seems unsafe to affirm that Marshall's course was not the wisest for that immediate period and for that particular State.
Displaying no vision, no aspiration, no devotion to human rights, he merely acted the uninspiring but necessary part of the practical statesman dealing with an existing and a very grave situation. If Jefferson could be so frightened in 1816 that he forbade the public circulation of his perfectly sound views on the wretched Virginia Constitution of 1776,[1362] can it be wondered at that the conservative Marshall in 1830 wished to compose the antagonisms of the warring factions?
The fact that the Nation was then facing the possibility of dissolution[1363] must also be taken into account. That circumstance, indeed, influenced Marshall even more than did his profound conservatism. There can be little doubt that, had either the radicals or the conservatives achieved an outright victory, one part of Virginia would have separated from the other and the growing sentiment for disunion would have received a powerful impulse.
Hurrying from Richmond to Washington when the convention adjourned, Marshall listened to the argument of Craig vs. Missouri; and then delivered one of the strongest opinions he ever wrote—the only one of his Constitutional expositions to be entirely repudiated by the Supreme Court after his death. The case grew out of the financial conditions described in the fourth chapter of this volume.
When Missouri became a State in 1821, her people found themselves in desperate case. There was no money. Banks had suspended, and specie had been drained to the Eastern commercial centers. The simplest business transactions were difficult, almost impossible. Even taxes could not be paid. The Legislature, therefore, established loan offices where citizens, by giving promissory notes, secured by mortgage or pledge of personal property, could purchase loan certificates issued by the State. These certificates were receivable for taxes and other public debts and for salt from the State salt mines. The faith and resources of Missouri were pledged for the redemption of the certificates which were negotiable and issued in denominations not exceeding ten dollars or less than fifty cents. In effect and in intention, the State thus created a local circulating medium of exchange.
On August 1, 1822, Hiram Craig and two others gave their promissory notes for $199.99 in payment for loan certificates. On maturity of these notes the borrowers refused to pay, and the State sued them; judgment against them was rendered in the trial court and this judgment was affirmed by the Supreme Court of Missouri. The case was taken, by writ of error, to the Supreme Court of the United States, where the sole question to be decided was the constitutionality of the Missouri loan office statutes.
Marshall's associates were now Johnson, Duval, Story, Thompson, McLean, and Baldwin; the last two recently appointed by Jackson. It was becoming apparent that the court was growing restive under the rigid practice of the austere theory of government and business which the Chief Justice had maintained for nearly a generation. This tendency was shown in this case by the stand taken by three of the Associate Justices. Marshall was in his seventy-sixth year, but never did his genius shine more resplendently than in his announcement of the opinion of the Supreme Court in Craig vs. Missouri.[1364]
He held that the Missouri loan certificates were bills of credit, which the National Constitution prohibited any State to issue. "What is a bill of credit?" It is "any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed.... 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."[1365] The Chief Justice goes into the history of the paper money evil that caused the framers of the Constitution to forbid the States to "emit bills of credit."
Such currency always fluctuates. "Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man." To "cut up this mischief by the roots ... the people declared, in their Constitution, that no state should emit bills of credit. 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 purpose of common circulation."[1366]
Incontestably the Missouri loan certificates are just such bills of credit. Indeed, the State law itself "speaks of them in this character." That the statute calls them certificates instead of bills of credit does not change the fact. How absurd to claim 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 ... may be performed by the substitution of a name." The Constitution is not to be evaded "by giving a new name to an old thing."[1367]